United States District Court, D. South Carolina, Greenville Division
C. NORTON, UNITED STATES DISTRICT JUDGE
matter is before the court on: (1) United States Magistrate
Judge Kevin F. McDonald's report and recommendation
("R&R"), ECF No. 10, that the court deny
plaintiffs emergency motion requesting a temporary
restraining order ("TRO") and injunctive relief,
ECF No. 1; and (2) plaintiffs motion for reconsideration of
the court's July 31, 2017 order dismissing the case for
failure to comply with a court order, ECF No. 23. For the
following reasons, the court adopts the R&R, ECF No. 10,
denies plaintiffs emergency motion, ECF No. 1, and grants
plaintiffs motion for reconsideration, ECF No. 23.
Additionally, the court adopts those portions of the R&R
which are not inconsistent with this order.
is a federal inmate currently housed at FCI Fort Dix in New
Jersey, serving a twenty-five year term of imprisonment for
producing child pornography. On or about June 5, 2017,
plaintiff filed an emergency motion requesting a TRO and
injunctive relief pro se, asking the court for a
restraining order against defendant to terminate plaintiffs
then-impending transfer from FCI Estill in South Carolina,
where he was housed at the time of filing. Emergency Mot. 1.
He avers that after Bureau of Prisons ("BOP")
officials discovered an investigation by the government of
the United Kingdom into his prior mistreatment and
retributive measures taken against him while in transit in
federal custody, BOP officials arbitrarily reassigned him to
another prison, causing plaintiff to "be forced into
prisoner transit where he will be vulnerable to yet more
mistreatment, either directly, indirectly, or
encouraged." Id. at 2. His prior mistreatment
allegedly occurred on December 12, 2013, shortly after his
sentencing while in transit at the Federal Transit Center
Oklahoma City in Oklahoma. Id. While there, he was
forced into a cell with a violent gang member who, after
being told the nature of plaintiff s charges by a BOP staff
member, assaulted plaintiff in the locked cell. Id.
He now contends that defendant's placement of plaintiff
back into transit "when his safety is better assured at
FCI Estill is evidence of preemptive measures being taken
by the BOP[, ]" requesting the court's intervention
by ordering defendant to terminate the transit order from FCI
Estill because of "the potentially life-threatening
danger this movement through transfer may cause."
Id. at 3.
13, 2017, the magistrate judge issued the R&R,
recommending that the court deny plaintiffs emergency motion
because: (1) the BOP has complete and absolute discretion of
where to confine a prisoner; and (2) plaintiff failed to
demonstrate all four factors requisite for a TRO and
injunctive relief, specifically that he is likely to succeed
on the merits because an inmate has no constitutional right
to be housed in a particular prison. R&R 3. The R&R
specifically advised the parties of the procedure for filing
objections thereto and the consequences if they failed to do
so. Id. at 4. Also on June 13, 2017, the magistrate
judge issued a proper form order, providing plaintiff with
explicit instructions and a timeline to bring this case into
proper form for evaluation and possible service of process.
ECF No. 9. The proper form order warned plaintiff that
failure to do so would subject the case to dismissal.
6, 2017, the court issued an order affirming the R&R and
denying plaintiffs emergency motion, noting that plaintiff
failed to timely file objections to the R&R. ECF No. 12.
On or about July 27, 2017, plaintiff filed amotion for an
extension of time to file objections to the R&R. ECF No.
21. However, on July 31, 2017, the court issued an order
dismissing the case without prejudice pursuant to Rule 41 of
the Federal Rules of Civil Procedure because plaintiff failed
to comply with the proper form order. ECF No. 17.
August 14, 2017, plaintiff filed a motion for reconsideration
of the court's July 31, 2017 order dismissing the case,
alleging that the BOP purposefully withheld the proper form
order sent by the court until after the deadline for
plaintiff to comply elapsed. He further alleges that he never
received the forms enclosed with the proper form order
because the BOP removed those forms from the envelope sent by
the court. Defendant has not filed a response in opposition
to plaintiffs motion; however, he has not yet been served
with a summons in this case.
on September 13, 2017, the court granted plaintiffs motion
for an extension of time to file objections to the R&R,
extending the deadline to October 16, 2017. ECF No. 25. On or
about October 16, 2017, plaintiff timely filed objections to
the R&R, ECF No. 28. The R&R and motion for
reconsideration are now ripe for the court's
STANDARDS OF REVIEW
court is charged with liberally construing pro se
complaints and petitions, which are held to a less stringent
standard than those drafted by attorneys, in order to allow
the development of a potentially meritorious case. Hughes
v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam) (citations
omitted). Liberal construction, however, does not mean that
the court may ignore a clear failure in the pleadings to
allege facts that set forth a cognizable claim. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391
(4th Cir. 1990) ("The 'special judicial
solicitude' with which a district court should view such
pro se complaints does not transform the court into an
magistrate judge's recommendation does not carry
presumptive weight, and it is the court's responsibility
to make a final determination. Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with conducting
a de novo review of any portion of the magistrate
judge's report to which specific, written objections are
made, and may "accept, reject, or modify, in whole or in
part, " the recommendations contained in that report. 28
U.S.C. § 636(b)(1).
objects to the magistrate judge's findings that
'"it is well settled that an inmate has no
[constitutional right to be housed in a particular
prison' and that the BOP 'has complete and absolute
discretion regarding where a prisoner is to be held in
confinement.'" Obj. 1 (quoting R&R at 3). He
asserts: (1) "that no article of the Constitution allows
for the BOP to use a prison transfer as a retaliatory
tactic"; (2) "[m]oving a prisoner 1000 miles away
from his family as punishment after learning of a foreign
government's investigation into violations of his human
rights is not permissible"; and (3) "for the BOP to
interfere with a prisoner's access to the Court by
opening, reading, and deliberately delaying the delivery of
Court Orders during a suit in which he challenges the
BOP's tactics demonstrates further retaliation,
prejudice, and . . . disregard for Due Process."
Id. at 1-2.
the court notes that plaintiff comes before the court through
an emergency motion seeking a restraining order proscribing
defendant from transferring plaintiff from FCI Estill.
Emergency Mot. 1. Plaintiff has yet to articulate any further
relief sought. The purpose of the proper form order and the
documents enclosed therein is, in pertinent part, to allow
plaintiff to draft and submit a complaint for service on
defendant, which is necessary to a civil action. See
Fed.R.Civ.P. 3 ("A civil action is commenced by filing a
complaint with the court."). The court is unable to
fully assess the credibility of his allegations that BOP
officials have tampered with his legal mail because those
officials are not parties to this proceeding. However,
construing plaintiffs allegations as true, the court gives
plaintiff the benefit of the doubt. Therefore, the Clerk of
Court is directed to mail a copy of this order, the proper
form order, and the proper form documents to plaintiff.
Plaintiff shall comply with the proper form order no later
than twenty-one days from the date that this ...