United States District Court, W.D. North Carolina, Asheville Division
BRICE C. MOORE, Plaintiff,
HUBERT CORPENING, Defendant.
D. Whitney, Chief United States District Judge.
MATTER is before the Court on Plaintiff’s
“Motion to Return All of Plaintiff Property That Marion
Correction Let Plaintiff Have the Entire Time That Plaintiff
Has Been on E-Unit Restrictive Housing Since May 3-2018
Injunction Order” [Doc. 1], which the Court construes
as a motion for temporary restraining order or preliminary
Plaintiff Brice C. Moore (“Plaintiff”) is a
prisoner of the State of North Carolina, currently
incarcerated at Marion Correctional Institution (MCI) in
Marion, North Carolina. Plaintiff filed numerous actions in
this Court pursuant to 42 U.S.C. § 1983, alleging
various constitutional violations at MCI and at
Plaintiff’s previous place(s) of incarceration. Most
recently, Plaintiff’s Complaint in 1:19-cv-00091-FDW
survived initial review and Plaintiff’s Complaints in
1:19-cv-00005-FDW and 1:19-cv-00201-FDW were dismissed as
duplicative of 1:19-cv-00091-FDW. Plaintiff has appealed
those dismissals to the Fourth Circuit Court of Appeals. The
appeal from the dismissal of 1:19-cv-5 was dismissed for
failure to prosecute. The appeal from 1:19-cv-201 remains
1:19-cv-00091, Plaintiff filed several documents in which he
makes direct and substantial threats against the lives of
other inmates and certain MCI officers, as well as officers
there generally. The Court has twice now referred the
Plaintiff’s threats to the proper authorities and was
told in both instances that the threats would be
investigated. This most recently occurred on or around August
22, 2019 in accordance with the Court’s Order entered
that day. [No. 1:19-cv-00091, Doc. 43].
motion before the Court, the Plaintiff seeks the return of
certain personal property that he contends was wrongly taken
from him at MCI on September 16, 2019. These items include
Plaintiff’s hygiene items, law books, and religious
materials. [Doc. 1 at ¶¶ 3-4]. The Plaintiff
asserts that he is being “punished beyond
measure” for “warning the system for over 4 years
now” that he “is going to kill the first [he]
encounters.” [Id. at ¶ 6]. The Plaintiff
contends that his personal belongings were taken because of
the lawsuits he has filed. [Id. at ¶ 9]. The
Plaintiff, however, has not filed an underlying complaint
asserting a claim or claims related to these missing items
that may form the basis of the relief he seeks here.
event, even if Plaintiff had filed a complaint, the Court
would deny Plaintiff’s motion. A preliminary injunction
is an extraordinary remedy afforded before trial at the
discretion of the district court. In re Microsoft Corp.
Antitrust Litig., 333 F.3d 517, 524-26 (4th Cir. 2003).
It is an extraordinary remedy never awarded as of right.
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 24 (2008). In each case, courts “must balance the
competing claims of injury and must consider the effect on
each party of the granting or withholding of the requested
relief.” Amoco Prod. Co. v. Village of
Gambell, 480 U.S. 531, 542 (1987). “[C]ourts of
equity should pay particular regard for the public
consequences in employing the extraordinary remedy of
injunction.” Winter, 555 U.S. at 24. To obtain
a preliminary injunction, the plaintiff must establish (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. Real Truth About Obama, Inc. v. Fed. Election
Comm’n, 575 F.3d 342, 346 (4th Cir. 2009).
Plaintiff’s motion based on the above factors,
Plaintiff is not entitled to a temporary restraining order or
a preliminary injunction. To the extent Plaintiff seeks
return of personal property, a claim based on the deprivation
of his personal property is not actionable under § 1983
unless there is no adequate post-deprivation remedy
available. See Parratt v. Taylor, 451 U.S. 527, 542
(1981), overruled on other grounds by 474 U.S. 327
(1986); Harris v. McMullen, 609 Fed.Appx. 704, 705
(3d Cir. 2015) (unpublished). Because North Carolina provides
an adequate remedy by filing a common law claim for
conversion of property, Plaintiff has failed to demonstrate
the likelihood of success on the merits and, therefore,
injunctive relief is not appropriate.
Plaintiff’s legal materials, prisoners must be allowed
“adequate, effective and meaningful” access to
the courts. Bounds v. Smith, 430 U.S. 817, 822
(1977). “Many courts have found a cause of action for
violation of the right of access stated where it was alleged
that prison officials confiscated and/or destroyed legal
materials.” Zilich v. Lucht, 981 F.2d 694, 695
(3d Cir. 1992) (citations omitted). However, for a denial of
the right of access to the courts, Plaintiff must show that
he was actually injured by such interference. Lewis v.
Casey, 518 U.S. 343, 349 (1996). Plaintiff has made no
such showing. Plaintiff, therefore, has failed to demonstrate
the likelihood of success on the merits, particularly where
he has not filed a related action in the first place, and,
therefore, injunctive relief is not appropriate.
Court also notes that it previously ordered that Plaintiff
shall not file any further documents in No. 1:19-cv-00091
without first seeking leave of Court to do so. [Civil Case
No. 1:19-cv-00091, Doc. 36; id see Doc. 43]. As
such, to the extent Plaintiff sought to file this motion in
No. 1:19-cv-00091, he did so in direct violation of a Court
Order and the Court declines to further address Plaintiffs
motion in relation to that case.
the Court instructs the Plaintiff that any requests for
extensions of time to meet deadlines in matters not pending
in this Court must be directed to the courts in which such
IS, THEREFORE, ORDERED that:
Plaintiff s Motion to Return All of Plaintiff s ...