United States District Court, D. South Carolina, Rock Hill Division
Curtis L. King, Plaintiff,
Official McPherson, Lee Corr Inst; Sgt Boatwright, Lee Corr Inst; DHO Patterson, Lee Corr Inst; Warden Reynolds, Lee Corr Inst; Shake Down Team at Lee Corr Inst/ Turbeville; Capt. Pack, Turbeville Corr Inst; Lt. Shannon, Turbeville Corr Inst; Officer McElveen, Turbeville Corr Inst; Officer Barnes, Turbeville Corr Inst; DHO Brown, Turbeville Corr Inst; Lt. Siebel, Broad River Corr Inst; Capt. Washington, Broad River Corr Inst; W. Christopher Swett, appointed counsel; Sgt. Carlton Ashe; Sgt. Debra McFadden, Defendants.
Bryan Harwell United States District Judge.
Curtis L. King, proceeding pro se, brought this
action pursuant to 42 U.S.C. § 1983 against several
individuals alleging civil rights violations, including
excessive use of force, cruel and unusual punishment,
unlawful search, and a violation of his expectation of
privacy. This matter is before the Court on the motion to
dismiss filed by Defendant Seibels and Defendant Washington
[ECF #74] and the motion to dismiss filed by Defendant
“Shake Down Team”[ECF #76]. On April 8, 2016,
Magistrate Judge Paige J. Gossett issued her Report and
Recommendation. [ECF #111]. These motions were referred to
the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02(B)(2)(e).The Magistrate Judge
recommended that the allegations against Defendants
Washington and the Shake Down Team be dismissed, and some of
the claims against Defendant Seibels be dismissed. On April
18, 2016, Plaintiff filed Objections to the Magistrate
Judge's Report and Recommendation
(“R&R”). [ECF #115]. On April 25, 2016
Defendants Seibels and Washington filed a response in
opposition to the R&R. [ECF #118]. Thereafter, Plaintiff
supplemented his objections on April 29, 2016 [ECF #124]. On
May 5, 2016, Defendants filed a reply to Plaintiff's
objections. [ECF #125]. Plaintiff filed a sur reply on May
11, 2016. [ECF #130].
factual and procedural background are adequately set forth in
the R&R. Briefly, Plaintiff alleges that Lt. Seibels used
excessive force in violation of the Eighth Amendment by
discharging chemical munitions in his face on September 22,
2010. [ECF #5-1, p. 3]. Similarly, Plaintiff alleges Lt.
Seibels, Sgt. Boatwright and Capt. Pack used excessive force
in violation of the Eighth Amendment by spraying Plaintiff
with chemical munitions on March 25, 2013. [ECF #5-1, p.
He further alleges Sgt. McFadden violated his constitutional
rights by entering his cell unannounced and invading his
privacy, resulting in Plaintiff's exhibitionism charge.
[ECF #5-1, p. 4].
Amended Complaint also includes allegations that DHO Brown
and DHO Patterson denied him due process during three
disciplinary hearings for exhibitionism, refusal to obey
orders, and possession of an unauthorized drug. [ECF #5-1,
pp. 3, 4, 6, 7]. Plaintiff alleges that Officer McElveen,
Capt. Pack, and Officer Barnes denied him access to food for
refusing to wear a pink jumpsuit. [ECF #5-1, p. 7]. Plaintiff
alleges Official McPherson did not provide him a winter
jacket “fit for cold weather” in violation of the
Eighth Amendment. [ECF #5-1, p. 7]. Plaintiff further alleges
Capt. Washington and the Shake Down Team violated his
constitutional rights by subjecting him to repetitive anal
cavity searches. [ECF #5-1, p. 8]. Finally, Plaintiff alleges
Warden Reynolds had personal involvement when he chose to
“warrant” the Shake Down Team incident and
exhibited deliberate indifference in his response to
complaints regarding the anal cavity searches. [ECF #47, p.
2]. Since the filing of the lawsuit, DHO Patterson, Warden
Reynolds, DHO Brown, and Mr. Swett have all been dismissed
from the lawsuit. The Magistrate Judge recommends granting
the motion to dismiss as to Defendant Washington, the Shake
Down Team, and some of the claims against Defendant Seibels
based on the fact that the claims were not filed within the
applicable statute of limitations. [ECF #111].
Review of the Magistrate Judge's Report &
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court is charged with making a de novo
determination of those portions of the report and
recommendation to which specific objection is made, and the
Court may accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge, or recommit the
matter to the Magistrate Judge with instructions. 28 U.S.C.
district court is obligated to conduct a de novo
review of every portion of the Magistrate Judge's report
to which objections have been filed. Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). However, the
Court need not conduct a de novo review when a party
makes only “general and conclusory objections that do
not direct the [C]ourt to a specific error in the
[M]agistrate's proposed findings and
recommendations.” Id. In the absence of
specific objections to the R & R, the Court reviews only
for clear error, Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate
Judge's recommendation. Camby v. Davis, 718 F.2d
198, 199-200 (4th Cir. 1983).
Motion to Dismiss
Seibels and Washington have moved to dismiss the claims
brought by Plaintiff against them pursuant to Rule 12(b)(6).
Under the standard set forth in Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955 (2007), a complaint must be
dismissed pursuant to Rule 12(b)(6) if it fails to allege
“enough facts to state a claim to relief that is
plausible on its face.” Giarratano v.
Johnson, 521 F.3d 298 (4th Cir. 2008), citing
Twombly, 127 S.Ct. at 1974. The purpose of such a
motion is to test the sufficiency of the facts alleged in a
plaintiff's complaint. See Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Rule
8(a)(2) of the Federal Rules of Civil Procedure provides that
a pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” While this standard “does not require
‘detailed factual allegations, ' . . . [a] pleading
that offers ‘labels and conclusions, ' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Likewise, “a
complaint [will not] suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Iqbal, 129 S.Ct. at 1949
(quoting Twombly, 550 U.S. at 557). Rather, to
survive a Rule 12(b)(6) motion to dismiss, the
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. The United States Supreme
Court recently stated that
[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.” A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
Iqbal, 129 S.Ct. at 1949 (quoting Twombly,
550 U.S. at 570). When ruling on a motion to dismiss, the
court “must accept as true all of the factual
allegations contained in the complaint.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007).
Shake Down Team has moved to dismiss the claims brought by
Plaintiff pursuant to Rules 12(b)(4) and (5) of the Federal
Rules of Civil Procedure because Plaintiff fails to properly
identify or serve the Defendant “Shake Down
Team.” When filing a lawsuit against an individual or
organization, a plaintiff is required to name the parties and
properly have those parties served with notice of the
lawsuit. Fed R. Civ. P. 4(m). At the time Plaintiff filed
this lawsuit, the federal rules required defendants to be
served within 120 days of filing suit. Defendant Shake Down