Johnson v. McCullough

Full title: Osha A. Johnson, Plaintiff, v. Lieutenant Marquita McCullough; Lieutenant…

Court: United States District Court, D. South Carolina

Date published: Jun 10, 2024

C. A. 5:23-3368-JFA-KDW (D.S.C. Jun. 10, 2024)

Opinion

C. A. 5:23-3368-JFA-KDW

06-10-2024

Osha A. Johnson, Plaintiff, v. Lieutenant Marquita McCullough; Lieutenant Christopher Timmons; Lieutenant Desmond Weston; Lieutenant Robinson; Lieutenant McKissack; Captain Damon Greene; Captain Annie McCullough; Associate Warden Commander; Associate Warden Tisdall; Warden Jackson; Regional Director Williams; Brian P. Sterling; Governor Henry McMaster; and DHO Brown, Defendants.

Kaymani D. West United States Magistrate Judge

REPORT AND RECOMMENDATION

Kaymani D. West United States Magistrate Judge

Plaintiff Osha Johnson, an inmate filing pro se and in forma pauperis, originally initiated this action with the filing of a Complaint on July 14, 2023. Plaintiff alleges Defendants Lieutenant Marquita McCullough; Defendant Lieutenant Christopher Timmons, Defendant Lieutenant Desmond Weston; Defendant Lieutenant Robinson; Defendant Lieutenant McKissack, Defendant Captain Damon Greene; Defendant Captain Anne McCullough; Defendant Associate Warden Commander; Defendant Associate Warden Tisdall; Defendant Warden Jackson; Defendant Regional Director Williams, Defendant Brian P. Sterling¹, and Defendant DHO Brown were all officers or employees with the South Carolina Department of Corrections (the “SCDC”) and worked at Lee Correctional Institution during an incident involving the Plaintiff on September 29, 2022. Plaintiff also names Defendant Henry McMaster in this Complaint. Within his initial filing, spanning some 77 pages, Plaintiff lodges a multitude of allegations against these Defendants, apparently stemming from an inmate-on-inmate fight.

1 Although listed on the court's docket as “Brian Stirling” based on the spelling used by Plaintiff, the correct spelling of this Defendant's name is “Bryan Stirling.”

According to Plaintiff, on September 29, 2022, he was surrounded by four or five inmates who were threatening him bodily harm. ECF No. 1 at 11-12. Plaintiff then brandished a weapon, in response to other inmates “reaching into their pants for weapons,” ultimately resulting in Plaintiff being named the aggressor. ECF No. 1 at 12. Plaintiff alleges several of the Defendants assaulted him by deploying chemical munitions at him. ECF No. 1 at 13. Plaintiff generally asserts several Defendants failed to treat a lung complication he experienced, subjected him to inhumane living conditions, and retaliated against him while he has been incarcerated. ECF No. 1 at 27-29. After the initial filing of his Complaint, Plaintiff filed a Motion seeking to amend or correct his Complaint on November 16, 2023. ECF No. 62. This Motion was granted on February 2, 2024. ECF No. 83. Pursuant to the court's instructions, the clerk attached the document referred to by Plaintiff as the “Amended Complaint,” spanning 233 pages, as a supplement to his original Complaint. See ECF Nos. 1; 1-1; 1-2, and 1-3.

Since the initiation of this lawsuit, the parties have filed a multitude of motions, some dispositive to the case. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), this Magistrate Judge is authorized to review pretrial matters in cases involving pro se litigants and submit findings and recommendations to the District Court. Because Plaintiff filed supplemental information to attach to his Complaint, thereby amending the allegations, and because Defendants have all filed dispositive motions after the filing of the additional information, the undersigned finds at the outset that Defendant McMaster's initial Motion to Dismiss, ECF No. 31, and the Defendants' initial Motion to Dismiss, ECF No. 39, are denied as moot.

Plaintiff's Motion for Temporary Restraining Order, ECF No. 58, Defendant McMaster's Motion to Dismiss Supplemental Complaint, ECF No. 86, and Defendants Marquita McCullough, Lieutenant Christopher Timmons, Lieutenant Desmond Weston, Lieutenant Robinson, Lieutenant McKissack, Captain Damon Greene, Captain Anne McCullough, Associate Warden Commander, Associate Warden Tisdall Jr., Warden Jackson, Regional Director Williams, Jr., Bryan P. Stirling and DHO Brown's (collectively, the “Correctional Center Defendants”) Motion to Dismiss Plaintiff's Supplemental Complaint, ECF No. 89, are currently pending. This Report and Recommendation (“R&R”) is submitted to the district judge for review.

I. Procedural History

Owing to the volume of motions and filings in this case, and to highlight the amount of litigation that has already taken place, the undersigned finds it helpful to provide a brief procedural history prior to considering the allegations at issue in the dispositive motions. In so doing, the court has afforded wide latitude and deference to the multiple, lengthy documents submitted by Plaintiff, most of which are difficult to follow and repetitive in nature. Nevertheless, the court has spent considerable time and effort considering the arguments made by the parties throughout the course of this litigation.

After the initial filing of his lawsuit, Plaintiff filed several non-dispositive motions. First, he filed a Motion to Appoint Counsel, which was denied on August 25, 2023.² Plaintiff then filed both a Motion for Intervention and Motion for Settlement on August 30, 2023, ECF Nos. 27 and 28, both of which were denied on September 1, 2023. ECF No. 29. Plaintiff filed a Motion for Order to Show Cause, as well as a Motion for Copies on September 8, 2023. ECF Nos. 35; 36. The Motion to Show Cause was denied, in part, because it was drafted as an order, rather than a motion. The court granted, at least in part, Plaintiff's request for free copies of certain filings. ECF No. 37. Plaintiff also filed a Motion for Issuance of Subpoena on January 22, 2024, which was denied on February 2, 2024. ECF Nos. 79; 83.

2 Technically, this was his second Motion to Appoint Counsel, his first Motion having been denied prior to the Complaint being served upon any Defendants. See ECF Nos. 3; 11.

On September 7, 2023, Defendant Henry McMaster filed a Motion to Dismiss. ECF No. 31. On September 21, 2023, the Correctional Center Defendants filed their own Motion to Dismiss. ECF No. 39. Because Plaintiff is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of such motions and of the need for him to file an adequate response. ECF No. 41.³ Plaintiff did not file a response to either Motion; nevertheless, Plaintiff continued to file other motions and documents in this case. On October 12, 2023, Plaintiff filed a Motion for Temporary Restraining Order. ECF No. 58. This Motion remains pending. On November 16, 2023, Plaintiff filed a Motion to Amend/Correct, approximately two months after the filing of the second Motion to Dismiss, seeking to amend his Complaint to make a 200-page document the operative complaint in this lawsuit. On November 21, 2023, Plaintiff filed a Motion for Extension of Time/Motion to Compel, ECF No. 70, stating that Defendants failed to respond to discovery. On December 7, 2023, the court denied Plaintiff's Motion to Compel as moot, as Defendants indicated that they had provided discovery responses to Plaintiff. ECF No. 74. The court also denied Plaintiff's request for additional time to conduct discovery at this stage in the litigation.

3 The court also issued a Roseboro order after the filing of Defendant McMaster's Motion to Dismiss. See ECF No. 33. Plaintiff sought an enlargement of time to respond to this Motion on October 12, 2023. ECF No. 57.

On January 16, 2024, Plaintiff filed a Letter to Judge/Notice of Intent, advising the court he intended to bring charges against the SCDC attorneys for violating the Rules of Professional Conduct. ECF No. 77. On January 22, 2024, Plaintiff filed a Motion for Issuance of Subpoena. ECF No. 79. Defendants filed a Motion for Protective Order a few days later. The court allowed Plaintiff the ability to amend the allegations of his Complaint on February 2, 2024. ECF No. 83. At the same time, the court denied Plaintiff's Motion for Issuance of Subpoena and granted the relief requested by Defendants; that is, a stay on discovery pending a ruling on the dispositive motions. All Defendants then renewed their Motions to Dismiss, as Plaintiff had been granted the opportunity to supplement his Complaint. ECF Nos. 86; 89. Plaintiff filed Responses, and Defendants filed replies. ECF Nos. 92; 94; 93; 102. Additionally, Plaintiff filed with the court several “proposed documents” which include mental health and medical reports. ECF No. 100.

II. Factual Background

With the inclusion of Plaintiff's supplemental information, Plaintiff's Complaint, outlining a host of different allegations against all fourteen Defendants, totals more than 300 pages. The supplemental information provided by Plaintiff is repetitive of his initial allegations and is more accurately described as a stream of consciousness explanation of the events that unfolded on September 29, 2022. Further, as pointed out by the Correctional Center Defendants in their Reply, Rule 8 of the Federal Rules of Civil Procedure requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 is to allow any named defendants to have “fair notice” of the claims and the grounds upon which they rest. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Still, the court is mindful of the pro se status of Plaintiff, an incarcerated individual, in considering the filings he has presented to this court.

Plaintiff generally alleges that on September 29, 2022, Plaintiff exited his cell for a shower and for recreation. ECF No. 1 at 40. Upon return to his cell, Plaintiff was approached by an inmate who instructed him to leave the dorm. ECF No. 1 at 40. An argument ensued, and when Plaintiff turned away from the inmate, the inmate began to follow him. Id. Plaintiff then alleges the inmate, along with several other inmates, surrounded Plaintiff and initiated an altercation with Plaintiff. Id. at 41. Plaintiff alleges they threatened to “shed his blood” and grabbed Plaintiff. Id. According to Plaintiff, the incident drew the attention of at least one correctional officer, Defendant Lt. McCullough, who Plaintiff alleges advised the inmates to “take it downstairs,” out of the view of the cameras. Id. Plaintiff alleges he attempted to get away from the group of inmates who were threatening to stab him and were “reaching inside their pants.” Id. Plaintiff alleges that the inmates caused him to be fearful, and he reacted by pulling out two knives to protect himself. Id. at 42. Specifically, Plaintiff alleges that a personality named “Killaman” took over Plaintiff's will and authority and did not release control until the threat to Plaintiff was handled. ECF No. 1-3 at 16-17. Plaintiff alleges that it was not until Plaintiff attempted to “stand his ground” that Defendant McCullough and a trainee named “Ms. Jones” locked the doors, sprayed chemical munitions, and contacted the response team. ECF No. 1 at 42-43.⁴

4 It is unclear here who Plaintiff alleges sprayed chemical munitions, and he does not allege anyone at this juncture sprayed him specifically. Further, in his more specific allegations against Defendant McCullough, Plaintiff does not include this allegation.

Plaintiff alleges the other inmates were able to speak with Defendant Captain Greene and inform him that it was Plaintiff who was the aggressor, rather than the victim. Id. at 43. Plaintiff alleges that Defendant Greene had a duty to investigate the incident properly and inspect cameras, but he failed to do so. Id. at 43-44. Plaintiff alleges Defendant Greene came to his cell and explained to him that he was going to “lock up.” Id. at 45. Plaintiff alleges he questioned that decision, and that Defendant Greene began speaking to other officers before they instructed Plaintiff to come to the door to get handcuffed and taken to lock up. Id. at 45-46. Plaintiff alleges he continued to explain that he “did not do anything wrong.” Id. at 46. Plaintiff alleges that after Defendant Greene stated Plaintiff had a weapon, he showed his hands to reveal he had no weapon at that time, but he was still sprayed with chemical munitions. Id. at 46.⁵ Plaintiff alleges he warned the officers that spraying him would only get a negative response, and once he was sprayed with chemical munitions, he “slipped into a manic state of mind” and “attempted to take the MK9 munition from Defendant Christopher Timmons.” Id. at 46-47. Plaintiff alleges he attempted to obtain the weapon due to his knowledge of the use of force policy, which Plaintiff believes dictates that if an inmate obtains a security device, the officers must discontinue the use of force “until they can get backup, or attempt conflict resolution.” Id. at 47.

5 At this point, Plaintiff alleges he was in his cell without a weapon; however, he asserts elsewhere in his Complaint that he had a machete hidden in his mattress. See ECF No. 1-3 at 23. Plaintiff also previously alleged he had two knives he used to protect himself.

Plaintiff alleges that the officers did not follow policy but attempted to spray him again, at which point he walked to his bed and retrieved the homemade weapons he had made, while the officers continued to use chemical munitions. Id. at 47-48. Plaintiff alleges that the officers fired multiple shots of chemical munitions at him within fifteen minutes, specifically attempting to target areas of his body, such as his private parts. Id. at 48-49. Plaintiff alleges a total of 250 grams of chemical were initially deployed. ECF No. 1-3 at 23. In considering the entire encounter, he alleges that a total of more than 472 grams of chemical munitions were deployed. ECF No. 1-3 at 28. Plaintiff alleges he “went and got the machete” he allegedly had in his mattress to try and prevent the continued use of chemicals. ECF No. 1-3 at 23. Plaintiff alleges a mental health counselor was not called until the officers had been using force for 45 minutes. Id. at 49. According to Plaintiff, he was in a raging anger over the use of force, while the officers were still attempting to spray more gas, which caused his lungs to begin failing. Id. at 50. Plaintiff then alleges he was handcuffed and taken to medical, where a nurse checked him out. Id. at 51. Plaintiff alleges he was then taken to the shower to rinse off, which he alleges “smelled of feces, urine, was infested with roaches, flies, other bugs.” Id. at 50. Plaintiff alleges a few days after being in the lock up dorm room, another inmate dumped feces on his personal items. Id. at 52. Plaintiff alleges he was denied chemicals to clean his cell property, nor was he able to change cells. Id. at 53-55.

Plaintiff alleges that at his disciplinary hearing for the events described above, he requested and was denied camera footage. Plaintiff alleges the hearing officer denied him the ability to ask questions he wanted to ask, and his counsel substitute was not adequately prepared for the hearing. Id. at 61-62. Plaintiff alleges he was then removed from the hearing with excessive force because the hearing officer alleged he was disrupting the hearing. Id. at 64-65. Plaintiff alleges Defendant Captain Greene, and a Sgt. Adams and Lt. Pressley, non-parties to this case, pushed and pulled Plaintiff out the room and up the hall. ECF No. 1-3 at 63. He further alleges Defendant Greene pushed him into every wall he could. ECF No. 1-3 at 63. Plaintiff alleges as a result of these incidents, he suffered lung/breathing complications, mental distress, bruising on his upper arms, headaches, and back pain. In his supplemental information, Plaintiff provides as attachments the numerous and detailed grievances he repeatedly filed regarding these incidents. See ECF No. 1-3 at 202-233.

In an effort to parse out which of Plaintiff's allegations are alleged against each Defendant, the undersigned provides the following synopsis of Plaintiff's allegations against each Defendant as follows:

Defendant Lieutenant McCullough: Plaintiff alleges that Defendant McCullough is a Lieutenant employed by the SCDC at Lee Correctional Institution. ECF No. 1 at 11. Plaintiff alleges Defendant McCullough “stood by and watched” as several inmates surrounded Plaintiff in a threatening manner and began speaking to him in a loud and aggressive tone. ECF No. 1 at 11. Plaintiff alleges this incident caught the Defendant's attention, but she chose not to intervene or call for assistance while the other inmates grabbed and pushed Plaintiff. Id. Plaintiff further alleges Defendant McCullough told other inmates to “take it downstairs,” apparently because “they were watching the cameras.” Id. at 12.⁶ Plaintiff alleges Defendant McCullough observed the group of inmates follow Plaintiff and continue to threaten him and reach into their pants for weapons. Id. Plaintiff alleges he then brandished a weapon toward the group, hoping to cause the group of inmates to retreat, but as a result, Defendant McCullough and a trainee ran downstairs, locked the doors, and told the “A-team” that Plaintiff was the aggressor. Id. at 12-13.⁷ Plaintiff alleges this was a violation of his rights, and further, it created the circumstances by which other Defendants sprayed Plaintiff with chemical munitions. Id. at 13.

6 In Plaintiff's supplemental information, he alleges this Defendant violated SCDC Policy OP-22.15 and OP-22 by allowing another inmate to exert authority over Plaintiff. ECF No. 1-3 at 12.

7 Plaintiff calls the group of officers who responded to the altercation either the “A-team” or the “cert team,” but it appears the references are to the same group of people.

Defendant Lieutenant Christopher Timmons: Plaintiff alleges Defendant Timmons is employed by the SCDC and works at Lee Correctional Institution. ECF No. 1 at 14. Plaintiff alleges Defendant Timmons, along with Defendants Weston, Robinson, and McKissack, comprising part of the “A-team,” violated his constitutional right to be free from excessive force and cruel and unusual punishment by administering several bursts of chemical munitions at him, totaling 100 grams. ECF No. 1 at 14. Plaintiff further alleges that Defendant Timmons assisted Defendant Weston in assaulting Plaintiff with his MK-9 and gas grenades and removed a shield to allow Defendant Weston to fire a riot gun into Plaintiff's cell. ECF No. 1 at 14. Plaintiff further alleges Defendant Timmons conspired with other officers to alter the incident report detailing this incident. ECF No. 1 at 15. Plaintiff alleges that he grabbed the gas canister from Defendant Timmons, but ultimately Defendant Timmons deployed 100 grams from his MK9 at Plaintiff. ECF No. 1-3 at 22-23.

Defendant Lieutenant Desmond Weston: Plaintiff alleges Defendant Weston is employed by the SCDC at Lee Correctional Institution. ECF No. 1 at 16. Plaintiff alleges Defendant Weston was part of the “A-team,” and he violated Plaintiff's constitutional right to be free from excessive force and cruel and unusual punishment by administering several bursts of chemical munitions at him. Id. Plaintiff further alleges Defendant Weston disregarded SCDC policies and procedures on the use of force and use of riot devices. Id. Specifically, Plaintiff alleges Defendant Weston fired five rounds of the “40mm” stinger chemical munitions at Plaintiff, targeting specific parts of his body and firing at him in an enclosed room “back to back without pause.” ECF No. 1 at 16.

Defendant Lieutenant Robinson: Plaintiff alleges Defendant Robinson is employed by SCDC at Lee Correctional Institution. ECF No. 1 at 17. Plaintiff alleges that, as part of the A-team, Defendant Robinson violated his constitutional right to be free from cruel and unusual punishment, as well as the right to be free from excessive force, by assisting the other officers in the use of excessive force by passing and reloading weapons being used to assault Plaintiff. Id.

Plaintiff also alleges this Defendant was given supervisory rank over the entire A-team. Id. Plaintiff alleges Defendant Robinson was listening to the radio and requesting permission to use chemical munitions (Plaintiff refers to as “40mm”) and that despite this request being denied, Defendant Robinson failed to step in and stop Captain Greene from instructing members to use these munitions. Id. at 18.

Defendant Lieutenant McKissack: Plaintiff alleges Defendant McKissack is employed by SCDC at Lee Correctional Institution. ECF No. 1 at 19. Plaintiff alleges Defendant McKissack violated Plaintiff's right to be free of cruel and unusual punishment and the use of excessive force by assisting other officers in the initial burst of MK-9 munitions, which he alleges were sprayed more than once. ECF No. 1 at 19. Plaintiff further alleges that Defendant McKissack assisted the other officers in busting out a back window and firing a grenade at Plaintiff, as well as spraying Plaintiff with his own MK-9. ECF No. 1 at 19. Plaintiff alleges Defendant McKissack caused him to have a manic episode and refused to stop or cease the use of force, he did not contact the mental health department contrary to SCDC policy, and he called in permission to use a riot gun. Id. at 20. Plaintiff alleges he was told that Defendant Greene told the officers not to use the 40mm of chemical munitions; however, they did so anyway. ECF No. 1 at 20-21.

Defendant Captain Damon Greene: Plaintiff alleges Defendant Captain Greene is employed by SCDC at Lee Correctional Institution. ECF No. 1 at 21. Plaintiff alleges Defendant Greene informed him he would be going to lock up for threatening other inmates, despite Plaintiff's contention that he was the victim. ECF No. 1-3 at 17-18. Plaintiff alleges Defendant Greene violated his rights by instructing the cert team as to their task “in the assault of the Plaintiff.” ECF No. 1 at 21. Plaintiff alleges Defendant Greene made the first move by pulling Plaintiff's sheet to the side and spraying him with the first burst of chemical munitions. Id. Plaintiff alleges Defendant Greene commanded other officers to act and is therefore liable for their actions, as well. Id. at 22. Plaintiff further alleges Defendant Greene subjected him to “extreme, inhumane living condition[s]” and subjected Plaintiff to the excessive use of force on October 18, 2023, when he “got physical” with Plaintiff. Id. at 22. Plaintiff alleges once Defendant Greene returned to the group of other Defendants who stood to “await his commands,” they committed a civil conspiracy, though he does not specify what comprised the civil conspiracy. ECF No. 1-3 at 19. Finally, Plaintiff alleges in his supplemental filing that Defendant Captain Greene pushed and pulled him out of the disciplinary hearing upon request of DHO Brown. ECF No. 1-3 at 63.

Defendant Captain Annie McCullough: Plaintiff alleges Defendant McCullough is employed by SCDC at Lee Correctional Institution. ECF No. 1 at 23. He alleges Defendant McCollough was called to assist the cert team with extracting Plaintiff from his cell. Id. He further alleges due to her rank, Defendant McCullough could have taken over command, but instead she told Plaintiff to think about the effect the chemical munitions were having on other inmates, thereby acknowledging that the chemical munitions were harmful. Id. Plaintiff further alleges Defendant McCullough helped hold, pass and reload weapons used to assault Plaintiff, and that due to her rank she bears supervisory responsibility. Id. Finally, Plaintiff alleges Defendant McCullough was also listening to the radio when the request to use munitions was allegedly denied. Id. at 24.

Defendant Associate Warden Commander: Plaintiff alleges Defendant Commander is employed by SCDC at Lee Correctional Institution. ECF No. 1 at 25. Plaintiff alleges Defendant Commander was responsible for the security of the area where Plaintiff was located and was communicating with Defendant Greene via radio, as well as watching on the camera. Id. Plaintiff alleges Defendant Commander was responsible for ensuring officers conducted themselves according to SCDC policy and instead of overseeing them in person, oversaw them via camera and gave instructions via radio. Id. Plaintiff alleges he is familiar with this Defendant and has been since 2013, and for that reason he knows his “style” regarding his use of a riot gun, as well as his voice. Id. Plaintiff alleges Defendant Commander gave the “go ahead” to use the 40mm to deploy chemical munitions. Id. at 25-26. Plaintiff further alleges Defendant Commander is responsible for training officers in the use of chemical munitions. Id. at 36.

Defendant Associate Warden Tisdall: Plaintiff alleges Defendant Tisdall is employed by SCDC at Lee Correctional Institution. ECF No. 1 at 27. Plaintiff alleges Defendant Tisdall is responsible for security, and it was his duty to ensure Plaintiff's safety. Id. Plaintiff alleges Defendant Tisdall failed to keep members of the security team who assaulted Plaintiff away from him. Id. Plaintiff also alleges Defendant Tisdall failed to treat the Plaintiff's lung complication and is responsible for the deprivation Plaintiff experienced when he was sent back to Lieber Correctional Institution. Id. Plaintiff alleges this deprivation included being deprived of recreation, fresh air, sunlight, access to the law library, and the ability to shower, which he says has led to an infection. Id. at 28.

Defendant Warden Jackson: Plaintiff alleges Defendant Jackson is employed by SCDC at Lee Correctional Institution. ECF No. 1 at 29. Plaintiff alleges Defendant Jackson failed to protect him from assault, excessive use of force, cruel and unusual punishment, inhumane living conditions, and other forms of retaliation. Id. at 29. Plaintiff further alleges Defendant Jackson failed to treat Plaintiff's lung condition, deprived him of recreation, fresh air, sunlight, access to the law library, access to religious services and Islamic studies, and deprivation of a shower which led to him getting an infection. Id.

Defendant Regional Director Williams: Plaintiff alleges Director Williams is employed by SCDC at Lee Correctional Institution. ECF No. 1 at 31. Plaintiff alleges as a supervisory official, Defendant Williams is responsible for the actions of the other Defendants and failed to treat Plaintiff's lung condition, deprived him of recreation, fresh air, sunlight, access to the law library, access to religious services and Islamic studies, and deprivation of a shower which led to him getting an infection. Id. at 31-22.

Defendant Director Bryan Stirling: Plaintiff alleges he has sued Defendant Stirling because he is unable to sue the United States Government. Id. at 33. He further alleges that as head or director of the SCDC, he has sued Defendant Stirling because it is his duty to oversee the safety and security of all prisoners by making policies and procedures to prohibit mistreatment of prisoners. Id. at 33. Plaintiff alleges as a supervisory official, Defendant Stirling is responsible for the actions of the other Defendants and failed to treat Plaintiff's lung condition, deprived him of recreation, fresh air, sunlight, access to the law library, access to religious services and Islamic studies, and deprivation of a shower which led to him getting an infection. Id. at 33-34. Plaintiff further alleges Defendant has “breached a contract in which he has enter with the Plaintiff don't have no say or control over where he is shipped.” Id. at 34. Plaintiff provides no additional details about any alleged breach of contract.

Defendant Henry McMaster: Plaintiff alleges Defendant McMaster is employed by the State of South Carolina and is the “respected head of the State of South Carolina as the Governor.” Id. at 35. Plaintiff alleges Defendant McMaster is liable because he allowed the Defendants to “make or break policies” and that he is liable for the “actions, deprivations, and violations of any government official acting in or on the behalf of South Carolina.” Id. at 35.

Defendant DHO Brown: Plaintiff alleges DHO Brown is employed by the SCDC at Lee Correctional Institution. ECF No. 1 at 36. Plaintiff alleges as a disciplinary hearing officer, Defendant Brown violated Plaintiff's rights by depriving Plaintiff of the right to a counsel substitute via appointment of a “new” counsel substitute. Id. Plaintiff alleges his counsel substitute that was appointed refused to talk to Plaintiff. Id. Plaintiff also alleged Defendant deprived Plaintiff of his right to call forth “the camera as his witness.” Id. Plaintiff also alleges Defendant Brown denied him the right to question his accusers. Id. Plaintiff alleges Defendant Brown also violated his right to freedom of speech. Id. at 38.

III. Standard of Review

Defendants have moved to dismiss this action based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

This court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, “[t]he presence . . .of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support [the legal conclusion].” Young v. City of Mount Rainier, 238 F.3d 567, 577 (4th Cir. 2001).

IV. Analysis

A. Motion to Dismiss Supplemental Complaint filed by Defendant Henry McMaster

Defendant Henry McMaster filed his Motion to Dismiss Plaintiff's Supplemental Complaint on February 14, 2024. ECF No. 86. Within the Motion, Defendant McMaster details his legal arguments for dismissing all claims against him that were brought in both his official and individual capacity. Plaintiff filed a response on March 20, 2024, totaling 37 pages, along with an additional 225 pages in what Plaintiff styles as “supporting documents.” ECF No. 92. As an initial matter, the undersigned reminds Plaintiff that he must comply with the Local Civil Rules of the District Court of South Carolina, which limit parties to an initial brief totaling 35 pages, exclusive of exhibits. See Local Civ. Rule. 7.05(B) (D.S.C.). Nevertheless, the undersigned considered all discernible arguments advanced by Plaintiff in his Response.

Defendant McMaster first argues that any claims brought by Plaintiff against him in his official capacity must be dismissed under the Eleventh Amendment. ECF No. 86 at 6. Second, Defendant McMaster argues that claims brought in either his official or individual capacity are barred as Plaintiff has failed to state a claim against him. ECF No. 86 at 7. Finally, Defendant McMaster points out that he does not become a proper party to this action simply by virtue of his position at the State's chief executive. ECF No. 86 at 10.

Within Plaintiff's Response, he devotes several pages detailing the incident that took place in September of 2022. Likewise, he again pushes forth arguments suggesting that his constitutional rights were violated when several officers allegedly used excessive force to quell an inmate argument. Plaintiff spends a considerable portion of his response detailing his belief that certain officers should have followed policies that they “had knowledge of.” ECF No. 92 at 4-6. Plaintiff also refers to the standard of review for a motion to dismiss; however, he then alternatively argues in terms of a motion for summary judgment. ECF No. 92 at 10-12. Plaintiff realleges the same allegations he believes supports bringing claims against Defendant McMaster. For example, Plaintiff alleges that he is the “chief magistrate” and that he is the “supreme executive authority of this state.” ECF No. 92 at 15. Plaintiff lays out the duties of the governor, including his ability to prevent “unlawful assemblies.” ECF No. 92 at 17. He specifically points out what he says is a “bombshell,” that is South Carolina Code Ann 1-3-430, which allows the governor to act to prevent danger and minimize danger to life. ECF No. 92 at 18. Plaintiff then states, verbatim,

“[i]f it is not clear yet, the Plaintiff is suing the governor because he (1) possess power which if used can stop the ongoing violations of my constitutional rights; (2) had that power been faithfully exercised five years ago, it could've prevent these violations or minimize the risk of injury, and reduced the chances of me being assaulted a second time by ‘cert teams' of SCDC in less than 10 months apart and the second being done to intimidate me into leaving the first alone; (3) because the Governor has made statements which could've had a impact on prison officials to ‘incourage' them to mistreat prisoners; (4) because an executive officer cannot be restrained, coerced or controlled by the judicial department.”

ECF No. 92 at 19-20. Plaintiff also references the South Carolina Tort Claims Act, a statute regarding the bond of a public officer, and general contract law as sources of potential liability on the part of Defendant McMaster. ECF No. 20-21. Within Plaintiff's argument in opposition to Defendant McMaster's Motion, Plaintiff cited to and provides an explanation of a series of statutes and cases without any cogent connection to the incident that occurred on September 29, 2022. As such, it was difficult to discern Plaintiff's argument in response to dismissal of this action.⁸ At one place in his briefing, Plaintiff appears to argue that the failure on the part of Defendant McMaster to remove Defendant Bryan Stirling as Director is a violation of Plaintiff's constitutional rights. ECF No. 92 at 23. Plaintiff also alleges he has submitted evidence of inadequate or malicious training. ECF No. 92 at 24. Plaintiff argues that since the incident in question, approximately two years have passed, and Defendant McMaster should now be “fully aware” of what happened and should have removed Director Stirling. ECF No. 92 at 29. Plaintiff seeks to implore Governor McMaster to “dismantle” the assault teams in prison and punish officers “without removing” Defendant Stirling. ECF No. 92 at 36. The remainder of his Response is difficult to follow and often discusses tangential issues such as a riot between two rival gangs, which have no logical connection or factual significance to the allegations presented in this case. ECF No. 92 at 31-32.

8 In Plaintiff's own words, “I don't have the time to break it all down and have this Motion in the mailbox befor[] mail pick up today 3-18-2024. It's 12:39 AM right now and I only have 5 hours to finish my key points so I will just cite the statutes for now to show the courts that the Governor is full of crap.” ECF No. 92 at 27.

As to the claims brought against Defendant McMaster in his official capacity, Defendant McMaster argues that Eleventh Amendment Immunity applies. The Eleventh Amendment provides: “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. CONST. amend. XI. The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens, as well as suits by citizens of another State. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001). Eleventh Amendment immunity also extends to “arms of the State” and state employees acting in their official capacity. Doe v. Coastal Carolina Univ., 359 F.Supp.3d 367, 378 (D.S.C. Jan. 9, 2019). Relatedly, the Supreme Court has held that neither a State nor its officials acting in their official capacities are “persons” under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Here, Defendant argues that as governor, he is “an arm of the state” and therefore Plaintiff is precluded from bringing suit against him in his official capacity. ECF No. 86 at 7. Plaintiff does not offer a cogent response to this argument. The undersigned agrees with Defendant and recommends finding that the Eleventh Amendment precludes suit against Defendant McMaster in his official capacity.

As to any claims brought against him in his individual capacity, these claims also fail. First, Plaintiff does not allege Defendant McMaster had any personal involvement whatsoever in the incident in question and/or the due process hearing afterward. Liability under § 1983 involves a showing that “the official charged acted personally in the deprivation of the plaintiff's rights.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). The doctrine of respondeat superior is inapplicable in these cases. Id.; see Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (stating that there is no respondeat superior liability under § 1983).

Defendant argues that Plaintiff fails to allege any personal participation on the part of Defendant. For example, Defendant McMaster was not at the inmate facility in question, nor did he interact in any way with the individuals involved during the incident. Instead, Plaintiff seems to argue that it is Defendant McMaster's duty or role to oversee the day-to-day operations within the facility and is personally responsible for each officer who works for the SCDC. However, the doctrine of respondeat superior is inapplicable in these cases.

Second, Plaintiff alleges that Governor McMaster is liable by virtue of the position he holds. Supervisory officials may be held liable in certain circumstances upon a “recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)). To establish supervisory liability under § 1983 one must show: (1) the “supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk' of constitutional injury”; (2) the “supervisor's response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,'”; and (3) there was an “affirmative causal link between the supervisors inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799 (internal citation omitted).

Defendant McMaster argues that Plaintiff's supplemented Complaint does not contain any factual allegations to suggest he was aware of any of the incidents detailed in this action. Nor does Plaintiff allege Defendant McMaster was aware that any similar incidents occurred. At best, Plaintiff argues that Defendant McMaster had some sort of power that, had he exercised it, would have prevented these incidents in the first place. However, under the factors set forth in Shaw, there is no causal link between any inaction on the part of Defendant McMaster and the allegations contained within Plaintiff's Complaint (i.e., that he was in an inmate altercation that ultimately led to disciplinary action). Indeed, as pointed out by Defendant, Plaintiff's reiteration of the events giving rise to the lawsuit found within his Response does not mention in any way how Defendant McMaster was involved. Further, with respect to what the undersigned perceives to be Plaintiff's argument that Defendant McMaster should be held liable under a theory of supervisory liability, Plaintiff wholly fails to point to any specific action or inaction by Defendant McMaster that caused his injuries.

While Plaintiff does cite to several statutes which outline the authority the Governor has, the statutes do not provide a basis for bringing suit against this Defendant pursuant to § 1983, as it still amounts to a claim of generalized supervisory liability.⁹ See, e.g., Doyle v. Hogan, 1 F.4th 249, 256 (4th Cir. 2021) (explaining that a governor's general “supervisory” role does not permit an individual to sue that officer under Ex Parte Young). In short, Plaintiff fails to provide any factual allegations that would hold the Governor of the State of South Carolina liable for this altercation that occurred inside of this correctional center, and the undersigned does not find that simply alleging the Governor is responsible for any altercation that occurs inside a South Carolina prison is sufficient to state a claim for relief. For the reasons outlined above, the undersigned recommends granting Defendant McMaster's Motion to Dismiss, ECF No. 86.

9 For example, Plaintiff alleges that S.C. Code Ann. § 1-3-430 somehow required some sort of action on the part of Governor McMaster in this case. That statute provides that, “[i]n all such cases when the Governor shall issue his proclamation . . . he may further, cope with such threats and danger, order and direct any person or group of person to do any act which would in his opinion prevent or minimize danger to life, limb, or property or prevent a breach of the peace.” This statute, however, references a proclamation of emergency that a Governor may declare for the State. See S.C. Code Ann. § 1-3-420. This statute does not authorize the Governor a license to intervene in the SCDC's handling of institutional matters between inmates.

B. Motion to Dismiss Supplemental Complaint filed by Correctional Center Defendants

The Correctional Center Defendants filed their Motion to Dismiss Plaintiff's Supplemental Complaint, arguing several grounds for dismissal. First, the Correctional Center Defendants argue that, like Governor McMaster, any claims brought against them in their official capacity should be dismissed. Plaintiff does not provide a substantive response to this argument, and as previously noted the Eleventh Amendment provides: “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. CONST. amend. XI. The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens, as well as suits by citizens of another State. See Edelman, 415 U.S. at 662-63. Eleventh Amendment immunity also extends to “arms of the State” and state employees acting in their official capacity. Doe, 359 F.Supp.3d at 378. The undersigned agrees that any claims brought against these Defendants in their official capacity should be dismissed.

As to any claims brought against them in their individual capacity, the analysis as to each claim is stunted by Plaintiff's own pleading deficiencies. Federal Rule of Civil Procedure 8 requires the pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief. In alleging a § 1983 claim, a plaintiff must plead that one or more defendants, through his or her own individual actions, violated the Constitution. Iqbal, 556 U.S. at 676 (emphasis added). As an initial matter, Plaintiff fails to clearly allege how each named Defendant was personally involved in the deprivation of his rights. See Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Thus, in seeking to determine which Defendants were responsible for which alleged constitutional violations, much like the analysis as to Defendant McMaster, the incoherency and length of Plaintiff's pleadings makes it difficult to analyze each claim. Still, the undersigned has undertaken to parse out which claims he alleges against each Defendant. Additionally, Plaintiff filed a purported response to the Correctional Center Defendants' Motion to Dismiss on or about April 1, 2024. ECF No. 94. His Response focuses almost entirely on Governor McMaster's alleged misdeeds, prior to once again meticulously detailing the incident that took place on September 29, 2022. According to Plaintiff, his constitutional rights were violated during the incident because the Correctional Center Defendants failed to punish both the inmates that he alleges were taunting him, as well as him. The undersigned has considered these allegations.

1. Failure to Protect

In liberally construing Plaintiff's Complaint, he alleges that Defendant McCullough failed to protect him from other inmates, thereby violating the Eighth Amendment by being deliberately indifferent to his safety. ECF No. 1 at 11-13. The Eighth Amendment requires prison officials to “protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1970). Not every injury suffered by one prisoner at the hands of another results in constitutional liability on the part of the prison official. Id. at 834. The Supreme Court outlines two requirements for an Eighth Amendment failure to protect claim. First, a prison official's act or omission must result in the denial of “the minimal civilized measures of life necessities.” Id. This requirement is also stated that the denial of the constitutional right must be “sufficiently serious.” Id. Second, the prison official must have a “sufficiently culpable state of mind,” meaning that the official either purposefully caused the harm or acted with “deliberate indifference.” Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). Plaintiff has failed to allege sufficient facts to establish either prong of this test. First, Plaintiff does not allege or otherwise imply that he was injured at the hands of another inmate while Defendant McCullough was in his vicinity. Indeed, Plaintiff alleged the opposite; that is, Plaintiff alleged that it was he who pulled out a weapon against these other inmates after they allegedly threatened him. Further, Plaintiff fails to allege Defendant McCullough acted with deliberate indifference toward him. In failure to protect cases, prison guards do not have a constitutional duty to intervene in an armed assault of an inmate when intervention would place the guards in danger of physical harm. Raynor v. Pugh, 817 F.3d 123, 128 (4th Cir. 2016). The Fourth Circuit has also stated that an official who observes an inmate engage in a verbal altercation with another inmate is insufficient to show that the official knew that the inmate was in danger of substantial harm. Kartman v. Markle, 582 Fed.Appx. 151, 154 (4th Cir. 2014) (unpublished table decision).¹⁰

10 In Kartman, the court also stated that an unreasonable delay in stopping a fight between inmates could give rise a constitutional violation; however, in Kartman, a plaintiff alleged a guard stood and watched “for what seemed like a long time” as he was physically assaulted. 582 Fed.Appx. at 154. Plaintiff does not allege that Defendant McCullough watched him get physically assaulted. To the contrary, once the argument escalated past a verbal altercation, she sought assistance from other officers.

Here, Plaintiff does not allege Defendant McCullough failed to act, and he does not provide any allegations regarding how long there was a verbal spat between inmates when Defendant McCullough was allegedly watching them. What Plaintiff alleged was that Defendant McCullough notified other officials once the altercation accelerated to Plaintiff's brandishing of a weapon, see ECF No. 1 at 12, allegations which suggest Defendant McCullough responded once she perceived a serious risk of harm, and certainly when the inmate argument escalated past a verbal exchange of words. Thus, even liberally construing Plaintiff's allegations, the undersigned recommends dismissing Defendant McCullough from this lawsuit.

2. Excessive Force

Plaintiff next alleges that Defendants Timmons, Weston, Robinson, McKissack, and Greene all violated his constitutional rights by engaging in the excessive use of force in deploying chemical munitions at him and in his cell. The Eighth Amendment prohibition of cruel and unusual punishment “protects inmates from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). To establish a constitutional excessive force claim, the inmate must establish that the “prison official acted with a sufficiently culpable state of mind (subjective component); and [that] the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component).” Iko v. Shreve, 535 F.3d, 225, 238 (4th Cir. 2008) (citing Williams, 77 F.3d at 761). Thus, courts must analyze both a subjective and an objective component. For the subjective component, Plaintiff must prove that Defendants assaulted and restrained him “maliciously and sadistically for the very purpose of causing harm” rather than in a good-faith effort to maintain or restore discipline. Whitley v. Albers, 475 U.S. 312, 320-21 (1986).

The Fourth Circuit has instructed that district courts use the following test in order to analyze the subjective component of the excessive force for Plaintiff's cause of action:

(1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) “any efforts made to temper the severity of a forceful response.”

Iko v. Shreve, 535 F.3d at 239. To establish the objective component, Plaintiff must show that “the alleged wrongdoing is objectively ‘harmful enough' to establish a constitutional violation” in the context of “contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 2 (1992). When prison officials maliciously and sadistically use force to cause harm, there always exists a constitutional violation regardless of whether a significant injury is present. Id. at 9; see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).

Plaintiff argues that these Defendants used excessive force in the application of chemical munitions once he brandished a weapon against other inmates. The United States Court of Appeals for the Fourth Circuit has previously addressed the use of chemicals in a prison setting. Williams v. Benjamin, 77 F.3d 756 (4th Cir. 1996); Bailey v. Turner, 736 F.2d 963, 969 (4th Cir. 1984). The Fourth Circuit has previously held that the quantity of mace used should be commensurate with the gravity of the occasion so as not to violate the Constitution. Bailey, 736 F.2d at 969-70. In Bailey, the Fourth Circuit also found that mace may be used to compel the obedience of a recalcitrant prisoner. Id. Whether the use of chemical munitions constitutes excessive force depends upon “the totality of the circumstances, the provocation, the amount of gas used, and the purposes for which the gas was used.” Id. at 969.

As alleged in his Complaint, Plaintiff indicates that a team of officers were employed to help quell the altercation that had developed in Plaintiff's living area. Plaintiff alleges that Defendants Timmons, Weston, Robinson, and McKissack targeted his body with chemical munitions, totaling 100 grams by Defendant Timmons and 40 grams by Robinson. He further alleges McKissack allegedly sprayed him in the face with chemical munitions and employed more than two bursts of munitions. ECF No. 1-3 at 24. He alleges Weston used 5 rounds of chemical munitions. Plaintiff alleges Defendant Robinson was listening to the radio and requesting permission to use chemical munitions, and despite this request being denied, he failed to step in and stop Captain Greene from instructing members to use these munitions. ECF No. 1 at 18. Further he alleges Defendant Greene also sprayed him with chemical munitions.

Defendants argue that Plaintiff has failed to allege sufficient facts to state a claim for relief that a constitutional violation occurred. In their Reply, the Correctional Center Defendants argue that by Plaintiff's own admission in his pleadings, he actively disobeyed instructions from the officers on the A-team and threatened them by saying spraying him with chemical munitions was “they last thing they would want.” Defs.' Reply at 6 (citing ECF No. 1 at 46). The Correctional Center Defendants further point out that Plaintiff admits to trying to take the chemical munitions canisters from the officers, that he became enraged, and that he brandished a weapon, including sticking the knife out of the door flap toward the officers. Defs.' Reply at 7 (citing ECF No. 1 at 46-48). Thus, the Correctional Center Defendants argue that while Plaintiff argues the use of force was excessive, Plaintiff also admits that he was threatening the officers.

This court is tasked with determining whether Plaintiff has sufficiently pled a constitutional violation. While at times, Plaintiff's focus seems to be on the fact that the officers used any amount of chemical munitions at all, he also alleges that excessive amounts of chemical munitions were used. Plaintiff alleges that Defendant officers targeted specific parts of his body, suggesting that the goal was not necessarily to quell an inmate, but to harm Plaintiff. It is true that courts have held that in similar circumstances, use of more than a de minimis amount of chemical munitions was not unconstitutionally excessive. See Robinson v. S.C. Dept. of Corr., No 5:10-cv-2593-HMH-KDW, 2012 WL 851042, at *7 (D.S.C. Mar. 13, 2012) (finding that 31 grams was not excessive to quell a confrontational inmate and citing to another case where 33.5 grams was found to be “not constitutionally relevant.”). Indeed, in Plaintiff's own retelling of the incident that occurred, he threatened other inmates and officers with a weapon on more than one occasion, and he turned into “Killaman,” his alter ego. When pared down, Plaintiff alleges that it took several officers and several deployments of chemical munitions to obtain his compliance after an altercation where he possessed a knife, and after he continued to disobey the officers when they arrived at his cell.

At the same time, Defendants argue simply that Plaintiff has failed to sufficiently plead a constitutional violation. While Plaintiff's Complaint clearly establishes that an incident took place wherein Plaintiff brandished his own weapon and did present it at the officers, his allegations are also such that he alleges the force used to respond to the incident in question was beyond that which was constitutionally permissible. Moreover, he alleges that at least some of the chemical munitions were targeted at private parts of his body, rather than a quick burst to gain compliance. Indeed, he alleges the use of chemical munitions went on for an extended period of time. In affording Plaintiff the liberal construction required by this court, the undersigned finds that at this stage of the litigation, he has pled sufficient facts within his Complaint to withstand a motion to dismiss on his excessive force allegation.¹¹

11 As to Defendant Captain Greene, Plaintiff also alleges he “got physical” with Plaintiff on October 18, 2022 at his disciplinary hearing, because Plaintiff informed DHO Brown that she could not deprive him of his rights. Id. at 22. Plaintiff also alleges he resisted Defendant Greene's efforts to remove him from the hearing. Aside from this allegation being vague, Plaintiff also admits he resisted removal from the hearing after he was ordered to leave. ECF No. 1-3 at 63. In his supplemental information, Plaintiff alleges Defendant Greene, along with two other non-party officers, pushed and pulled him into walls as they led him away from the detention hearing. ECF No. 1-3 at 63. Plaintiff does not allege he suffered any injury as a result of being pulled out of this disciplinary hearing. Aside from the vague nature of this pleading, the undersigned recommends finding that these allegations as pled fail to state a claim a relief. The Fourth Circuit has previously held that an inmate who “complains of a [mere] ‘push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim.” Thompson v. Shelton, 541 Fed.Appx. 247, 250 (Sept. 23, 2013) (citing Wilkins v. Gaddy, 559 U.S. 34, 38 (2010)).

3. Supervisory Liability

Plaintiff brings several allegations against Defendants who held or still hold supervisory positions at Lee Correctional Institution. Plaintiff alleges supervisory liability on the part of Defendants Captain Annie McCullough, Defendant Associate Warden Commander, Defendant Associate Warden Tisdall, Defendant Warden Jackson, Defendant Regional Director Williams, Defendant Captain Greene, and Defendant Director Bryan Stirling. As best the undersigned can infer from the Complaint, Plaintiff alleges Defendant Annie McCullough “could have taken over command,” and that she is liable under a supervisory liability theory for helping hold, pass and reload weapons. ECF No. 1 at 23. Plaintiff alleges Defendant Associate Warden Commander was responsible for security of the area and that he gave the “go ahead” for the use of chemical munitions. ECF No. 1 at 25-26. Plaintiff alleges Defendant Associate Warden Tisdall failed to keep members of his security team away from Plaintiff and failed to treat Plaintiff's “lung complications,” as well as is responsible for certain deprivations that Plaintiff claims occurred when he was sent to Lieber Correctional Institution.¹² ECF No. 1 at 27-28. Similarly, Plaintiff alleges Defendant Warden Jackson failed to protect him from assault and failed to treat his lung condition and deprived him of certain rights at Lieber. Id. at 29. Plaintiff alleges that as a supervisory official, Defendant Regional Director Williams is responsible for the actions of other Defendants and failed to treat Plaintiff's lung condition, as well as deprived him of recreation, fresh air, access to the law library, access to religious services and Islamic studies, and deprivation of a shower which led to an infection. Id. at 31-32. As to Defendant Captain Greene, Plaintiff alleges he subjected him to inhumane living conditions as a supervisory official. Id. at 21-22. Finally, Plaintiff alleges that he sued Defendant Bryan Stirling because he is unable to sue the United States government, and because it is this Defendant's duty to oversee the safety and security of prisoners.

12 Specifically, Plaintiff alleges that while at Lieber Correctional Institution, he was deprived of recreation, fresh air, sunlight, access to the law library, and the ability to shower. He further alleges he was deprived of access to religious services and Islamic studies. Id. at 28-29. While these allegations could rise to the level of a constitutional violation, Plaintiff does not allege that any named Defendant personally participated in the violations. Instead, Plaintiff alleges the Defendants, who hold supervisory positions, are responsible for these deprivations.

Supervisory officials may be held liable in certain circumstances upon a “recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their case.” Shaw, 13 F.3d at 798 (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)). To establish supervisory liability under § 1983 one must show: (1) the “supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk' of constitutional injury”; (2) the “supervisor's response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,'”; and (3) there was an “affirmative causal link between the supervisors inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799 (internal citation omitted). Plaintiff's allegations, even construed liberally, fail to state a claim for relief against these Defendants. As to Defendant Captain Annie McCullough and Defendant Associate Warden Commander, while Plaintiff alleges they were at least aware or gave the “go ahead” to use chemical munitions, Plaintiff does not allege any other knowledge on their part as to the circumstances of whether the use of force was excessive in that they had knowledge of the amount of chemical munitions being deployed. Plaintiff also alleges that he had a weapon in his cell during the incident in question. Further, while he alleges these two Defendants had knowledge of the use of chemical munitions, he does not allege their response or failure to respond caused his injuries. Simply alleging they are responsible as supervisors is insufficient to meet the pleading standard under Rule 8 of the Federal Rules of Civil Procedure. As to the other Defendants, Plaintiff's allegations are simply that they are responsible by virtue of their supervisory status. He does not allege they had any knowledge, actual or constructive, of any purported constitutional violations, and he certainly has not alleged that they responded inadequately or that there was any link between the alleged constitutional violations and any action or inaction on the part of these Defendants. For these reasons, the undersigned recommends dismissing the claims brought against these Defendants.¹³

13 Keeping in mind the liberal construction afforded pro se plaintiffs, the undersigned has also considered the fact that Plaintiff appears to allege that Defendant Annie McCullough helped hold, pass and reload weapons; however, he brings these claims against her in her capacity as a supervisor and in other places within his Complaint, he alleges that she was “listening” to a call made on the radio to another individual when the use of munitions was allegedly denied. ECF No. 1 at 24. These allegations make clear that while Defendant McCullough may have been aware of the use of munitions, she did not make the decision whether to use the munitions or actually used the chemical munitions against Plaintiff. Similarly, Plaintiff alleges Defendant Commander gave the “go ahead” to use chemical munitions, while in other places within his Complaint, he alleges that whoever was on the radio denied the request. Regardless, the decision to employ chemical munitions in and of itself is not a constitutional violation, as there are times when the use of munitions in the prison setting may be permissible, and Plaintiff has failed to allege that Defendant Associate Warden Commander commanded anyone to use an amount of chemical munitions that would constitute excessive force.

4. Failure to Contact Mental Health

Plaintiff next alleges Defendant McKissack failed to contact the mental health department after the altercation with Plaintiff, which is a “violation of SCDC policy.” Prison officials violate the Eighth Amendment when two conditions are met. Farmer, 511 U.S. at 834. First, the alleged deprivation must be “sufficiently serious.” Id. To prevail on a claim based on a failure to prevent harm, an inmate must show that he is incarcerated under conditions that pose a substantial risk of serious harm. Id. Second, the prison officials must have a “sufficiently culpable state of mind.” Id. at 834 (internal citations and quotations omitted). Under the second prong, the subjective prong, the inmate must demonstrate that the prison official's state of mind was one of “deliberate indifference” to inmate health or safety. Farmer, 511 U.S. at 833. To be deliberately indifferent, a prison official must “know[ ] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837. Deliberate indifference “lies somewhere between negligence and purpose or knowledge: namely, recklessness of the subjective type used in criminal law.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015). A prison official's subjective actual knowledge can be proven through circumstantial evidence. Id.

Here, Plaintiff summarily alleges that Defendant McKissack failed to call mental health to assist Plaintiff; however, he does not provide any other additional allegations to support that the failure on this officer to make the decision to contact mental health is a constitutional violation. Plaintiff does not allege that he specifically asked Defendant McKissack to do so or that this Defendant was aware Plaintiff was in clear need of mental health services. Moreover, Plaintiff alleges that he was seen by medical after the incident. ECF No. 1-3 at 53-54. Specifically, Plaintiff alleges the nurse asked him questions about his mental health. Id. Finally, it is unclear why Defendant McKissack would have any particular knowledge as to the need for a mental health counselor, as Plaintiff does not allege this Defendant has any sort of health services background. Thus, the undersigned recommends dismissing this claim against Defendant McKissack.

5. Conditions of Confinement

Plaintiff alleges that after the incident, he was not given a mattress and was left with “two thin pieces of cotton.” ECF No. 1-3 at 56. He alleges there were roaches in the dorm he was placed in after the incident. ECF No. 1-3 at 56. However, Plaintiff alleges he complained to the RHU staff and Defendant Greene as “he is over lock up,” he was told that was all they had. ECF No. 1-3 at 56. He alleges another inmate threw feces down the wall where there was a hole. ECF No. 1-3 at 56. However, Plaintiff alleges he told “day shift” officers, and they said that they would see what they could do, but they did not do anything. ECF No. 1-3 at 56-57. He alleges “Sweetenburg” was the officer he spoke to; however, Plaintiff did not name him as a Defendant.

The Eighth Amendment protects prisoners from cruel and unusual living conditions. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Conditions that are restrictive and even harsh are part of the penalty criminal offenders pay for offenses against society. Id. at 347-49. The United States Supreme Court has held that prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement: they must ensure adequate food, clothing, shelter and medical care, and must take reasonable measures to guarantee the safety of inmates. See Farmer, 511 U.S. at 832. In order to state a viable conditions-of-confinement claim an inmate must show that: (1) the conditions were objectively serious enough to pose a substantial risk of serious harm; and (2) that the prison official's state of mind was one of “deliberate indifference.” Farmer, 511 U.S. at 834. Plaintiff does not specifically allege which Defendant he spoke to about his cell conditions, other than the RHU staff, though he does state that Defendant Greene was over the RH U.Second, Plaintiff has not sufficiently pled that these conditions posed a substantial risk of serious harm or that the officials were deliberately indifferent to his needs.

As to the allegation that he did not have a mattress in the RHU, the Fourth Circuit has also held that removal of a mattress for short periods of time does not state a violation of Plaintiff's constitutional rights. Joyner v. Patterson, No. 0:13-cv-2675-DCN, 2014 WL 3909531, at *6 (D.S.C. Aug. 11, 2014). As to the allegation that another inmate threw feces down a hole into his cell, “the mere smell or presence of human waste or bodily fluids does not rise to the level of a constitutional violation.” Salmons v. W. Reg'l Jail Auth., No. 3:18-cv-1447; 2019 WL 5616916, at *6 (S.D. W.Va. Oct. 30, 2019); see, e.g., Harris v. FNU Connolly, No. 5:14-CV-128-FDW, 2016 WL 676468, at *5 (W.D. N.C. Feb. 18, 2016), Cff'd, 667 Fed.Appx. 408 (4th Cir. 2016) (granting motion to dismiss where plaintiff alleged holding cell was unsanitary because of a “massive amount of urine, feces, and vomit on both the floor and walls in which the plaintiff was forced to live for 30 plus days”); Powell v. Fed. Bureau of Prisons, No. 1:08-cv-00199, 2009 WL 3160124, at*1 (S.D. W.Va. Sept. 25, 2009) (granting motion to dismiss where plaintiff alleged air was “saturated with the fumes of feces, the smell of urine and vomit as well as other stale body odors”).¹⁴ Moreover, Plaintiff alleges he spoke to Sweetenburg about this issue, and Plaintiff further alleges that Sgt. Adams did come to his cell and told Plaintiff they would move the other inmate. ECF No. 1-3 at 57. Aside from alleging in his own Complaint that the officers were seeking to rectify the issue, the officers he alleges he spoke to about this condition are not named in this Complaint. Finally, as to his claim that he saw roaches in his cell, this cursory allegation fails to state a claim for relief. Watts v. Davis, No. 8:19-cv-02261-JMC-JDA, 2019 WL 7568192, at *4 (D.S.C. Oct. 31, 2019), report and recommendation adopted, No. 8:19-cv-02261-JMC, 2020 WL 136836 (D.S.C. Jan. 13, 2020); see generally Gaulman v. Alvin S.G.D.C., No. 9:22-cv-04115-RMG-MHC, 2023 WL 2529663, at *3 (D.S.C. Feb. 22, 2023), report and recommendation adopted, No. 9:22-cv-4115-RMG, 2023 WL 2529209 (D.S.C. Mar. 15, 2023) (analyzing a conditions of confinement claim from a pretrial detainee). Thus, the undersigned recommends finding that even liberally construing Plaintiff's Complaint, he fails to state a claim for relief as to the named Defendants based on these allegations.

14 In considering a motion for summary judgment in Beverati v. Smith, the Fourth Circuit considered a claim by inmates that when they were initially placed in segregation, their cells were infested with vermin; smeared with human feces and urine; and were flooded with water from a leaking toilet. Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997). The Fourth Circuit, in considering inmates' allegations to support a substantive due process claim, concluded that these conditions were not so atypical that exposure to them for a six-month period imposed a significant hardship on the inmates. Id.

6. Due Process Violation

Plaintiff alleges that as a result of the incident described in his Complaint, Plaintiff participated in a disciplinary hearing. At that hearing, Plaintiff alleges Defendant DHO Brown violated his rights because he deprived Plaintiff of the right to get a “new counsel substitute,” he was unable to obtain video footage of the event, and he was unable to question his accusers. ECF No. 1 at 36. In Wolff, the Supreme Court attempted to strike a balance between the due process rights of an inmate and the penological needs of prisons.

Prisoners are afforded the rights of due process, while also balancing the interests of penal security. Wolff v. McDonnell, 418 U.S. 539 (1974). For procedural due process to be constitutionally sufficient, a disciplinary proceeding should include: (1) advance written notice of the hearing; (2) the qualified opportunity by the prisoner to present evidence and call witnesses, unless doing so would be injurious to institutional safety and correctional goals¹⁵; and (3) the receipt of a written statement of the factfinder as to the evidence used to come to a determination and the reason for the disciplinary action. Brown v. Braxton, 373 F.3d 501, 504-05 (4th Cir. 2004). Minimum procedural protections are required when a prisoner may be deprived of a liberty interest under the Due Process Clause. Burnette v. Fahey, 687 F.3d 171, 181 (4th Cir. 2012). In the context of prisons, there is a mutual accommodation between institutional needs and objectives and the provisions of the constitution. Wolff, 418 U.S. at 556. Prison officials may deny witness inmates' requests regarding calling witnesses at hearings where “legitimate penological interests justify excluding a witness.” Braxton, 373 F.3d at 505.

15 Inmates are not entitled to confront the witnesses against them, nor are they guaranteed the right to retained or appointed counsel. Brown, 373 F.3d at 504-05.

Here, Plaintiff alleges he was prevented from questioning his accusers and from using or obtaining video footage of the event. Defendants argue he has failed to state a claim for relief. However, in considering Plaintiff's allegations, while the undersigned can conceive of legitimate penological reasons why Defendant DHO Brown may have declined to allow Plaintiff to present certain witnesses or evidence, that information is not before this court. Thus, Plaintiff's allegations are sufficient to state a claim for relief as presented.

C. Motion for a Temporary Restraining Order

Finally, Plaintiff filed a Motion for a Temporary Restraining Order, ECF No. 58, on October 12, 2023. Plaintiff argues Defendants are preventing his access to the courts by: (1) denying him access to the law library; (2) providing him an insufficient number of supplies; and (3) failing to fix his tablet, thereby hindering his ability to participate in his case. ECF No. 58 at 3-4; 8. Defendants oppose Plaintiff's request for a temporary restraining order, refuting the claims made by Plaintiff. The granting of a temporary restraining order is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). A plaintiff seeking a temporary restraining order must establish: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter, 555 U.S. at 20. The primary purpose of injunctive relief is to preserve the status quo pending a resolution on the merits of a case. See Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980) (quoting Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94, 97 (4th Cir. 1960)).

The undersigned recommends dismissing Plaintiff's Motion because he has failed to establish one or more of the elements outlined under Winter. Plaintiff contends he has been denied access to the courts because he is unable to obtain the necessary supplies or research case law to support his allegations. As an initial matter, some of Plaintiff's allegations are against individuals he did not name in his Complaint, including “Brightharp” and “Ms. Lynah.” See ECF No. 58 at 3. Aside from lodging allegations against non-parties, Plaintiff does not establish any allegations that would suggest he is likely to succeed on the merits. In fact, the opposite is true. As pointed out by Defendants, while Plaintiff alleges he was denied access to a law library, he consistently cites to case law within his filings. More to the point, Plaintiff alleges that he has not been provided adequate supplies to respond to allegations and meet deadlines in his lawsuit; however, prior to the filing of his Motion for Temporary Restraining Order, Plaintiff had filed the following documents within the span of three months: the Complaint, spanning nearly 77 pages, a Motion to Appoint Counsel, a Motion for Intervention, a Motion for Settlement, a Motion for Order to Show Cause, a Motion for Copies at no Expense, and a Motion for Extension of Time. A month after the filing of the Motion for Temporary Restraining Order, Plaintiff filed a document styled as Motion to Amend/Correct his Complaint, which was more than 200 pages in length. Plaintiff's own filings thus cast doubt on his claims that he does not have access to enough paper and pencil.

Moreover, Plaintiff indicates within his Motion for Temporary Restraining Order that he does not need the assistance of a lawyer other than to avoid being a “target of retaliation.” ECF No. 58 at 10. The fact that Plaintiff has been able to regularly file a multitude of documents, as well as respond to every motion that has been filed by Defendants casts doubt on his ability to establish he has suffered irreparable harm necessitating a temporary restraining order or that the balance of equities should tip in his favor. Further, Plaintiff does not provide allegations sufficient to establish what retaliation he believes has necessitated a lawyer. Finally, Plaintiff has in no way provided any information suggesting that issuing a temporary restraining order would be in the public interest. For these reasons, the undersigned recommends dismissing Plaintiff's Motion for Temporary Restraining Order.

7. Conclusion and Recommendation

The undersigned has carefully considered the entirety of Plaintiff's allegations contained with the hundreds of pages he has filed with this court. After considering the multitude of allegations against the several Defendants, the undersigned recommends dismissing Defendant McMaster's Motion to Dismiss, ECF No. 31, at moot. The undersigned also recommends dismissing as moot, Defendants' Motion to Dismiss, ECF No. 39. The undersigned recommends denying Plaintiff's Motion for Temporary Restraining Order, ECF No. 58. The undersigned recommends granting Defendant McMaster's Motion to Dismiss the Supplemental Complaint, ECF No. 86. The undersigned recommends granting in part and denying in part the Defendants' Motion to Dismiss Plaintiff's Supplemental Complaint, ECF No. 89. The undersigned recommends granting the Motion to Dismiss, ECF No. 89 as to all claims except Plaintiff's excessive force claim against Defendants Timmons, Weston, Robinson, McKissack, and Greene and Plaintiff's claim against Defendant DHO Brown as to the alleged due process violation.

IT IS SO RECOMMENDED.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4^thCir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).