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King v. McPherson

United States District Court, D. South Carolina, Rock Hill Division

August 29, 2016

Curtis L. King, Plaintiff,
v.
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.

          ORDER

          R. Bryan Harwell United States District Judge.

         Plaintiff 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[1] 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].

         Background

         The 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. 5].[2] 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].

         Plaintiff's 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].

         Standard of Review

         A. Review of the Magistrate Judge's Report & Recommendation

         The 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. § 636(b)(1).

         The 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).

         B. Motion to Dismiss

         Defendants 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 alleged.

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).

         The 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 Team ...


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