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 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).
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.
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).
relief, Plaintiff seeks $50, 000, injunctive relief,
Defendants' prosecutions for felonies including
obstruction of justice and larceny.
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.”).
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.
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.
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
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.
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 § 1983, a plaintiff must allege that
the defendant, acting under the color of law, violated his