Opinion
2:18-cv-1280
07-31-2019
BLAINE KOBY GHOLSON, Plaintiff, v. BRADLEY J. SHEEDER, et al., Defendants.
MEMORANDUM ORDER
This prisoner civil rights action was received by the Clerk of Court on September 21, 2018, and was referred to a United States Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court. On June 4, 2019, Plaintiff, who is proceeding pro se and currently incarcerated at SCI Houtzdale, filed a Motion for Preliminary Injunction and Restraining Order. (ECF No. 32). At that time, he was in Administrative Custody and Z Code (single cell) status at SCI Houtzdale. In his Motion, he requests that the Court enter an order directing that he be permanently granted that status because various prison officials are engaged in a plot to have him killed for purposes of collecting the proceeds on a fraudulent life insurance policy. Defendants filed a response in opposition to Plaintiff's motion. (ECF No. 37).
On July 8, 2019, the Magistrate Judge filed a Report and Recommendation (ECF No. 40) recommending that Plaintiff's Motion be denied because his allegations of a plot by prison officials against his life do not appear to be ground in reason or evidence and, therefore, he does not demonstrate a reasonable probability of success on the merits. In addition, the Magistrate Judge explained that Plaintiff does not identify any immediate, non-speculative threat to his safety, and she observed that he offered no evidence that there is any impending change to his custody status.
On July 22, 2019, Plaintiff filed Objections to the Magistrate Judge's Report and Recommendation. (ECF No. 43). He attached to his Objections documents that show that, on July 3, 2019, SCI Houtzdale prison officials informed him that his Administrative Custody status was being removed and he was cleared to be released into the general population. (ECF No. 43-1 at 1). Because he refused to go, he received a sanction of 30 days in Disciplinary Custody. (ECF Nos. 43-2, 43-3).
Under 28 U.S.C. § 636(b)(1) and Rule 72(b)(3) of the Federal Rules of Civil Procedure, the District Judge must conduct a de novo review of any portion of the Report and Recommendation to which objection is made. They provide that a District Judge may accept, reject or modify, in whole or in part, the Report and Recommendation prepared by the Magistrate Judge.
Plaintiff's Objections do not undermine the recommendation of the Magistrate Judge. Although SCI Houtzdale prison officials recently notified him that he was cleared to be released into the general population, he has refused to go and, as a result, was placed in Disciplinary Custody. This is standard operating procedure for Plaintiff, who admits "I have been housed alone since 2016 because I've continuously refused cellmates and refused to go to General Population, consequently I've received numerous misconducts and disciplinary sanctions." (ECF No. 43 at 2). Additionally, nothing that Plaintiff presented to the Court in his Motion and Objections satisfy his burden of demonstrating a reasonable probability of success on the merits. And, his contention that he is at risk of injury if he is not granted permanent Administrative Custody and Z code status (which is premised on his claim that there is an incentive to kill him to collect on the fraudulent life insurance policy), is too speculative and remote to demonstrate that he is facing irreparable harm if denied injunctive relief.
Accordingly, after de novo review of the pleadings and documents in the case, together with the Report and Recommendation and Plaintiff's Objections thereto, the following order is entered:
AND NOW, this 31st day of July, 2019, it is ORDERED that Plaintiff's Motion for Preliminary Injunction and Restraining Order (ECF No. 32) is DENIED. It is further ORDERED that the Court adopts the Magistrate Judge's Report and Recommendation, as modified herein to address the change-of-custody-status documents Plaintiff attached to his Objections, as the Opinion of the Court.
BY THE COURT: Dated: July 31, 2019
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge cc: All Registered ECF Counsel and
via first-class mail to Plaintiff at his
address of record