United States District Court, W.D. Virginia, Roanoke Division
Smith, Pro Se Plaintiff.
OPINION AND ORDER
P. Jones United States District Judge
plaintiff, Elbert Smith, a Virginia inmate proceeding pro se,
filed this prisoner civil rights action under 42 U.S.C.
§ 1983, complaining that he is confined in long-term
segregated confinement in violation of his constitutional
rights. He now moves for a preliminary injunction. I find
that his motion must be denied.
filed his § 1983 Complaint while confined at Wallens
Ridge State Prison (“Wallens Ridge”) in
segregated confinement, naming Wallens Ridge officials as
defendants. His present motion for interlocutory relief,
signed and dated on November 7, 2017, alleges that on October
27, 2017, “the defendants retaliated against [him] by
moving [him] . . . to Red Onion State Prison [“Red
Onion”] due to the lawsuit he filed against
them.” Mot. Inj. 1, ECF No. 23. Smith reports that
before he left Wallens Ridge, defendant Dennis Collins
(“Dennis”) told him that “his brother will
take care of him when he get[s] to the Onion.”
Id. Officials at Red Onion allegedly informed Smith
upon his arrival that his status on the Segregation Step-Down
Program had been backtracked from Special Management 2
(“SM-2”) to SM-0, eliminating “all his
earned privileges.” Id. Dennis' brother
Larry Collins (“Larry”) allegedly told Smith at
Red Onion that “he was taking all his privileges, until
[Smith] dropped the lawsuit against [Larry's]
brother” and that “life is going to be real hard
for [Smith]” at Red Onion. Id.
also claims that Larry threatened to raise his security level
and to refuse him any progress in the Step-Down Program. When
Smith asked Larry about his “special diet, ”
Larry allegedly threatened in late October and again on
November 3 that “the only special diet [Smith] will be
receiving is a tray filled with shit and piss, until he
dropped the lawsuit.” Id. at 2. Smith's
motion states that he “will not be eating for the
remainder of the time he's [at Red Onion] because he
don't trust nobody” and that by the time the court
receives his motion, he “should be on ‘hunger
strike protocol.'” Id. He also alleges
that Larry “threatened his life” on November 3.
Id. Aff. Facts 1, ECF No. 23-2.
relief in his motion, Smith asks the court to order his
transfer to a Security Level 3 prison. He states that without
the requested relief, he will continue to suffer “a
complete loss of appetite, despair, depression, paranoia,
insomnia, hallucinations, thoughts of suicide, and
confusion.” Mot. Inj. 2, ECF No. 23.
days after the court received and docketed Smith's motion
on November 15, 2017, the defendants filed their Motion for
Summary Judgment. Their evidence is that until recently,
segregation inmates classified as Level S (like Smith) could
participate in a modified version of the Step-Down Program
while at Wallens Ridge. On October 27, however, all such
inmates, including Smith, were transferred from Wallens Ridge
to accommodate unrelated program changes at that facility so
they could continue the Step-Down Program at Red Onion.
Defendants' evidence is that Smith was classified as SM-0
while still at Wallens Ridge because he had received poor
ratings on the personal hygiene goals of the program, based
on his refusal to comply with grooming standards.
“Effective November 3, 2017, Smith was advanced to SM-2
status.” Mem. Supp. Mot. Summ. J., Mathena Aff. ¶
14, ECF No. 27-1. “Presently, Smith's progression
through the Step-Down Program will not be affected by his
refusal to comply” with grooming standards on the basis
of his religious beliefs. Id. at ¶ 15.
general rule, an inmate's transfer or release from a
particular prison moots his claims for injunctive relief with
respect to his incarceration there. See Incumaa v.
Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007); see
also Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.
1991) (transfer rendered moot a prisoner's claims for
injunctive and declaratory relief). Because Smith is no
longer confined under the authority of the Wallens Ridge
defendants in this action, I must deny as moot his pending
motion seeking preliminary injunctive relief against those
event, he has not demonstrated grounds warranting such relief
from anyone. Because preliminary injunctive relief is an
extraordinary remedy, the party seeking such relief must make
a clear showing “that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008).
fails to allege facts in support of his conclusory contention
that his transfer and reduction to SM-0 were retaliation for
his lawsuit. See Adams v. Rice, 40 F.3d 72, 74 (4th
Cir. 1994) (requiring more than conclusory allegations of
retaliation to state § 1983 claim). Moreover, the
defendants' evidence establishes that Smith was
transferred along with all other Step-Down program inmates
for reasons entirely unrelated to his lawsuit and was
returned to SM-2 within days of that transfer. Thus,
I find that Smith is not likely to succeed on the merits of
his retaliation claim so as to warrant the interlocutory
relief he seeks.
find that Smith's stated fears for his safety based on
the alleged threats by the Collins brothers do not support
his request for an injunction. To the extent that a plaintiff
alleges that a defendant threatened him, but fails to allege
that such a defendant took steps to carry out the threat,
that plaintiff fails to state a § 1983 claim. See,
e.g., Wilson v. McKellar, 254 F. App'x 960, 961 (4th
Cir. 2007) (unpublished). Smith does not allege that anyone
served him inedible food at Red Onion as Larry allegedly
threatened to do, that Smith actually stopped eating meals
there as he threatened in his motion, or that Larry made or
took action toward carrying out any other specific and
credible threat to harm him. Accordingly, I find that Smith
is not likely to succeed on the merits of his safety claim so
as to warrant the interlocutory relief he seeks.
reasons stated, it is ORDERED that the
plaintiff's motion seeking preliminary injunctive ...