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Carter v. Tapp

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

November 14, 2019

FNU TAPP, et al., Defendants.


          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on initial review of the Complaint, (Doc. No. 1), and on consideration of pro se Plaintiff's Motions for Preliminary Injunction, (Doc. Nos. 7, 8). Plaintiff is proceeding in forma pauperis. (Doc. No. 5).

         I. BACKGROUND

         Pro se incarcerated Plaintiff filed a civil rights suit pursuant to 42 U.S.C. § 1983 naming as Defendants the following Marion Correctional Institution employees: Assistant Unit Manager FNU Tapp, Sergeant FNU Ingram, Sergeant FNU Morgan, and Officer FNU Hensley.[1]

         Construing the Complaint liberally and accepting the allegations as true, Defendants took Plaintiff's personal property (a radio and headphones) without a disciplinary hearing on January 14, 2019. Plaintiff claims that “they had no reason to take my radio and headphones that had nothing to do with anything.” (Doc. No. 1 at 3). Officials did not let Plaintiff use the television on March 4, 2019 to March 22, 2019, in violation of RDU program policy and Plaintiff's “constitutional immunity.” (Doc. No. 1 at 4). Plaintiff was not allowed television, radio, phone, newspaper, or “access to the press” or current events from January 14 to March 22, 2019, which violation his “1st Amendment prohibition to the press.” (Doc. No. 1 at 4). Defendants said that Plaintiff violated “a Prog. Matrix/Rule” and punished him twice for old write-ups which was double punishment in violation of the Fifth Amendment. (Doc. No. 1 at 4). Plaintiff claims that the foregoing is cruel and unusual punishment in violation of the Eighth Amendment. (Doc. No. 1 at 4).

         As relief, Plaintiff seeks $50, 000, injunctive relief, Defendants' prosecutions for felonies including obstruction of justice and larceny.


         “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.'” Micro Strategy, 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). 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.”).

         Plaintiff seeks transfer to another facility because his rights keep getting violated every day including defamation, malfeasance, disturbing the peace, cruel and unusual punishment, no due process regarding discipline and classification. Plaintiff claims that he keeps getting fake write-ups that result in privileges being taken away and that he is experiencing intentionally harmful interference with mail, visitation and communication. The write-ups stopped his progress through the RDU program. Officials are always giving him a problem, they do not tell him when he is supposed to go to the next phases and re-set his release/progress dates for no reason, they are giving him the wrong classification assignment, and they are not letting him get out of the program.

         They took his radio again, Plaintiff is not receiving newspapers, he is being denied access to the press, and is being subjected to illegal search and seizure. Plaintiff is also not receiving due process in disciplinary proceedings. Plaintiff did not get to take a shower on May 15, 2019 because officials said he was acting out of control and threatening staff which is a lie. It is also a lie that Plaintiff had his window covered and refused to uncover it. Plaintiff is receiving cell restrictions and losing privileges. He was denied canteen on May 13, and 17, 2019. Plaintiff's PREA grievances are being ignored. PREA Staff Mr. Irving reported that Cordosi was not allowed to be in Plaintiff's block or touch Plaintiff but Cordosi violated this between March 4 and May 7, 2019. Officer Marsh is calling Plaintiff names and Plaintiff had to put a PREA grievance on him. Marsh has shouted that Plaintiff is in protective custody which is supposed to be confidential.

         Now Plaintiff is in protective custody as a non-participant in RDU when he is not in the RDU program anymore. Plaintiff is being defamed and made to look like a bad person and gang member associate terrorist which is not true. They are disturbing his peace which is a criminal offense and constitutional violation. Plaintiff has not been able to go to school, work time off his sentence, or get normal privileges and is being tortured. Plaintiff believes that the Caucasian officials are being racist and discriminating against him and oppressing him for no reason. Plaintiff is not safe at the prison and is at risk of irreparable harm. Plaintiff seeks transfer to another prison as soon as possible.

         Plaintiff has failed to establish that he is likely to succeed on the merits or that he is likely to suffer irreparable harm in the absence of preliminary relief. Therefore, his Motions seeking preliminary injunctive relief will be denied.


         “Section 1983 imposes liability on state actors who cause the deprivation of any rights, privileges or immunities secured by the Constitution.” Loftus v. Bobzien, 848 F.3d 278, 284 (4thCir. 2017) (quoting Doe v. Rosa, 795 F.3d 429, 436 (4th Cir. 2015)). To state a claim under ยง 1983, a plaintiff must allege that the defendant, acting under the color of law, violated his federal ...

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