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Dowling v. United States

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

February 12, 2018

VERNON BRENT DOWLING, Plaintiff,
v.
UNITED STATES OF AMERICA; OFFICER WALKER; OFFICER PLATTS; LT. MERRILL; DOJ; FBOP; DIRECTOR SAMUELS FBOP; FEDERAL EMPLOYEES; HEALTH SERVICES STAFF; WARDEN MANSUKHANI; MS. WILLIAMS, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         The 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.

         Dowling 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.

         Dowling 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.

         This 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 review.

         II. STANDARD

         A. De Novo Review

         This 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).

         B. Pro Se Plaintiff

         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).

         C. Motion to Dismiss

         A Rule 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 ...


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