United States District Court, D. South Carolina
REPORT AND RECOMMENDATION (MOTION FOR PRELIMINARY
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.
a civil action filed by a federal prisoner, Burl Washington
(“Plaintiff”). Under Local Civil Rule 73.02(B)(2)
(D.S.C.), pretrial proceedings in this action have been
referred to the assigned United States Magistrate Judge. This
case is before the undersigned magistrate judge for a report
and recommendation on Plaintiff's Motion for Preliminary
Injunction. ECF No. 126.
is a legally blind federal inmate,  previously housed at
FCI-Williamsburg, FCI-Estill, and FCI-Edgefield, all within
the geographical coverage of this court. He is currently
housed at FCI-Butner, in Butner, North Carolina. During eight
months before the filing of this Motion (since October 2017),
Plaintiff was transferred to various Federal Bureau of
Prisons (“BOP”) facilities nine times.
Id. at 3. This case was filed pro se while Plaintiff
was housed in South Carolina. Plaintiff is now represented by
counsel. In his Motion, Plaintiff asks this court to order
Defendant BOP to
(1) transfer [him] to, and/or maintain [him] at, a CARE Level
3 or 4 Federal Correctional facility that is commensurate
with his medical needs; (2) mandate that the facility where
[he] is housed provide [him] with medications required to
treat his glaucoma; (3) mandate that the facility where [he]
is housed engage the services of a nearby glaucoma specialist
so that he may receive treatment for his glaucoma; and (4)
mandate that the facility where [he] is housed provide [him]
with reasonable accommodations so that he may safely navigate
the facility and receive assistance with administration of
Id. at 2. Plaintiff asserts that he has been
subjected to cruel and unusual punishment due to BOP's
“inconsistent medical care” and failure to
provide him with the medical and personal assistance that he
needs because of his blindness. Id. at 2-3.
Plaintiff contends that the frequent transfers he has been
subjected to deprive him of the ability to establish a
therapeutic relationship with an ophthalmologist and other
needed specialists and subjects him to irreparable harm.
Id. at 4-5.
his requests for preliminary relief, Plaintiff contends that
his injunctive relief claims are not moot despite his
transfer from FCI-Estill and FCI-Edgefield because
inconsistent medical care has followed him to each prison to
which he has been transferred and the frequent transfers
increase the harm from such inconsistency. According to
Plaintiff this harm is “capable of repetition, yet
evading review.” Id. at 7-9. Plaintiff asserts
that the BOP's continuing failure to comply with the
directions for care issued by Dr. Nutaitis at the Medical
University of South Carolina (“MUSC”), ECF No.
126-2, such as exact timing of medications and timely
follow-up visits with an ophthalmologist, coupled with
evidence that Plaintiff's eye pressure problems become
worse without appropriate medication, show that irreparable
harm of pain and continued loss of vision will result without
the requested injunctive relief. ECF No. 126 at 10-11.
Plaintiff argues that the equities are in his favor because
the BOP's decisions to transfer him from one inadequate
care level institution to another while allowing him to lose
more eyesight and experience pain do not deserve deference.
Plaintiff also asserts that the BOP will suffer no harm from
the requested injunctive relief because it has facilities
that are designed to provide the type of care requested for
Plaintiff's uncommon condition. Id. at 12-13.
Plaintiff asserts that he can show likelihood of success on
the merits of his medical indifference claim because the BOP
has not followed the instructions of Dr. Nutaitis regarding
timing of medications and follow-up visits. Id. at
13. Plaintiff states that the injunctive relief requested is
in the public interest because the health and safety of
inmates and their constitutional rights should not be
disregarded where BOP's numerous transfers have
exacerbated Plaintiff's vision loss and pain.
Id. at 14.
respond to Plaintiff's Motion, asserting that it should
be denied because 1) the injunctive-relief claim is moot
because Plaintiff has been transferred from the institutions
where he received the medical care that he claims was
inadequate and he cannot pursue a Bivens claim
against the BOP or its officials in their official
capacities; 2) decisions about whether and where to transfer
federal inmates is within the official discretion of the BOP
and are not for the court to make, particularly where
Plaintiff is currently housed at a Care Level 3 institution
and receiving appropriate care; 3) Plaintiff's
allegations fail to satisfy the four-prong test of Winter
v. Natural Resources Defense Council, Inc., 55 U.S. 7,
20 (2008) because he cannot show a likelihood of success on
the merits or irreparable harm because any potential injury
that might arise from Plaintiff's incarceration in a
regular federal prison is too speculative and remote; because
Plaintiff's desire for more or different medical care
does not establish medical indifference, and Plaintiff has
not fully exhausted his administrative remedies; and because
Plaintiff cannot show that the equities favor the requested
injunction because of the public interest in allowing prisons
to function in accordance with the directions of prison
officials. ECF No. 134 at 5-11, 17, 21.
replies that this court has personal jurisdiction over the
BOP and can issue injunctive relief against it because it is
a party to this case and, according to Defendants, has
“sole discretion where and under what conditions a
federal prisoner is housed.” ECF No. 138 at 2-3.
Plaintiff also replies that his recent transfer to a Care
Level 3 facility does not prevent this court from awarding
the injunctive relief sought because Plaintiff could be
transferred to a different prison at any time and several of
his past wardens requested that he be transferred to a
medical center. Id. at 4. Plaintiff invokes
“traditional equitable power” to issue
injunctions without requiring exhaustion of administrative
remedies at each of the ten institutions where he has been
housed since this case was filed. Plaintiff argues that it
would be absurd to require him to exhaust administrative
remedies at each of those institutions where he previously
exhausted all remedies at FCI-Estill. Id. at 4-5.
Plaintiff replies that he is not questioning the medical
judgment of the BOP medical providers, but, rather, is
asserting that his care in the BOP has been inconsistent with
the directions of his outside medical providers and that
needed care has been unreasonably delayed. Id. at
Standard of Review
injunctions are extraordinary remedies involving the exercise
of very far-reaching power to be granted only sparingly and
in limited circumstances.” MicroStrategy Inc. v.
Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001)
(internal citations and quotation marks omitted). “A
plaintiff seeking a preliminary injunction must establish
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, 555 U.S. 7, 20
(2008). A plaintiff does not have an automatic right to a
preliminary injunction and such relief should be used
sparingly. The primary purpose of injunctive relief is to
preserve the status quo pending a resolution on the merits.
Injunctive relief which changes the status quo pending trial
is limited to cases where “the exigencies of the
situation demand such relief.” Wetzel v.
Edwards, 635 F.2d 283, 286 (4th Cir. 1980). “A
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter, 555 U.S. at 24.
In each case, courts must balance the competing claims of
injury and consider the effect on each party of granting or
withholding the requested relief. Id. The court must
pay particular regard for the public consequences of
employing the extraordinary remedy of injunction. Id.;
see also The Real Truth About Obama, Inc. v. F.E.C., 607
F.3d 355 (4th Cir. 2010) (reinstating court's previous
discussion of Winter's preliminary injunction
standards following remand from the United States Supreme
Jurisdiction over BOP for Injunctive Relief
initial matter, Defendants' assertion that this court is
without jurisdiction to consider Plaintiff's injunctive
relief claim against the BOP is incorrect. The BOP is an
agency of the United States, and Congress has waived
sovereign immunity for a federal agency such as BOP in
actions seeking nonmonetary relief. See Simmat v. U.S.
Bureau of Prisons, 413 F.3d 1225, 1238-39 (10th Cir.
2005) (holding sovereign immunity does not bar inmate from
suing the BOP for injunctive relief under 28 U.S.C. §
1331 for Eighth Amendment violations because the BOP is
agency within the meaning of the Administrative Procedures
Act, 5 U.S.C. §§ 551(a), 702). Defendants'
assertion that this court has no jurisdiction to direct the
BOP to house Plaintiff in any particular institution because
of the discretion that the BOP admittedly has over inmate
housing and medical care is overbroad. This court has
jurisdiction to consider whether the exercise of such
discretion comports with constitutional standards. None of
the case law cited by Defendants in support of their
lack-of-jurisdiction arguments even discusses jurisdictional
issues, much less hold that a federal court cannot consider a
constitutional violation claim relating to a prisoner's
living arrangements. See, e.g., McKune v.
Lile, 536 U.S. 24, 39 (2002) (self-incrimination claim
considered); Meachum v. Fano, 427 U.S. 215, 223-24
(1976) (due process right considered); Hayes v.
Thompson, 726 F.2d 1015, 1016-17 (4th Cir. 1984) (due
process right considered). Instead, each of those cases
involved the courts' review of the constitutionality of
prison regulations and discretionary activity. Had the courts
been without jurisdiction to do so, it seems that some
reference to alleged lack of jurisdiction would have been
made in the opinion. In fact, the Court in Meachum
specifically stated that “given a valid conviction, the
criminal defendant has been constitutionally deprived of his
liberty to the extent that the State may confine him and
subject him to the rules of its prison system so long as
the conditions of confinement do not otherwise violate the
Constitution.” Meachum v. Fano, 427 U.S.
at 224 (emphasis added). Thus, courts have jurisdiction to
consider whether the BOP's activities relating to
Plaintiff's various places of incarceration violated his
Eighth Amendment rights. Accordingly, the undersigned finds
that this court has subject matter jurisdiction to award
injunctive relief against the BOP if required.
Defendants contend that Plaintiff's Motion is moot and,
therefore, this court is without jurisdiction to consider it.
Defendants' inmate history document shows that Plaintiff
has been transferred to at least seven different institutions
(including the transfer locations) since this case was filed:
FCI-Estill, FCI-Edgefield, USP-Atlanta, FTC-Oklahoma,
FCI-Loretto, USP Canaan, and FCI-Butner. ECF No. 134-1. Ms.
Amy Jacobs of FCI-Butner lists numerous instances of medical
care and life-care assistance that Plaintiff has received
since his transfer to that institution. No. 134-3. Plaintiff
does not dispute the facts provided in the Jacobs Affidavit.
However, he continues to assert that the care and assistance
he receives is inadequate and inconsistent and that he
suffers severe pain when his medications are not properly
administered. Thus, while ...