United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE
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).
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).
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,
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).
“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.
relief, Plaintiff asks to recover his items of personal
property, $250, 000 in compensatory damages, and $60, 000 in
MOTION FOR PRELIMINARY INJUNCTION
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.
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.
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.”).
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).
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.).
Attorney General's Response
Court ordered the Office of the Attorney General to show
cause why injunctive relief should not be granted. (Doc. No.
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
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.
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.
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.
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 ...