Al-Haqq v. Dean

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

         The Plaintiff, proceeding pro se and in forma pauperis, brought this action pursuant to Title 42, United States Code, Section 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration.

         This matter is before the Court upon Defendant Dr. Lemons' (hereinafter referred to as “Dr. Lemon”) Motion to Dismiss (Dkt. No. 27). For the reasons set forth herein, the undersigned recommends granting Dr. Lemon's Motion to Dismiss (Dkt. No. 27).

         FACTUAL BACKGROUND

         On or about February 14, 2017, Plaintiff filed a document entitled “Declaration of Bilal A.Al-Haqq #126806 Dated February 12, 2017.” (See Dkt. No. 1.) This document was originally filed in a different case, Al-Haqq v. Bryant, Civ. A. No. 2:14-cv-00008-MGB. On February 24, 2017, the undersigned issued the following text order in Al-Haqq v. Bryant, Civ. A. No. 2:14-cv-00008-MGB:

TEXT ORDER: Judgment was entered in this case on November 15, 2016, judgment has been satisfied, and this case is now closed. Nonetheless, Plaintiff subsequently filed a document labeled as an “order to show cause for permanent injunction” (DE# 177), with a declaration (DE#187) in support. Plaintiff's document (DE# 177) indicates that he is attempting to bring an action “under 28 U.S.C. 2283 and 2282" and is seeking injunctive relief. Therefore, the Clerk of Court is directed to term the motion (DE#177), to open a new case as of the date of this order, and to file Plaintiff's documents (DE# 177, 187) as the pro se Complaint in the new case. The Clerk of Court should not accept any further filings in the closed case (No.2:14-cv-8-MGB). Additionally, Plaintiff filed a declaration (DE# 186), which appears to complain that he has been denied medical care in February 2017. Therefore, the Clerk of Court is directed to open a second new case as of the date of this order, and to file Plaintiff's document (DE# 186) as the pro se Complaint there. Counsel in the closed case has no responsibility regarding the two new cases. Entered at the direction of Magistrate Judge Mary Gordon Baker on 2/24/2017.

(Dkt. No. 189 in Civ. A. No. 2:14-cv-00008-MGB.) Pursuant to this Text Order, the Clerk opened the case sub judice.

         On March 1, 2017, the undersigned issued an Order giving Plaintiff a specified period of time to bring the instant case into proper form. (Dkt. No. 5.) Plaintiff complied with that Order; he also filed a Motion to Amend his Complaint. (Dkt. No. 9.) On March 17, 2017, the undersigned issued the following Text Order granting Plaintiff's Motion to Amend:

TEXT ORDER granting 9 Motion to Amend/Correct. The Plaintiff's Motion to Amend his Complaint is hereby GRANTED. The Clerk of Court is directed to add Plaintiff's “Supplemental Complaint” to his Complaint and file the combined document as his Amended Complaint. Additionally, the Clerk of Court is directed to add Dr. Alden and Dr. Lemon[] as Defendants in this case.

(Dkt. No. 12.) This case is proceeding upon Plaintiff's Amended Complaint. (Dkt. No. 14; see also Dkt. No. 58.)

         Plaintiff alleges in his Amended Complaint that he was “dashed in the face with chemicals” during a February 8, 2017 assault while he was incarcerated at Turbeville Correctional Institution. (Dkt. No. 14 at 1 of 4; Dkt. No. 14-2 at 1 of 37.) He contends that approximately three days after arriving at MacDougall Correctional Institution, after being transferred from Turbeville Correctional Institution, he was “finally seen at medical . . . about being dashed in the face with chemicals and [his] shoulder injury due to the February 8[] assault.” (Dkt. No. 14 at 1 of 4.) According to Plaintiff, Nurse Palmer “gave Plaintiff an eye exam and requested that blood work be done to determine what had been thrown in Plaintiff's face, but Dr. Alden denied the request to have the blood work done. . . .” (Id.)

         Plaintiff alleges that on March 9, 2017, he “was seen at medical by the eye doctor Dr. Lemon[].” (Dkt. No. 14 at 2 of 4.) According to Plaintiff, Dr. Lemon told Plaintiff, “Everything that you need done, they've told me that I can't do.” (Id.) Plaintiff asserts his eyes were irritated, and Dr. Lemon “prescribed that [Plaintiff] be permitted to wear shades inside due to harsh lighting.” (Id.) Plaintiff also alleges that Dr. Lemon prescribed liquid tears for six months to flush Plaintiff's eyes. (Id.) However, Plaintiff alleges that on March 11, 2017, “Plaintiff was informed by Lt. Howell that the doctor had backtracked, drew a line through permission to wear shades inside, and wrote in that Plaintiff has permission to wear shades outside.” (Dkt. No. 14 at 3 of 4.) According to Plaintiff, SCDC policy allows all inmates “to wear shades outside, and changing the treatment without any notification to Plaintiff suggests that Dr. Lemon[] has worked in concert to further violate[] the Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment, and to receive adequate medical care.” (Id.)

         STANDARD OF REVIEW

         On a 12(b)(6) motion, a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not ...