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Noe v. South Carolina Department of Corrections

United States District Court, D. South Carolina

August 28, 2018

Cody Allen Noe, Plaintiff,
v.
South Carolina Department of Corrections; Officer Hines; Sergeant Williams, Defendants.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin United States Magistrate Judge

         This matter is before the Court on a motion for permanent injunction. [Doc. 24.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.

         Plaintiff filed this pro se action on January 24, 2018.[1] [Doc. 1.] Plaintiff filed a motion for permanent injunction on March 22, 2018. [Docs. 24; 24-1 at 1.] Defendants filed a response on June 28, 2018. [Doc. 59.] Plaintiff did not file a reply to Defendants' response and the time to do so has now run. Accordingly, the motion is ripe for review.

         BACKGROUND

         Plaintiff is an inmate incarcerated in the South Carolina Department of Corrections (SCDC). He alleges he was the victim of an incident of excessive force on June 28 or 29, 2017, at Broad River Correctional Institution, where he was incarcerated. [Docs. 1 at 5; 24.] His complaint requests money damages. [Id. at 6.] In his motion for permanent injunction, Plaintiff seeks a “transfer from [SCDC] to the Department of Mental [H]ealth under S.C. Code Sec. § 44-23-210(3), ” which he describes as “mandatory law.” [Doc. 24.] In support of his motion, Plaintiff claims that he is “[a] mental health patient” taking “3 kinds of psychotic medications.” [Id.] He claims that continuing to be housed at SCDC is causing him to have a “constant fear for his health and life, ” which is exacerbating his mental problems. [Id.]

         APPLICABLE LAW

         S.C. Code Ann. § 44-23-210 states that

A person confined in a state institution or a person confined in a state or private mental health or intellectual disability facility may be transferred to another mental health or intellectual disability facility if:
(1) the director of a state institution not under the jurisdiction of the Department of Mental Health requests the admission of a person confined there to a state mental health facility if the person is suspected of having a mental illness. . . .
(2) the director of a facility in which the patient resides determines that it would be consistent with the medical needs of the person, the Department of Mental Health may transfer or authorize the transfer of the patient from one facility to another. . . .
(3) the legal guardian, parent, spouse, relative or friend of an involuntary patient submits a request for the transfer of the patient from one Department of Mental Health facility to another. . . .

S.C. Code Ann. § 44-23-210 (emphasis added).

         Defendants argue that Plaintiff is a prisoner incarcerated in SCDC, not a patient of a Department of Mental Health facility, and thus that S.C. Code Ann. § 44-23-210(3) does not apply to him. [Doc. 59 at 1.] Defendants further contend that, in any event, SC Code Ann. § 44-23-210 is discretionary and not mandatory and therefore would not entitle Plaintiff to an injunction requiring his transfer even if it did apply to him. See S.C. Code Ann. § 44-23-210 (providing that a person “may be transferred to another mental health or intellectual disability facility” if the specified conditions apply (emphasis added)). The Court agrees that Plaintiff is not entitled to an injunction requiring his transfer to the Department of Mental Health.[2]

         RECO ...


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