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Moore v. Doe

United States District Court, W.D. North Carolina, Statesville Division

August 22, 2017

BRICE C. MOORE, Plaintiff,
JOHN DOE, et al., Defendants.


          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER comes before the Court on a Motion to Dismiss or, Alternatively, for Summary Judgment by Defendant Danny Safrit. (Doc. No. 32). Also pending is Plaintiff's Motion for Preliminary Injunction, Motion for Temporary Restraining Order. See (Doc. Nos. 6, 20).

         I. BACKGROUND

         Pro se Plaintiff Brice Moore is a state prisoner currently incarcerated at Marion Correctional Institution in Marion, North Carolina. Plaintiff filed his Complaint on December 27, 2016, while he was incarcerated at Alexander Correctional Institution, alleging that members of the Bloods street gang have put a hit out on his life wherever he is incarcerated in the State of North Carolina and that officials at Alexander Correctional Institution “denie[d] [him] protective custody.” (Doc. No. 1 at 2, 5, 8). According to Plaintiff, he has suffered no injury because he “refuses to return to population to let it take place, ” claiming that he faces danger from both staff members and fellow inmates if returns to the general population in the prison. (Id. at 3). Plaintiff asserts that prison officials would do “whatever it takes to discourage him, ” including shipping him “to another facility and applying the same harassment” there. (Id.). Plaintiff seeks an “emergency injunction” and “to be placed on protective custody and left on administrative segregation for fear of his life.” (Id. at 7-8).

         In his motion requesting a preliminary injunction, Plaintiff states that he “keep[s] telling the Administration that the United Blood Nation has ordered a hit” on him but that prison officials have refused to “give [him] protection.” (Doc. No. 6 at 1). Plaintiff claims that, without protective custody, he “will most likely be killed, if not luckily to survive the attack that awaits” him. (Id.). Moreover, in support of a renewed request for a temporary restraining order and preliminary injunction, (Doc. No. 20), Plaintiff has attached, among other things, a Declaration in which he claims that he had first requested protective custody from Alexander officials on October 20, 2016, but was thereafter “constantly threaten[ed] that if he did not return to population, that he would receive disciplinary infractions, and would be placed on a control status which [is] I-CON.” (Doc. No. 20-1 at ¶¶ 2-3). Plaintiff reports that he had been placed on ICON status when, given the choice between “putting his life into a dangerous situation” by returning to regular population and incurring disciplinary infractions, he chose the disciplinary infractions. (Id. at ¶ 4). Once again, in the Declaration, Plaintiff claims he is “entitled to a temporary restraining order requiring the defendant to arrange for the plaintiff to be placed in Admin Segregation without retaliation . . . .” (Id. at ¶ 6).

         In a submission to the Court in response to a Court order, Alexander officials explained that Plaintiff's October 20, 2016, request for protective custody had been investigated but that no evidence was found supporting a need for such protective custody. (Doc. No. 15 at 4). Prison officials explained that Plaintiff had reported to them that an individual named Bruce Jones, who was not incarcerated in a DPS facility and with whom Plaintiff had had problems outside of prison, was “out to get him.” (Id. at 7). Plaintiff reported to prison officials that Jones had “connections [to] Bloods and Folk inmates that were after” Plaintiff. (Id. at 7-8). Plaintiff admitted that he had not received any threats from an active North Carolina inmate and had not been physically injured. (Id. at 8). Prison officials concluded that they “found no evidence to support that Inmate Moore needs protective housing. The only person he has alleged making any threats to him is not housed at Alexander Correctional Institution and according to [Plaintiff], he is not an inmate at any facility.” (Id. at 8-9). Prison officials further explained that Plaintiff had been placed on Restrictive Housing Control Purpose (“RHCP) on December 15, 2016, after he had incurred multiple disciplinary infractions for refusing subsequent orders to return to protective custody. (Id. at 4).

         On April 24, 2017, this Court completed its frivolity review and dismissed all of Plaintiff's claims with the exception of “Plaintiff's Eighth Amendment deliberate indifference claim for prospective injunctive relief” against the Superintendent and Assistant Superintendent of Alexander in their official capacities. (Doc. No. 17). On June 20, 2017, Plaintiff was transferred to Marion Correctional Institution. (Doc. No. 35 at ¶ 13: Corpening Aff.). Upon Plaintiff's arrival there, he was placed in the Rehabilitative Diversion Unit, a unit designed to transition inmates out of a segregation housing environment and provide intensive treatment and programming. (Id. at ¶ 6). On July 28, 2017, Defendant Safrit, who served until recently as the Interim Administrator at Alexander, filed the pending motion to dismiss or, alternatively, for summary judgment. (Doc. No. 32).

         In support, Safrit has submitted an affidavit, in which he states that he traced the investigation conducted by Alexander officials in response to Plaintiff's request for protective custody. (Doc. No. 34: Safrit Aff.). Defendant Safrit asserts that the information Plaintiff provided was that an individual named Bruce Jones was associated with the Bloods street gang and was “out to get him, ” but was not incarcerated at the time and was someone with whom Plaintiff had had problems outside of prison. (Id. at ¶ 6). In addition, Plaintiff denied being physically assaulted, admitted that he had not been pressured to engage in sexual activity, and stated that he was not involved in bartering or trading. (Id.). Plaintiff signed a Protective Control Interview Form documenting those responses. (Id. at ¶ 6 & Ex. A).

         Defendant Safrit also asserts that, on April 11, 2017, a Unit Manager at Alexander had received from the Clerk of Court a letter Plaintiff had written, explaining “[i]f they force me to population or modified, because I fear for my life, I am going to kill the first gang member I encounter, or officer.” (Id. at ¶ 10 & Ex. B). Six days later, Plaintiff submitted a second request to be placed in protective custody. (Id. at ¶ 11). Once again, Plaintiff was interviewed and, once again, he related that he had been threatened by “Blood members” who were ordered by Bruce Jones to kill him. (Id.). Nevertheless, Alexander officials requested a statement from the facility's Intelligence Officer, who indicated he had no information about any threat or hit issued against Plaintiff by members of the United Blood Nation or any other security threat group. (Id. at ¶ 12).

         On August 3, 2017, this Court entered an order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements for filing a response to the motion to dismiss. (Doc. No. 36). Plaintiff filed a response to the motion to dismiss on August 18, 2017. (Doc. No. 37).


         Federal Rule of Civil Procedure 12(b)(6) provides that a motion may be dismissed for failure to state a claim upon which relief can be granted.[1] A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint without resolving contests of fact or the merits of a claim. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992), cert. denied, 510 U.S. 828 (1993). Thus, the Rule 12(b)(6) inquiry is limited to determining if the allegations constitute “a short and plain statement of the claim showing the pleader is entitled to relief” pursuant to Federal Rule of Civil Procedure 8(a)(2). To survive a defendant's motion to dismiss, factual allegations in the complaint must be sufficient to “raise a right to relief above a speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a complaint will survive if it contains “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). For the purposes of a Rule 12(b)(6) analysis, a claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). The Court must draw all reasonable factual inferences in favor of the Plaintiff. Priority Auto Grp., Inc. v. Ford Motor Credit Co., 757 F.3d 137, 139 (4th Cir. 2014). In a Rule 12(b)(6) analysis, the Court must separate facts from legal conclusions, as mere conclusions are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. Importantly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. However, well-pleaded factual allegations are entitled to a presumption of truth, and the court should determine whether the allegations plausibly give rise to an entitlement to relief. Id. at 679.


         Here, Plaintiff's only remaining claim is “Plaintiff's Eighth Amendment deliberate indifference claim for prospective injunctive relief” against the Superintendent and Assistant Superintendent of Alexander in their official capacities, “based on their refusal to grant him protective custody at the prison.” (Doc. No. 17 at 7-8). In support of the motion to dismiss or alternatively for summary judgment, Defendant contends that Plaintiff's recent transfer to Marion Correctional Institution leaves prospective injunctive relief unavailable from either the Superintendent or Assistant Superintendent of Alexander. See Rendleman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) (“[A]s a general rule, a prisoner's transfer ...

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