United States District Court, D. South Carolina, Charleston Division
Bilal A. Al-Haqq, #126806, Plaintiff,
A/W Dean, et al., Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE
GORDON BAKER UNITED STATES MAGISTRATE JUDGE
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.
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).
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
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
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.
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. . . .”
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
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 ...