United States District Court, D. South Carolina
Tequan L. Brown, Plaintiff,
Jim May; Jeffery Long; Jeffery Scott; Bryan P. Stirling; Charles Williams, Defendants.
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE
plaintiff, Tequan L. Brown, a self-represented state
prisoner, filed this civil rights action pursuant to 42
U.S.C. § 1983. Plaintiff files this action in forma
pauperis under 28 U.S.C. § 1915 and § 1915A.
This matter is before the court pursuant to 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report
and Recommendation on Plaintiff's motion for a
preliminary injunction (ECF No. 3) and Defendant Bryan P.
Stirling's motion to dismiss (ECF No. 62). Stirling filed
a response to Plaintiff's motion for a preliminary
injunction (ECF No. 19) and Plaintiff filed a reply. (ECF No.
45). Pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), the court advised Plaintiff of the summary
judgment and dismissal procedures and the possible
consequences if he failed to respond adequately to the
defendant's motion. (ECF No. 63.) Plaintiff filed a
response in opposition to the motion (ECF No. 72), and
Stirling filed a reply (ECF No. 79). Having reviewed the
record presented and the applicable law, the court finds
Stirling's motion to dismiss should be granted and
Plaintiff's motion for a preliminary injunction should be
terminated in light of that recommendation.
following allegations are taken as true for purposes of
resolving Stirling's motion to dismiss. Plaintiff is an
inmate currently confined at the McCormick Correctional
Institution of the South Carolina Department of Corrections
(“SCDC”). Plaintiff is housed in Statewide
Protective Custody (“SWPC”), a housing unit for
inmates with special security concerns. Plaintiff was placed
in SWPC on August 26, 2016 because other inmates threatened
Plaintiff. (Am. Compl. ¶¶ 13-14, 22, 32, ECF No. 55
at 5, 7, 9.)
raises two claims against Defendant Stirling. First,
Plaintiff claims Stirling has been deliberately indifferent
to threats on Plaintiff's life by other SWPC inmates.
Plaintiff has received specific threats on his life because
Plaintiff provided information to federal and state law
enforcement officials in a high-profile murder investigation.
(Id. ¶¶ 16, 19, 21, 35-36, 46, ECF No. 55
at 5-7, 10). Specifically, three other inmates in SWPC have
told Plaintiff that a gang has a bounty on his head, and one
of those inmates, Timothy R. Rainey,  told Plaintiff that Rainey
received $5, 000 to stab Plaintiff. (Id.
¶¶ 35-36. ECF No. 55 at 10.) Rainey tried to hit
Plaintiff in the face with a lock in a sock, and another
inmate twice came into Plaintiff's cell with knives.
(Id. ¶ 38, ECF No. 55 at 11.) Separately,
Plaintiff also informed SCDC's Jeffery Scott, the
Assistant Chief of Police Services, of these encounters.
(Id. ¶¶ 8, 39, ECF No. 55 at 3, 11.)
Plaintiff informed Scott and Defendant Stirling, the Director
of SCDC, that Rainey was threatening Plaintiff. (Id.
¶ 43, ECF No. 55 at 12.) Plaintiff believes Rainey is
still currently a threat to Plaintiff. (Id.
¶¶ 52, 70, 79, ECF No. 55 at 15, 21, 25.)
Plaintiff claims Stirling has been deliberately indifferent
to the conditions of the SWPC facility. Plaintiff alleges
that inmates in SWPC are on lock-down for twenty-three to
twenty-four hours per day, sometimes go five to six days
without a shower, are not allowed to have religious services,
are not given legal research tools, and are limited to one
phone call per day. (Id. ¶ 50, ECF No. 55 at
14.) He further alleges that SWPC inmates are also denied
access to rehabilitation programs, GED programs, drug
treatment, and social services, and are not allowed to earn
work credits or good conduct credits. (Id. ¶
51, ECF No. 55 at 14-15.) Plaintiff seeks an injunction
requiring SCDC to provide these programs, services, and
benefits to inmates in SWPC. (Id. ¶ 79, ECF No.
55 at 25.)
filed this action on December 12, 2018. As to Defendant
Stirling,  Plaintiff raises claims pursuant to 42
U.S.C. § 1983 of failure to protect and deliberate
indifference to conditions of confinement in violation of the
Eighth Amendment. Plaintiff also seeks a temporary
restraining order and preliminary injunction requiring SCDC
to remove Rainey from SWPC. (ECF No. 3.)
Rule 12(b)(6) Standard
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) examines the legal sufficiency of the facts alleged
on the face of the complaint. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive
a Rule 12(b)(6) motion, “[f]actual allegations must be
enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). The “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.' ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). A claim is facially
plausible when the factual content allows the court to
reasonably infer that the defendant is liable for the
misconduct alleged. Id. When considering a motion to
dismiss, the court must accept as true all of the factual
allegations contained in the complaint. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The court “may
also consider documents attached to the complaint,
see Fed.R.Civ.P. 10(c), as well as those attached to
the motion to dismiss, so long as they are integral to the
complaint and authentic.” Philips v. Pitt Cty.
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)
(citing Blankenship v. Manchin, 471 F.3d 523, 526
n.1 (4th Cir. 2006)).
while the federal court is charged with liberally construing
a complaint filed by a pro se litigant to allow the
development of a potentially meritorious case, see,
e.g., Erickson, 551 U.S. 89, the
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleadings to allege
facts which set forth a federal claim, nor can the court
assume the existence of a genuine issue of material fact
where none exists. Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
Defendant Stirling's Motion to Dismiss
argues Plaintiff's claims should be dismissed because
Plaintiff has failed to exhaust his administrative remedies.
The court agrees.
bring a claim pursuant to 42 U.S.C. § 1983, a prisoner
must exhaust his administrative remedies as required by the
Prison Litigation Reform Act (“PLRA”),
specifically 42 U.S.C. § 1997e(a). Section 1997e(a)
provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are
exhausted.” This requirement “applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). Generally, to satisfy
this requirement, a plaintiff must avail himself of every
level of available administrative review. See Booth v.
Churner, 532 U.S. 731 (2001); but see Ross v.
Blake, 136 S.Ct. 1850 (2016) (describing limited
circumstances where exhaustion may be excused). The
exhaustion requirement will not be excused even where the
plaintiff alleges he is in imminent danger. See McAlphin
v. Toney, 375 F.3d 753, 755 (8th Cir. 2004);
Arbuckle v. Bouchard, 92 Fed.Appx. 289, 291 (6th
Cir. 2004). Those remedies neither need to meet federal
standards, nor are they required to be plain, speedy, and
effective. Porter, 534 U.S. at 524 (quoting
Booth, 532 U.S. at 739). Satisfaction of the
exhaustion requirement requires “using all steps that
the agency holds out, and doing so properly.”
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting
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