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Hope v. Rehabilitative Diversion Unit

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

April 23, 2019

J'BARRE HOPE, Plaintiff,



         THIS MATTER is before the Court on initial review of Plaintiff's Complaint, (Doc. No. 1), and on Plaintiff's Emergency Motion for Injunctive Relief, (Doc. No. 10), to which the Office of the Attorney General of North Carolina has filed a Response to an Order to show cause why relief should not be granted. (Doc. Nos. 13, 14). Plaintiff has also filed a Motion to Disqualify the North Carolina Office of the Attorney General, (Doc. No. 14), a Motion to Appoint Counsel, (Doc. No. 16), a Motion for Default Judgment, (Doc. No. 17), a Motion for Appropriate Relief, (Doc. No. 18), and a Motion for No-Response Default Judgment, (Doc. No. 19). Plaintiff is proceeding in forma pauperis. (Doc. No. 13).


         The pro se incarcerated Plaintiff filed a civil rights suit pursuant to 42 U.S.C. § 1983 addressing the conditions of confinement he is allegedly experiencing at the Marion Correctional Institution's Rehabilitative Diversion Unit (“RDU”) Program. He names as the sole Defendant the “Rehabilitative Diversion Unit of Marion Correctional.” (Doc. No. 1 at 1).

         Construing the Complaint liberally and accepting the allegations as true, Plaintiff was admitted to Marion C.I.'s RDU on January 9, 2018. At that time he had three standard transfer bags of property however, the “R.D.U. of MC turnkeys” seized the property and gave Plaintiff the choice between either donating the property or having it destroyed. (Doc. No. 1 at 2). Plaintiff rejected this “ultimatum” and his properly was disposed of. (Id.). The property included books, periodicals, tennis shoes, smart watch, religious headgear, hygiene items, a razor.

         Plaintiff was then placed in indefinite solitary confinement where he had been housed for 274 consecutive days at the time he filed the Complaint. Prolonged solitary confinement causes serious mental illness. On October 15, 2018, after more than nine months in solitary confinement, he was diagnosed with “Abnormal Weight Loss associated with Heightened Anxiety and Antisocial Personality Disorder, ” and has lost more than 50 pounds associated with the mental illness. (Doc. No. 1 at 2).

         In a “Declaration of Truths” filed with the Complaint, (Doc. No. 1 at 6), Plaintiff states that he is locked in a 6' by 9' sleeping cubicle with a toilet, mattress, and less than two cubic feet of personal property where he is locked at least 23 hours per day. He is allowed to leave in handcuffs three times per week for a 15-minute shower and four times per week for one hour of recreation in a designated recreation cubicle.

         As relief, Plaintiff asks to recover his items of personal property, $250, 000 in compensatory damages, and $60, 000 in punitive damages.


         (1) Legal Standard

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008)). A preliminary injunction is a remedy that is “granted only sparingly and in limited circumstances.” MicroStrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir. 1991)).

         To obtain a preliminary injunction, a movant must demonstrate: (1) that he is likely to succeed on the merits; (2) that 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. DiBiase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting Winter, 555 U.S. at 20).

         The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. See Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). It is well established that “absent the most extraordinary circumstances, federal courts are not to immerse themselves in the management of state prisons or substitute their judgment for that of the trained penological authorities charged with the administration of such facilities.” Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994); see Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) (“judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.”).

         (2) Plaintiff's Motion

         Plaintiff filed an Emergency Motion for Injunctive Relief, (Doc. No. 10), in which he seeks relief from continuous solitary confinement that had lasted, at the point the Motion was filed, for more than 12 months. He alleges that he has been diagnosed with heightened anxiety and antisocial personality disorder while confined in continuous solitary confinement and is suffering from abnormal weight loss due and malnutrition has resulted from the solitary confinement. He seeks unconditional release from solitary confinement, a 3, 000-calorie diet and protein snack for 12 months, and transfer to “Facility 4870.” (Doc. No. 10 at 2).

         Plaintiff attached to his Motion a Nutritional Assessment Form completed by Registered Dietician Mickie Herman on October 11, 2018. (Doc. No. 10-1). The form indicates that Plaintiff has lost “50 LBS IN THE LAST YEAR” and that he is diagnosed with “ABNORMAL WEIGHT LOSS, HTN, ANXIETY, ANTISOCIAL PERSONALITY D/O.” (Doc. No. 10-1 at 1). The form's “Recommendations” section states that, for the next six months, Plaintiff should receive regular non-meat diet with snacks, “ADVISE PT TO CONSUME ALL MEALS AND SNACKS. ENCOURAGE DIET COMPLIANCE … MONITOR WEIGHT AND LABS PER MEDICAL POLICY; CONSULT RD WITH ANY SIGNIFICANT CHANGES.” (Id.).

         (3) Attorney General's Response

         The Court ordered the Office of the Attorney General to show cause why injunctive relief should not be granted. (Doc. No. 11).

         The Attorney General filed a Response, (Doc. No. 15), arguing that emergency injunctive relief should not be granted because Plaintiff has failed to satisfy the elements of an Eighth Amendment claim and thus is not likely to succeed on the merits, the conditions of which Plaintiff complains are due to his own actions, he has failed to demonstrate irreparable harm, and granting relief is not in the public interest.

         The Attorney General attached to the Response materials including an affidavit by Marion C.I. Correctional Assistant Superintendent for Programs David Cothron, who is familiar with Marion C.I.'s RDU and with Plaintiff, (Doc. No. 15-1).

         RDU is designed as an alternative for offenders assigned to long-term restrictive housing for control purposes. The goal is to allow an offender who would otherwise be assigned to long-term restrictive housing the opportunity to work toward a custody and control status that is more akin to general population. The Program attempts to accomplish this through phased special programming. An offender's custody and control status gradually improves as he moves through phases of the Program until their status is virtually indistinguishable from general population.

         Enrollment in the Program is not voluntary; members are selected from a pool of eligible offenders. Offenders who are aggressive or have a history of assaultive infractions are typically selected. Once placed in the Program, an offender stays there until he completes the Program or is moved out of it as a result of no longer meeting one of the eligibility criteria, or some other exigent circumstance.

         Members of the Program can be categorized as participating or non-participating; they are considered participating if they are actively engaged in the specialized RDU. Members of the Program who actively refuse to engage in the programming or commit some disciplinary infractions are considered non-participating. A participating member can become a non-participating member as ...

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