United States District Court, D. South Carolina, Rock Hill Division
C. NORTON UNITED STATES DISTRICT JUDGE
matter is before the court on Magistrate Judge Paige J.
Gossett's Report and Recommendation
(“R&R”), ECF No. 127, that the court grant
plaintiff Vernon Brent Dowling's (“Dowling”)
motions for preliminary injunctions and temporary restraining
orders, ECF Nos. 61 and 120, and grant in part and deny in
part defendants' motion to dismiss, ECF No. 87. For the
reasons set forth below, the court adopts the R&R, denies
Dowling's motions, and grants in part and denies in part
defendants' motion to dismiss. Additionally, the court
adopts those portions of the R&R which are not
inconsistent with this order.
R&R ably recites the relevant facts, and it is
unnecessary to review the details of the complaint. In short,
Dowling is currently an inmate at the Federal Correctional
Institution Beckley in West Virginia, but during the events
at hand was an inmate at the Federal Correctional Institution
Estill (“FCI Estill”), located in South Carolina.
Dowling contends that on July 26, 2017, his housing unit at
FCI Estill flooded with sewage. Prison staff evacuated
Dowling handcuffed from the housing units during the
flooding. While his cellmate was escorted through the flood
by the prison staff, the staff ordered Dowling to walk
through the sewage without assistance. While he was walking
through the sewage, Dowling slipped and fell in the sewage.
Two prison staff attempted to “snatch” Dowling up
after he fell despite his insistence that he was in pain.
After his fall, Dowling was placed in a different cell and
contends that he was denied medical care and hygiene products
until the following day. Despite repeated requests for
treatment, Dowling was denied treatment. Dowling was
eventually given ibuprofen, and upon complaining to the
warden of FCI Estill was told “if it's not on paper
it never happened.” Dowling also claims he has received
“inadequate treatment” for the injuries sustained
during his fall with psychiatric drugs, which have caused him
severe depression and mental anguish.
filed this pro se action pursuant to 42 U.S.C.
§ 1983 on October 16, 2016. He alleges that defendants
are responsible for negligence, and requests to be
transferred to a federal facility that is better equipped to
treat his injuries, and he also seeks damages.
filed separate motions for preliminary injunctions and
temporary restraining orders on June 19, 2017 and November 6,
2017. On November 20, 2017, defendants filed their opposition
to his motion for a temporary restraining order and
preliminary injunction. On August 11, 2017, the defendants
filed a separate motion to dismiss. Plaintiff responded to
the motion on October 30, 2017.
case is now before the court on the magistrate judge's
R&R, which recommends that the court: (1) deny
Dowling's motion for a temporary restraining order and
preliminary injunction, and (2) grant in part and deny in
part defendants' motion to dismiss. ECF No. 127 at 1.
Dowling filed objections to the R&R on December 18, 2017.
ECF No. 129. Defendants filed a reply on December 21, 2017,
ECF No. 132, and Dowling filed a sur-reply on January 2,
2018. ECF No. 135. The matter is now ripe for the court's
De Novo Review
court is charged with conducting a de novo review of any
portion of the magistrate judge's R&R to which
specific, written objections are made. 28 U.S.C. 636(b)(1).
The court may adopt the portions of the R&R to which the
petitioner did not object, as a party's failure to object
is accepted as agreement with the conclusions of the
magistrate judge. Thomas v. Arn, 474 U.S. 140,
149-50 (1985). The recommendation of the magistrate judge
carries no presumptive weight, and it is this court's
responsibility to make a final determination. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976).
Pro Se Plaintiff
is proceeding pro se in this case. Federal district
courts are charged with liberally construing complaints filed
by pro se litigants to allow the development of a
potentially meritorious case. See Hughes v. Rowe,
449 U.S. 5, 9-10 (1980). Pro se complaints are
therefore held to a less stringent standard than those
drafted by attorneys. Id. Liberal construction,
however, does not mean that the court can ignore a clear
failure in the pleading to allege facts that set forth a
cognizable claim. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
Motion to Dismiss
12(b)(6) motion for failure to state a claim upon which
relief can be granted “challenges the legal sufficiency
of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see
also Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (“A motion to dismiss under Rule
12(b)(6) . . . does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.”). To be legally sufficient, a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A Rule 12(b)(6) motion should not be
granted unless it appears certain that the plaintiff can
prove no set of facts that would support his claim and would
entitle him to relief. Mylan Labs., Inc. v. Matkari,
7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule
12(b)(6) motion, the court should accept all well-pleaded
allegations as true and should view the complaint in a light
most favorable to the plaintiff. Ostrzenski v.
Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan
Labs., Inc., 7 F.3d at 1134. “To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible ...