King v. McPherson et al

Filing 152

ORDER adopting portions of the 111 Report and Recommendation and denying Defendant Washington's 74 motion to dismiss without prejudice to re-assert statute of limitations. IT IS FURTHER ORDERED that Defendant Seibels ' 74 motion to dismiss is denied in part, and granted in part, and Plaintiff's claims brought against Defendant Seibels relating to the September 22, 2010/June 7, 2011 incident are dismissed with prejudice. IT IS FURTHER ORDERED that Defendant Shakedown Team's 76 motion to dismiss is granted and Plaintiff's claims against Defendant Shakedown Team are dismissed without prejudice. Signed by Honorable R. Bryan Harwell on 8/29/2016. (bgoo)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Curtis L. King,

)
)
Plaintiff,
)
)
v.
)
)
Official McPherson, Lee Corr Inst; Sgt
)
Boatwright, Lee Corr Inst; DHO Patterson, )
Lee Corr Inst; Warden Reynolds, Lee Corr )
Inst; Shake Down Team at Lee Corr Inst/ )
Turbeville; Capt. Pack, Turbeville Corr
)
Inst; Lt. Shannon, Turbeville Corr Inst;
)
Officer McElveen, Turbeville Corr Inst;
)
Officer Barnes, Turbeville Corr Inst; DHO )
Brown, Turbeville Corr Inst; Lt. Siebel,
)
Broad River Corr Inst; Capt. Washington, )
Broad River Corr Inst; W. Christopher
)
Swett, appointed counsel; Sgt. Carlton
)
Ashe; Sgt. Debra McFadden,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 0:15-cv-2358-RBH

ORDER

Plaintiff Curtis L. King, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983
against several individuals alleging civil rights violations, including excessive use of force, cruel and
unusual punishment, unlawful search, and a violation of his expectation of privacy. This matter is
before the Court on the motion to dismiss filed by Defendant Seibels1 and Defendant Washington [ECF
#74] and the motion to dismiss filed by Defendant “Shake Down Team”[ECF #76]. On April 8, 2016,
Magistrate Judge Paige J. Gossett issued her Report and Recommendation. [ECF #111]. These motions

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Defendant Gary Seibels, sometimes identified as Defendant “Seibel,” indicates in his response to the Report and
Recommendation that “Seibels” is the correct spelling of his last name. Therefore, this Court will identify the Defendant
with the correct spelling of his last name.

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were referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02(B)(2)(e). The Magistrate Judge recommended that the allegations against Defendants Washington
and the Shake Down Team be dismissed, and some of the claims against Defendant Seibels be
dismissed. On April 18, 2016, Plaintiff filed Objections to the Magistrate Judge’s Report and
Recommendation (“R&R”). [ECF #115]. On April 25, 2016 Defendants Seibels and Washington filed
a response in opposition to the R&R. [ECF #118]. Thereafter, Plaintiff supplemented his objections
on April 29, 2016 [ECF #124]. On May 5, 2016, Defendants filed a reply to Plaintiff’s objections. [ECF
#125]. Plaintiff filed a sur reply on May 11, 2016. [ECF #130].
Background
The factual and procedural background are adequately set forth in the R&R. Briefly, Plaintiff
alleges that Lt. Seibels used excessive force in violation of the Eighth Amendment by discharging
chemical munitions in his face on September 22, 2010. [ECF #5-1, p. 3]. Similarly, Plaintiff alleges
Lt. Seibels, Sgt. Boatwright and Capt. Pack used excessive force in violation of the Eighth Amendment
by spraying Plaintiff with chemical munitions on March 25, 2013. [ECF #5-1, p. 5].2 He further alleges
Sgt. McFadden violated his constitutional rights by entering his cell unannounced and invading his
privacy, resulting in Plaintiff’s exhibitionism charge. [ECF #5-1, p. 4].
Plaintiff’s Amended Complaint also includes allegations that DHO Brown and DHO Patterson
denied him due process during three disciplinary hearings for exhibitionism, refusal to obey orders, and
possession of an unauthorized drug. [ECF #5-1, pp. 3,4,6,7]. Plaintiff alleges that Officer McElveen,
Capt. Pack, and Officer Barnes denied him access to food for refusing to wear a pink jumpsuit. [ECF

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Plaintiff also attached the Incident Report for the M arch 25, 2013 incident where it appears Lt. Shannon and Sgt. Carlton
Ashe were also involved in this incident. [ECF #5-1, p. 13]. Plaintiff has named these two individuals as defendants, as well.

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#5-1, p. 7]. Plaintiff alleges Official McPherson did not provide him a winter jacket “fit for cold
weather” in violation of the Eighth Amendment. [ECF #5-1, p. 7]. Plaintiff further alleges Capt.
Washington and the Shake Down Team violated his constitutional rights by subjecting him to repetitive
anal cavity searches. [ECF #5-1, p. 8]. Finally, Plaintiff alleges Warden Reynolds had personal
involvement when he chose to “warrant” the Shake Down Team incident and exhibited deliberate
indifference in his response to complaints regarding the anal cavity searches. [ECF #47, p. 2]. Since
the filing of the lawsuit, DHO Patterson, Warden Reynolds, DHO Brown, and Mr. Swett have all been
dismissed from the lawsuit. The Magistrate Judge recommends granting the motion to dismiss as to
Defendant Washington, the Shake Down Team, and some of the claims against Defendant Seibels based
on the fact that the claims were not filed within the applicable statute of limitations. [ECF #111].
Standard of Review
A. Review of the Magistrate Judge’s Report & Recommendation
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a de novo
determination of those portions of the report and recommendation to which specific objection is made,
and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The district court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982). However, the Court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate’s proposed
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findings and recommendations.” Id. In the absence of specific objections to the R & R, the Court
reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005), and the Court need not give any explanation for adopting the Magistrate Judge’s
recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
B. Motion to Dismiss
Defendants Seibels and Washington have moved to dismiss the claims brought by Plaintiff
against them pursuant to Rule 12(b)(6). Under the standard set forth in Bell Atlantic Corp. v. Twombly,
127 S.Ct. 1955 (2007), a complaint must be dismissed pursuant to Rule 12(b)(6) if it fails to allege
“enough facts to state a claim to relief that is plausible on its face.” Giarratano v. Johnson, 521 F.3d
298 (4th Cir. 2008), citing Twombly, 127 S.Ct. at 1974. The purpose of such a motion is to test the
sufficiency of the facts alleged in a plaintiff’s complaint. See Edwards v. City of Goldsboro, 178 F.3d
231, 243 (4th Cir. 1999). Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a pleading
must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
While this standard “does not require ‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels
and conclusions,’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Likewise, “a complaint [will not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Rather, to survive a Rule
12(b)(6) motion to dismiss, the “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. The United States Supreme Court recently stated that
[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.”

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A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.
Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). When ruling on 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 Shake Down Team has moved to dismiss the claims brought by Plaintiff pursuant to Rules
12(b)(4) and (5) of the Federal Rules of Civil Procedure because Plaintiff fails to properly identify or
serve the Defendant “Shake Down Team.” When filing a lawsuit against an individual or organization,
a plaintiff is required to name the parties and properly have those parties served with notice of the
lawsuit. Fed R. Civ. P. 4(m). At the time Plaintiff filed this lawsuit, the federal rules required
defendants to be served within 120 days of filing suit. Defendant Shake Down Team alleges that
Plaintiff has failed to meet this pleading requirement by naming a generalized group, but otherwise not
identifying specific members within that group.
Discussion
I. Claims Against Defendant Seibels and Washington
Plaintiff argues that Defendant Seibels used excessive force against him on two separate
occasions by spraying him with chemical munitions while Plaintiff was on the ground. Plaintiff alleges
the first incident occurred on September 22, 2010 [ECF #5-1], while Defendant Seibels alleges this
incident occurred on June 7, 2011 [ECF #74, p. 3]. Plaintiff alleges the second incident occurred on
March 25, 2013. [ECF #5-1]. The Magistrate Judge recommends dismissal of some of Plaintiff’s
claims against Defendant Seibels because the Plaintiff’s complaint was not filed within the applicable
statute of limitations. [ECF #111, p. 7].

However, the Magistrate Judge does not recommend
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dismissing the claims related to the second incident occurring on March 25, 2013 because it is not
barred by the applicable statute of limitations since the Complaint was filed June 5, 2015, the date it
was delivered to prison authorities. [ECF #111, pp. 6-7]. The Magistrate Judge relies upon the fact that
the statute of limitations may be tolled when an inmate files a grievance procedure. [ECF #111, p. 5].
The Magistrate Judge recommends dismissal of all claims against Defendant Washington because,
much like the claims against Defendant Seibels, Plaintiff failed to file his Complaint prior to the running
of the applicable statute of limitations.
Plaintiff filed what appears to be his objections to the Magistrate Judge’s recommendation on
April 18, 2016. [ECF #115]. He also filed several supplemental documents thereafter, which this Court
has reviewed and considers as part of Plaintiff’s response to the R&R. [ECF #124; ECF #129; ECF
#130; ECF #132]. Albeit difficult to interpret, Plaintiff appears to object to the finding that the statute
of limitations runs as to these Defendants because he was unable to diligently pursue his claims, and
thus requests this Court apply the doctrine of equitable tolling. [ECF #115, p. 1]. In a related document
filed April 29, 2016, he objects to the R&R because he says he is being denied the right to prompt
notice of court orders. [ECF #124, p. 1]. He further objects on grounds that appear to be that his motion
to compel should have been granted. [ECF #124, p. 1]. In his third objection, he takes issue with
Defendant Seibels’s representation of the incident in question. [ECF #124, p. 1]. His fourth objection
appears to be that he has presented evidence sufficient to back his claim, but that the evidence was
undiscoverable notwithstanding a reasonable investigation of the facts. [ECF #124, p. 2]. Finally,
Plaintiff again requests this Court apply the doctrine of equitable tolling. [ECF #124, p. 2]. In a
document filed May 6, 2016, Plaintiff appears to object to the time established in a scheduling order
and in the response time to a motion to compel. [ECF #129, p. 2]. In a document filed May 11, 2016,
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wherein he replies to Defendants’ response to the R&R, he objects to the extent the R&R is read to
suggest that a grievance procedure encompasses all types of civil matters an inmate could bring in
federal court. [ECF #130, p. 1]. Finally he filed another document on May 19, 2016, that again appears
to relate to his motion to compel, though it is styled as a supplement to his response to Defendants’
reply to the R&R. [ECF #132].
Defendants filed a short response, as well, objecting to the application of the tolling of the
statute of limitations based on the filing of a grievance because they argue Plaintiff did not adequately
articulate this argument in any of his filings. [ECF #118, p. 2]. In spite of the mandated liberal
construction afforded pro se prisoners, Defendants argue that the Magistrate Judge may not conjure up
questions that the Plaintiff did not present to the Court. [ECF #118, p. 2]. See Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). After Plaintiff filed several supplements to his
objections, Defendants filed a short reply to his objections, again pointing out to the Court that Plaintiff
did not make any specific objections to the R&R. [ECF # 125].
This Court agrees with the Magistrate Judge that the claims against Defendant Seibels related
to the September 22, 2010/June 7, 2011 incident are time-barred. Plaintiff brought the claims in this
lawsuit pursuant to section 1983, which does not contain an express statute of limitations. Federal
courts thus apply the forum state’s statute of limitations for personal injury claims, which is the case
here. Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014) (“[T]o
determine the timely filing of a 1983 claim, courts borrow the statute of limitations from the most
analogous state-law cause of action.”). South Carolina affords plaintiffs three years to file a personal
injury lawsuit. S.C. Code Ann. § 15-3-530(5). Here, Plaintiff argues that the Court should toll the
applicable statute of limitations. Defendants argue that Plaintiff has not raised a sufficient objection
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to the R&R’s analysis that most of the claims against Defendants Seibels and Washington should be
time-barred; thus, it was error to rely on a tolling argument to keep the claims stemming from the March
2013 incident against Defendant Seibels in this case. However, pro se complaints are held to a less
stringent standard that those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). This Court is required to liberally construe complaints in such a way to allow the development
of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980).
This Court has previously recognized that, much like federal courts incorporate the applicable
state statute of limitations to § 1983 actions, so too do these actions incorporate state tolling rules.
Gunnells v. Goodman, No. 8:14-1978-MGL, 2016 WL 768845, at *1 (D.S.C. Feb. 29, 2016). Here,
because Plaintiff is required to exhaust his administrative remedies prior to filing a lawsuit pursuant to
§ 1983, the Goodman Court concluded that it is very probable that the Fourth Circuit would likely find
that the three year statute of limitations governing § 1983 actions would be tolled during the time period
that an inmate-plaintiff was statutorily required to exhaust his or her administrative remedies. Id.3 The
tolling time only extends until the date on which the inmate-plaintiff is due a final response, as opposed
to when prison officials actually respond to said grievance. Id. at *2. The South Carolina Department
of Corrections affords 180 days as the maximum period of allotted time for any inmate grievance. See
King v. Ozmint, No. 0:11-cv-01455-RBH, 2013 WL 4680532, at *5 (D.S.C. Aug. 30, 2013).
Applying these principles to Plaintiff’s causes of action against Defendant Seibels, even
assuming that the first incident occurred on June 7, 2011, Plaintiff’s claim is untimely. He had, at most,
three years and 180 days to file this lawsuit because he filed a grievance with SCDC regarding this
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The Fourth Circuit has not yet spoken on how the state tolling statute works in conjunction with § 1997(e) requiring the
exhaustion of administrative remedies of § 1983 claims. However, other circuits have found that the statute of limitations
is tolled where an inmate files a grievance within the prison concerning an incident giving rise to a § 1983 claim. See Flowers
v. Phelps, 514 F. App’x 100, n.1 (3d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 324-25 (2d Cir. 2011).

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incident. Because he filed this lawsuit well after that time frame expired, his claims related to this
incident against Defendant Seibels are time-barred. However, because the second incident occurred on
March 23, 2013, these claims clearly fall within the applicable three years time limitation.
Plaintiff does not provide a date of the alleged constitutional violation purportedly perpetrated
by Defendant Washington in the complaint. However, attached to the complaint is the grievance form
filed by Plaintiff related to the alleged anal cavity searches he claims Defendant Washington
unconstitutionally performed. That document was signed by Plaintiff on December 19, 2011. Plaintiff
may have filed his complaint timely, but at this stage in litigation, this Court cannot say whether the
limitations period has run, considering the maximum tolling period of 180 days afforded under the
grievance process and the uncertainty of the date of the incident. Plaintiff’s complaint may not be
necessarily time-barred as it relates to the claims alleged against Defendant Washington.4 This Court
finds that Defendant Washington’s motion to dismiss is denied without prejudice, and Defendant
Seibel’s motion to dismiss in granted in part, and denied in part.
II. Claims Against Shake Down Team
Defendant Shake Down Team filed its motion to dismiss pursuant to Fed R. Civ. P. 12(b)(4) and
(5) because Plaintiff failed to properly identify or serve this Defendant or anyone unnamed that
comprised the group involved as part of the “shake down team.” The Magistrate Judge recommends
dismissal of all claims against this Defendant, finding that Plaintiff failed to identify the Defendant’s
members and effectuate service of process.

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W ithin the R&R, the claims against Defendant W ashington were calculated as time-barred. The grievance document was
signed on December 19, 2011, but it is still unclear the date of the alleged incident and whether Plaintiff would benefit from
the 180 day tolling period. Accordingly, this Court rejects that portion of the R&R recommending dismissal of claims
against Defendant W ashington based on the running of the limitations period, because of the uncertainty presented by the
date of the grievance form.

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It does not appear that within the documents Plaintiff filed, he made any objection to the
dismissal of this Defendant due to ineffective service of process. The Court’s review of the R & R
reveals no clear error in its analysis of dismissal of the Shake Down Team based upon ineffective
service. See Diamond, 416 F.3d at 315 (stating a district court need only review the magistrate judge’s
R & R for clear error in the absence of specific objections). Although de novo review is not required
in light of Plaintiff’s nonspecific objections, the Court has nonetheless exercised its discretion and
conducted a de novo review of the R & R. After Plaintiff filed his amended complaint, Plaintiff was
afforded the opportunity to bring the case into proper form by adequately identifying members of the
Shake Down Team so that the United States Marshals could effectuate service. [ECF #11, ECF #43].
Notwithstanding the explanation to Plaintiff that he must provide and be responsible for giving the
United States Marshal adequate information to serve this Defendant, Plaintiff failed to provide any
additional identifying information. At the time Plaintiff filed his Complaint, the Federal Rules of Civil
Procedure afforded plaintiffs 120 days to effectuate service on defendants. FED R. CIV . P. 4(m). Despite
having the opportunity to conduct discovery to otherwise inquire into the members of the Shake Down
Team, Plaintiff did not comply with the time limits for discovery within the Magistrate Judge’s
scheduling order. [ECF #57, p. 1]. Thus, despite the fact that well over a year has passed since Plaintiff
filed a lawsuit against the “Shake Down Team,” he has yet to name and serve anyone associated with
this group. Accordingly, Defendant Shake Down Team’s motion to dismiss is granted, and Plaintiff’s
claims against Defendant Shake Down Team are dismissed without prejudice.
Conclusion
For the reasons stated above and by the Magistrate Judge, the Court overrules Plaintiff’s
objections and adopts and incorporates the portion of the Report and Recommendation of the Magistrate
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Judge that recommends granting Defendant Seibels’ motion to dismiss as to Plaintiff’s claims regarding
the incident that occurred either on September 22, 2010 or June 7, 2011. [ECF #111] The Court further
adopts that portion of the Report and Recommendation of the Magistrate Judge that recommends
granting Defendant Shake Down Team’s motion to dismiss without prejudice pursuant to Rule 4(m).
[ECF #111]. Accordingly, Defendant Washington’s motion to dismiss is DENIED without prejudice
to re-assert statute of limitations. Defendant Seibels’ motion to dismiss is DENIED in part, and
GRANTED in part. Defendant Shakedown Team’s motion to dismiss is GRANTED. Plaintiff’s
amended complaint [ECF #5-1] is hereby DISMISSED with prejudice as to the claims brought
against Defendant Seibels relating to the September 22, 2010/June 7, 2011 incident, and
DISMISSED without prejudice as to his claims against Defendant Shake Down Team.
IT IS SO ORDERED.
August 29, 2016
Florence, South Carolina

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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