Lipscomb v. Whitley

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION DANIEL T. LIPSCOMB, ) Plaintiff, ) Civil Action No. 7:20cv00411 ) v. ) ) SUPERINTENDANT JAMES F. ) WHITLEY, et al., ) By: Elizabeth K. Dillon Defendants. ) United States District Judge MEMORANDUM OPINION Plaintiff, Daniel T. Lipscomb, has filed numerous motions that the court has construed and docketed as motions seeking preliminary injunctive relief or a temporary restraining order.

Lipscomb has also filed objections to the defendants’ opposition to his requests for interlocutory relief. After review of the amended complaint and these motions, the court concludes that these motions must be denied because they concern matters unrelated to the claims in the underlying lawsuit and have been mooted by Lipscomb’s transfer.

I.

The amended complaint alleges that officials at the Northwestern Regional Adult Detention Center (“NRADC”) maintained Lipscomb for some weeks in segregated confinement without due process under harsh living conditions. The parties have filed cross motions for summary judgment on these issues that will be separately addressed.

Lipscomb’s many motions for interlocutory injunctive relief, however, do not concern his segregation claims. In his first motion, Lipscomb wants the court to order Captain Custer, Kim Benson, and other NRADC employees to stop “opening of outgoing Legal Mail and opening of outgoing mail addressed from [Lipscomb] outside [his] presence . . . [d]ue to Retaliation [for his] filing this said lawsuit against [NRADC].” Dkt. No. 47. Lipscomb states that he “has written to ACLU, NAACP etc. about what’s going on here at NRADC and none of the letters have made it to the Businesses.”1 Id. On April 26, 2021, the court docketed a second “motion for injunction relief” from Lipscomb, Dkt. No. 67. This motion alleges that on April 19, 2021, Lipscomb “received a letter returned to sender that [he] wrote to his . . . Attorney, Envelope was marked Legal Mail, Attorney at Law[.] NRADC officer S. Bain opened the letter and scanned [it] onto the Inmate Tablet in violation of Attorney-Client Privilege.” Dkt. No. 67. Lipscomb asserts, “This is also done out of Retaliation for filing this lawsuit.” Id. at 2.

In a third motion for interlocutory injunctive relief, Lipscomb alleges that “[o]n April 21, 22, and 25, 2021, his criminal attorney called the jail to speak to Lipscomb. Each time, an officer told the attorney that Lipscomb was not available to speak to him. Lipscomb denies that he was unavailable on those dates. He asserts, “This is due to Retaliation for [my] lawsuit.”

Mot. Prelim. Inj. 1, Dkt. No. 70.

Lipscomb later filed a motion seeking a temporary restraining order after Custer transferred him to a “big housing unit,” allegedly because of his complaints that his attorney could not reach him by telephone. Mot. Temp. Restr. Ord. 1, Dkt. No. 72. Lipscomb alleges that gang members in the larger housing units have threatened to harm him in the past and that he should be housed in protective custody.

In Lipscomb’s fourth motion for interlocutory relief, Dkt. No. 76, he complains that after his transfer to a bigger housing unit, he lost many privileges (such as out-of-cell time, television and radio time, and outside recreation). When he complained, he was told that an investigation into appropriate housing for him was ongoing. Meanwhile, Lipscomb asserts that the loss of privileges was retaliation for his lawsuit.2 In mid-May 2021, officials transferred Lipscomb to the Rappahannock Shenandoah Warren Regional Jail (“RSWRJ”). Lipscomb immediately filed more motions for interlocutory relief, asking the court to order that he be transferred back to NRADC. He complains that he has no criminal charges pending in the area where RSWRJ is located, that he is confined under a higher level of security at the new facility, and that he does not have access to his legal paperwork related to this civil action. He also asserts that the transfer occurred without due process protections and that he cannot visit with his attorney or his family at the new facility.

II.

The party seeking preliminary injunctive relief must state facts clearly 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. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Each of these four factors must be satisfied. Id. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with the [Supreme Court’s] characterization of injunctive

Second, now that Lipscomb is no longer housed under the conditions of which he complained while at NRADC, his motions for interlocutory injunctive relief to alleviate those conditions must be dismissed as moot. “[A]s a general rule, a prisoner’s transfer or release from a particular prison moots his claims for injunctive . . . relief with respect to his incarceration there.” Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009); Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir. 2007) (“Once an inmate is removed from the environment in which he is subjected to the challenged policy or practice, absent a claim for damages, he no longer has a legally cognizable interest in a judicial decision on the merits of his claim.”). Lipscomb has not moved to amend his pleading to add claims of retaliation, interference with legal mail or attorney Lipscomb has also requested a temporary restraining order (“TRO”). TROs are issued only rarely, when the movant proves that he will suffer injury if relief is not granted before the adverse party could be notified and have opportunity to respond. See Fed. R. Civ. P. 65(b). Such an order would only last until such time as a hearing on a preliminary injunction could be arranged. As it is clear from the outset that Lipscomb is not entitled to a preliminary injunction, the court finds no basis upon which to grant him a TRO. calls, or transfer to allegedly unsafe conditions in the larger housing unit while he was at NRADC. Moreover, these allegations concern events that occurred after he filed the lawsuit.

Therefore, he could not have complied with the requirement to exhaust administrative remedies, see 42 U.S.C. § 1997e(a), as to these claims before bringing the suit. Moreover, until an inmate has fully advised jail officials of his issues through the available grievance procedure and appeals, to permit them an opportunity to alleviate his concerns, it is doubtful that he can prove how he will suffer irreparable harm in the absence of court intervention, one of the Winter factors.

Third, the court also cannot find that Lipscomb has met the first Winter factor.

Specifically, the court cannot find from his allegations any likelihood of success on the merits of his claims of retaliatory interference with his mail or his telephone calls from his attorney or retaliatory housing reassignment decisions. Lipscomb states no facts showing that the failure of two outgoing letters to reach their addressees occurred because any jail official interfered with those mailings, as opposed to some other cause, such as the widely reported problems with mail delivery through the United States Postal Service.4 Thus, Lipscomb’s accusations that jail officials somehow prevented his letters from being delivered to retaliate against him are based on nothing more than speculation. Similarly, he states no facts supporting his bald declarations that Custer or any other jail official took actions purposely directed to preventing Lipscomb from receiving particular calls from his attorney or to placing him in a housing assignment where he was in danger of harm from specific other inmates. Lipscomb’s merely conclusory allegations of retaliation are not sufficient to state a prima facie claim under § 1983. See Adams v. Rice, 40 F.3d 72, 74–75 (4th Cir. 1994) (finding § 1983 retaliation claim was properly dismissed where See, e.g., https://www.npr.org/2021/01/22/959273022/theres-no-end-in-sight-mail-delivery-delays- continue-across-the-country (last visited July 2, 2021). plaintiff provided only conclusory assertion of retaliation with no facts to show alleged retaliatory act was connected to exercise of constitutional right). Moreover, Lipscomb has no constitutionally protected right to be housed in any particular jail facility or to receive procedural protections before a transfer to a prison with more restrictive conditions. Olim v. Wakinekona, 461 U.S. 238, 245 (1983) (finding no liberty interest in avoiding interstate prison transfer); Meachum v. Fano, 427 U.S. 215, 223-224 (1976) (finding that inmates had no liberty interest in avoiding transfer from medium to maximum security prison or in being transferred only after proven, serious misconduct).5 For the reasons stated, the court cannot find that Lipscomb is entitled to the extraordinary, interlocutory remedy he is seeking and will deny his motions. An appropriate order will enter this day.

Entered: July 8, 2021.

/s/ Elizabeth K. Dillon Elizabeth K. Dillon United States District Judge