United States District Court, E.D. North Carolina, Western Division
BRICE C. MOORE Plaintiff,
MR. RESPASS, et al., Defendants.
TERRENCE W. BOYLE, United States District Judge.
matter is before the court on the Memorandum and
Recommendation ("M&R") of United States
Magistrate Judge Robert T. Numbers, II, pursuant to 28 U.S.C.
§ 636(b)(1)(C) and Fed.R.Civ.P. 72(b). D.E. 15. The
court ADOPTS the M&R.
September 23, 2016, plaintiff Brice C. Moore
("Moore"), a state inmate confined at Pasquotank
Correctional Institution ("Pasquotank") proceeding
pro se, filed a document which the Clerk construed
as a complaint pursuant to'42 U.S.C. § 1983, seeking
a preliminary injunction and temporary restraining order.
D.E. 1. On October 11, 2016, Moore re-filed his action on the
form prescribed for use in this district in response to an
order of deficiency, see Compl. (D.E. 4), and filed a letter
which the Clerk construed as a motion to require that his
legal mail be delivered in a manner that would enable him to
pursue his claims (D.E. 7).
Complaint, Moore alleges that gang members at Pasquotank
placed a "hit" on him. See Compl. ¶
V. He alleges that the hit was "forward[ed] to any close
custody camp" that the State may transfer him to.
Id. As a consequence, Moore (who was in protective
custody at the time he filed his Complaint), requests that
the defendants be enjoined from transferring him out of
protective custody. Compl. ¶ VII. He also seeks nominal
damages. Additionally, Moore requests the court to expunge,
and to prohibit, disciplinary convictions that he contends
were retaliation for his having sought protective custody.
Finally, he claims that Defendant Shaw is destroying his
March 9, 2017, Judge Numbers conducted a frivolity review
pursuant to 28 U.S.C. § 1915 and recommended that the
court dismiss the action as moot and deny Moore's motion
relating to mail procedures at Pasquotank. See M&R at 7.
On March 23, 2017, Moore filed objections to the M&R
(D.E. 16), accompanied by supporting documents (D.E. 16-1).
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the
magistrate judge's report or specified proposed findings
or recommendations to which objection is made."
Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (emphasis, alteration, and
quotation omitted); see 28 U.S.C. 636(b). Absent a timely
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, 416 F .3d
at 315 (quotation omitted).
court has reviewed the M&R, the record, and Moore's
objections. As for those portions of the M&R to which
Moore made no objection, the court is satisfied that there is
no clear error on the face of the record.
court reviews de novo the portions of the M&R to
which Moore has objected.
Moore makes the following six objections to Judge
Numbers' conclusion that his claim is moot: (1) he was
exposed to a substantial risk of serious harm, see Obj.
¶ 1; (2) Farmer v. Brennan. 511 U.S. 825 (1994)
allows officials to be held liable for an assault even if
they "could not guess beforehand precisely who would
attack whom, " Id. ¶ 2; (3) refusing to
place a prisoner in protective custody may constitute
deliberate indifference to a dangerous condition, id ¶
4; (4) deliberate indifference may be shown or supported by
evidence "of obstacles to admission to protective
custody, or of failure of protective custody actually to
provide safety, " Id. ¶ 6; (5) deliberate
indifference can be shown by "repeated examples of
negligent acts which disclose a pattern of conduct ... or by
showing systematic or gross deficiencies in staffing,
facilities, equipment or procedures;" id ¶ 7; and
(6) prison officials may be held liable if they fail to act
on a specific warning of danger to a particular prisoner. See
Id. ¶ 8.
extent Moore's objections accurately state the law, they
do not apply to his case. First, Moore acknowledged in his
Complaint that he "has not received an injury
yet[.]" Compl. ¶ V. Moreover, as Judge Numbers
concluded, Moore acknowledges that the day following the
described incident, Pasquotank officials placed him in
segregation where he remained at least up until the time he
filed his Complaint on October 11, 2016. See Compl. ¶ V.
Moore's transfer from Pasquotank on October 20, 2016,
mooted his motion to enjoin the defendants from returning him
to the general population. See, e.g.,
Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir.
2009); Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th
Cir. 2007); Williams v. Griffin. 952 F.2d 820, 823
(4th Cir. 1991); Magee v. Waters. 810 F.2d 451, 452
(4th Cir. 1987); Wright v. Bennett. No.
5:08-CT-3129-BO, 2010 WL 3075519, at *3 (E.D. N.C. Aug. 4,
2010) (explaining that "[t]he Fourth Circuit has
consistently held that when a prisoner is no longer subject
to the alleged unconstitutional condition, the claim is
moot") (collecting cases). Thus, Judge Numbers correctly
concluded that Moore's request for injunctive relief is
moot. These objections are overruled.
Moore argues that he was not in protective custody at
Pasquotank and that Pasquotank "refused to place [him]
on protective custody." Obj. ¶ 3. Judge Numbers
found, as a fact, that Moore was in Segregation at
Pasquotank. M&R at 4. Judge Numbers' finding is
supported by Moore's Complaint, where Moore states that
after the incident on July 12, 2016 "[he] was placed in
segregation on July 13, 2016 and [had] been there
since." Compl. ¶ V; see also Id.
at ¶ VII (requesting injunction "to leave [Moore]
on protective custody A-seg."). Thus, Judge Numbers
correctly concluded that Pasquotank provided Moore the safety
from threats he sought. See Lloyd v. MacNeish, No.
5:12-CT-3163-FL, 2015 WL 1391476, at * 6 (Mar. 25, 2015)
(reasons for assigning an inmate to administrative
segregation include "protecting] an inmate's
safety[.]"); Sears v. Price, No.
5:ll-CT-3208-FL, 2014 WL 1266830, at * 13 (E.D. N.C. Mar. 26,
2014) (reasons for placing an inmate in segregation include
the inmate's personal health and safety). This objection
Moore argues that the defendants failed to save relevant
video footage. Obj. ¶ 5. Moore's Complaint does not
refer to the existence of video footage, however, in a letter
to the court Moore states that he "asked the court to
order Pasquotank to hold the video tape from Unit two C-Block
downstairs on 7-12 for evidence." See Letter (D.E. 11).
However, Judge Numbers did not conclude that Moore had not
been threatened. Rather, Judge Numbers concluded that
Pasquotank officials provided Moore ...