Goss v. Stirling et al

Filing 312

ORDER denying 279 Motion to Supplement; denying 279 Motion for Preliminary Injunction; denying 304 Motion to Amend/Correct; denying 309 Motion for Injunctive Relief. Signed by Magistrate Judge Shiva V. Hodges on 5/4/2021. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Darrell L. Goss,
Plaintiff,
vs.
Richard Cothran,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

C/A No.: 1:18-2124-BHH-SVH

ORDER

Darrell L. Goss (“Plaintiff”), proceeding pro se and in forma pauperis,
filed this action pursuant to 42 U.S.C. § 1983 against Richard Cothran
(“Defendant”), Warden of Turbeville Correctional Institution (“TCI”), in his
individual

capacity.

Plaintiff

alleges

Defendant

violated

his

Eighth

Amendment rights by failing to protect him from inmate assaults and the
threat of inmate assaults due to increased gang violence. All pretrial
proceedings in this case were referred to the undersigned pursuant to the
provisions of 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.).
This matter comes before the court on Plaintiff’s motion to supplement
and for injunctive relief [ECF No. 279], motion to amend/correct the court’s
prior order denying his third motion to compel [ECF No. 304], and another
motion for injunctive relief [ECF No. 309].

First, Plaintiff asks the court for leave to supplement his complaint and
for injunctive relief. [ECF No. 279]. He states that on May 9, 2019, he was
placed in the Restorative Unit in Lieber Correctional Institution (“LCI”) due
to ongoing threats and assaults by prison gangs, in particular members of the
gang the “the G’s,” Raymond Powell (“Powell”), Olin Brown (“Brown”), and
Robert M. Fulmer (“Fulmer”). Id. at 1–3. Plaintiff states he has reported his
concerns, but “no meaningful action has been taken to rectify the situation,”
and he “lives in great fear of one day being assaulted or otherwise harm[ed].

Id. at 3. Plaintiff seeks (1) to add the Warden of LCI, Brian Kendall
(“Kendall”), as a defendant and add a claim against him for failure to protect
him and (2) injunctive relief by having Brown and Fulmer transferred out of
the Restorative Unit. Id. at 4. 1
In response, Defendant has submitted an affidavit completed by
Kendall, attesting that Plaintiff “has never met the requirement for
protective custody,” Plaintiff “has never been injured on this unit,” and “there
is no documented threat from any of the three inmates that Goss has named
Plaintiff previously filed similar motions concerning alleged ongoing threats
to his safety at LCI. [See ECF Nos. 222, 223, 233; see also ECF No. 279 at 2].
The district judge denied those motions, noting “[t]his action involves only
Plaintiff’s claim against Defendant Cothran in his individual capacity for the
alleged violation of Plaintiff’s Eighth Amendment rights while he was housed
at [TCI]. This case has been pending for more than two years, and dispositive
motions have been filed and ruled upon; thus, to now expand the case to
include additional, unrelated claims against additional parties would be
wholly inappropriate, and the Court declines to do so.” [ECF No. 233 at 11].

1

2

in his motions for injunctive relief.” [ECF No. 292 ¶¶ 4–5]. Notwithstanding,
multiple searches for contraband have been conducted, and where
contraband has been found, “the offending inmate is charged and removed”
from the unit. Id. ¶ 6. As to the inmates specifically named by Plaintiff,
Powell has been transferred to another unit following a failed drug test, and
“Brown and Fulmer have not incurred any assault charges in a year, have not
demonstrated any threat of harm, have no documented hostile contacts with
Goss, and cannot be moved immediately without any type of substantiated
proof that they have caused harm or pose a documented threat of harm to
another inmate.” Id. ¶¶ 6–8. 2 Kendall attests that he and officers under his
command “are aware of Inmate Goss’s concerns and we will continue to
monitor the events of the Restorative Unit and any other allegations that
may come forth,” suggesting that if concerns continue, Plaintiff should
request protective custody status. Id. ¶ 12.
Defendant argues the court should deny Plaintiff’s motion because he
has failed to “demonstrate any injury, much less that he will suffer an
irreparable injury,” has not established that the threatened injury to himself
outweighs the harm the injunction would cause Defendant or that allowing

Additionally, in response to Plaintiff’s concerns, Kendall initiated an
evaluation of protective concerns, in which Plaintiff met with the associate
warden and others and declined to sign a protective custody request. [ECF
No. 292 ¶¶ 9–11, see also ECF Nos. 292-1, 292-2].
2

3

the injunction is in the public interest,” and any amendment to Plaintiff’s
complaint “would be prejudicial to the Defendant at this late hour.” [See ECF
No. 291; see also id. at 7 (“Defendant contends there is an improper motive
here as Plaintiff attempts to coerce the Warden into complying with his
wishes through the threat of legal action against him, instead of following the
institutional procedure put in place for the inmates to report security
threats.”)]. Plaintiff did not file a reply to Defendant’s response or Kendall’s
affidavit.
The court denies Plaintiff’s motion because he has failed to offer good
cause for any amendment to his complaint, particularly now when his claim
against Defendant has been pending for almost three years and is unrelated
to the new claim he wishes to assert. Additionally, “[a] plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555
U.S. 7, 20 (2008). The court finds Plaintiff has not met the standard for a
preliminary injunction, as he has not put forth evidence or argument
sufficient to support his request.
Plaintiff has additionally filed a motion to amend/correct the court’s
order denying his third motion to compel, arguing the applicable rules do not
4

require him “to show the court that the relevant discovery was served and
what was sought.” [ECF No. 304 at 2]. Plaintiff is incorrect. See, e.g., Fed. R.
Civ. P. 37(a)(3)(B); Waters v. Stewart, C/A No. 4:15-4143-RBH-TER, 2017 WL
770535, at *2 (D.S.C. Feb. 28, 2017) (“Where a prima facie showing of
discoverability has been made by the party seeking discovery, ‘the burden
shifts . . . to the resisting party . . .”) (citing Desrosiers v. MAG Industrial

Automation Sys., LLC, 675 F.Supp.2d 598, 601 (D. Md. 2009)). Accordingly,
Plaintiff’s motion is denied.
Plaintiff has also filed a standalone motion for injunctive relief, seeking
an order from the court directing prison officials to provide him with legal
supplies. [ECF No. 309]. Plaintiff states his request to the prison for paper
and envelopes was denied, with the following instruction: “Please order from
canteen. Not indigent.” Id. at 2. Plaintiff has failed to establish the factors
needed for the court to grant his request for injunctive relief, and the record
reflects that he has been able to receive supplies to prosecute his legal action,
including the legal supplies needed to file the instant motion. See Winter, 555
U.S. at 20. Accordingly, Plaintiff’s motion is denied.
In sum, the court denies all of Plaintiff’s motions, to wit: to supplement
and for injunction [ECF No. 279], to amend/correct the court’s denying his
third motion to compel [ECF No. 304], and for injunctive relief [ECF No. 309].

5

IT IS SO ORDERED.

May 4, 2021
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

6