Wulffers v. Graham, Jr. et al
MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 12/8/2017. (c/m 12/8/2017 tds, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FORT HE DISTRICT OF MARYLAND
THEODORE WILLIAM WULFFERS,
WARDEN RICHARD GRAHAM, JR., et al..
CLERK, U.S DISTRICT COURT
DISTRICT OF MARYlAND
Civil Action No. PWG-I 7-3269
In this civil rights action, Plaintiff Theodore Wulffers alleges that prison officials have
failed to act after being informed that Plaintiff has been subject to assaults and threats by gangaffiliated inmates. ECF No. I. He titled his Complaint as a "Request for temporary restraining
order/And or Injunctive relief/And or Declaratory relief/Appropriate
relief under 42 U.S.C.
1983," id. at 1, and among other things, Plaintiff seeks to be immediately
administrative segregation for his safety and to be transferred from his current correctional
facility, id. at 13. On December 1,2017, Plaintiff filed a Motion for Protective Order. ECF No.
5. For the reasons that follow, the Court grants the Motion to the extent that Plaintiff seeks a
order requiring the prison to house him in protective
administrative segregation, until such time as the matter of Plaintiffs requested injunctive relief
can be fully briefed and resolved or upon the expiration of 14 days, whichever is earlier.
In 2012, Plaintiff informed correctional officers at Maryland Correctional InstitutionHagerstown ("MCI-H") that he faced threats 'from members of a particular Security Threat
Comp!. 5. Plaintiff was placed in administrative segregation for his protection
before being transferred to a different institution for his "safety and welfare."
[d. at 5-6.
2015, Plaintiff was sent back to MCI-H; even though he had informed correctional officers of the
safety risk of being placed near members of the STO. Jd at 6. In 2016, members of the STO
assaulted Plaintiff, resulting in serious injuries and treatment at a hospital. Jd at 6-7.
At some point, Plaintiff was transferred to Western Correctional Institution ("WCI"). In
October 2017, Plaintiff told WCI correctional officers that his
life was in danger, that if he stayed on compound or prison he would be stabbed
or worse, ... [and that the STO members] in building 3 and compound found out
who [he] was and told [him] that [he] had to pay $100 a month to stay on
compound or else they would fly me out in a body bag[.] [P]laintiff explained in
detail his history and that [the STO members] had a hit on him and hit him once
already. [P]laintiff asked to be placed on admin[istrative segregation] for safety
Jd at 9. The officers refused to take action and told Plaintiff to return to his housing assignment
(which was presumably in Building 3, where Plaintiff faced the STO threat).
refused and was given a disciplinary "ticket" for refusing housing and disobeying a direct order.
Jd Following his October 16, 2017 hearing on the disciplinary ticket, Plaintiff was sentenced to
IS days of "lockup." Jd at 10.
On October 23, 2017, prior to the expiration of his IS-day sentence, Plaintiff was told
that he would be released from lockup and returned to Building 3. Jd. He again expressed
concerns for his safety, asked to be placed in administrative segregation, and was given a
disciplinary ticket for refusing housing. Jd. Following a hearing, Plaintiff was sentenced to 45
days of lockup for this violation. Jd at II.
Plaintiff filed this civil rights action on November 3, 2017. Jd
Among other claims,
Plaintiff alleges that correctional officers are deliberately indifferent to his safety, and he seeks
permanent injunctive relief in the form of a placement in administrative segregation and a prison
transfer. Jd. at 13-14. On December 6, 2017, the Court ordered Defendants to show cause why
Plaintiffs requested injunctive relief should not be granted. ECF NO.6.
On December 1,2017, Plaintiff filed a Motion for Protective Order. ECF NO.5.
Motion is broadly framed and includes some generic assertions that correctional officers have
history of retaliating
against inmates who file complaints,
without alleging any specific
retaliatory acts that Plaintiff has been subject to after filing this action. See, e.g., id. at 1-2. In
this Motion he seeks protection from the vague possibility of retaliation by the correctional
officers, unlike in his Complaint in which he seeks immediate protection from other inmates for
While the Motion does not meet the requirements for immediate injunctive relief, in the
cover letter that accompanied it, ECF No.3,
Plaintiff stresses the urgency of his requests for
injunctive relief in his Complaint. Indeed, by my calculations, Plaintiff could be returned to the
general population as soon as this Sunday, December 10, 2017. Therefore, I will construe the
Complaint to incorporate a motion for a TRO and order temporary injunctive relief while
Plaintiffs request for preliminary injunctive relief is briefed and resolved.
The purpose of a TRO or a preliminary injunction is to "protect the status quo and to
prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court's
ability to render a meaningful judgment on the merits."
In re Microsoft Corp. Antitrusl Litig.,
333 F.3d 517, 525 (4th Cir. 2003). A preliminary injunction is distinguished from a TRO only
by the difference in notice to the nonmoving party and by the duration of the injunction.
Dep'l of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir. 2006) (comparing Fed.
R. Civ. P. 65(a) with Fed. R. Civ. P. 65(b)).
A preliminary injunction cannot issue without
notice to the nonmovant. See Fed. R. Civ. P. 65(a)(I).
As the show cause order was only
recently issued and Defendants have not been given a meaningful chance to respond to Plaintiffs
requests for injunctive relief, Plaintiff is only eligible for a TRO at the present juncture.
"To obtain a TRO, the plaintiff must "establish that (I] he is likely to succeed on the
merits,  he is likely to suffer irreparable harm in the absence of preliminary relief,  the
balance of equities tips in his favor, and  an injunction is in the public interest." Winter v.
Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008); see Dewhurst v. Century Aluminum
Co., 649 F.3d 287, 290 (4th <:;ir. 2011).
The plaintiff must satisfY each requirement as
articulated. Real Truth About Obama, Inc. v. Fed. Election Comm 'n, 575 F.3d 342, 347 (4th Cir.
2009). As a TRO is "an extraordinary remedy," it "may only be awarded upon a clear showing
that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22.
The Court concludes that Plaintiff has satisfied these requirements with regard to his
request for a TRO to have him placed on administrative segregation or in protective custody.
First, Plaintiff alleges that he has notified prison officials on multiple occasions of the ongoing
threat that he faces from the STG members, yet they have refused to act or refer his complaints
to supervisory officers. Compl. 13. Based on the materials presently before the Court, Plaintiff
has a meritorious claim of deliberate indifference to his safety. Second, Plaintiffs
also suggest that he is likely to suffer irreparable harm if no action is taken to protect him from
the STG members.
He has already been seriously injured at least once, and he reports that the
STG members have placed a "hit" on him, suggesting that he faces the risk of death or serious
injury from a number of other prisoners.
Further, the balance of equities weighs In Plaintiffs
The potential harm to
I With regard to his Motion for Protective Order, however, he has not shown that he is likely to suffer irreparable
harm, as he has not articulated any specific threats or retaliatory action taken since he filed his Complaint.
Plaintiff is serious and unavoidable by Plaintiff acting on his own.2
Although the Court
acknowledges that prison management issues like housing placement are ordinarily best left to
prison officials rather than the Court, a TRO concerning the protective placement of a single
inmate does not pose a significant burden on the Defendants or their prison management power.
Any such burden is slight when compared with the threat of death or serious injury that Plaintiff
faces if prison officials fail to act. Finally, although some might argue that the public interest in
a single inmate's safety is slight, a TROis in the public interest, as it suggests that prisoners who
alert authorities to safety risks will be protected. There certainly is a public interest in ensuring
that prisoners are not knowingly subjected to mortal danger.
under Fed. R. Civ. P. 65
Federal Rule of Civil Procedure 65(b), concerning TROs, states:
(I) Issuing Without Notice. The court may issue a temporary restraining order
without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
(2) Contents; Expiration. Every temporary restraining order issued without notice
must state the date and hour it was issued; describe the injury and state why it is
irreparable; state why the order was issued without notice; and be promptly filed
in the clerk's office and entered in the record. The order expires at the time after
entry-not to exceed 14 days-that the court sets, unless before that time the
court, for good cause, extends it for a like period or the adverse party consents to
a longer extension. The reasons for an extension must be entered in the record.
Although the Court issued a show cause order on December 6, 2017, ECF NO.6, with a
2 Arguably, Plaintiff can avoid the harm by refusing housing or otherwise violating prison rules, resulting in
disciplinary violations and placement in "lockup," as he has done over the past few months. However, it would be
fundamentally unfair to require that Plaintiff accrue disciplinary violations-which,
as Plaintiff notes, PI.'s Mot. 2,
could detrimentally impact his release date-and
suffer curtailed privileges to keep himself safe simply because
prison officials refuse to act.
response due December 15, 2017, the Court is not satisfied that this is sufficient to constitute
notice that places Plaintiffs request beyond Rule 65(b)'s requirements. See Us. Dep't of Labor
v. Wolf Run Mining Co., 452 F.3d 275, 283 (4th Cir. 2006) ("The notice requirement thus is
more substantive than technical, requiring that a defendant be given 'a fair opportunity to oppose
the application,' as distinct from a specified number of hours or days.").
As to Fed. R. Civ. P. 65(b)(l)(A), the Court notes that Plaintiff has not filed an affidavit
or verified complaint.
However, Plaintiff is proceeding pro se3 and could be returned to the
general population before the Court is able to alert him to this requirement and receive his
response. Accordingly, the Court will impose the TRO subject to Plaintiff filing, immediately
upon receipt of this memorandum opinion and order, an affidavit affirming the veracity of the
facts contained in the Complaint. Regarding Fed. R. Civ. P. 65(b)(l)(B), Plaintiff does not have
an attorney, and this Court does not require prisoners to serve filings on opposing parties. I also
note that Defense counsel has entered her appearance, ECF No.7,
and thus has notice of
Plaintiffs Complaint, which appears on the docket.
Turning to Fed. R. Civ. P. 65(b)(2), the Court incorporates its discussion from the
preceding section about Plaintiffs
risk of death or serious injury at the hands of the STG
members if Plaintiff is returned to general population. Such injuries are obviously irreparable, as
the Court cannot fashion an adequate remedy to cure the harm resulting from such injuries. This
Memorandum Opinion and accompanying Order are being issued without meaningful notice and
time to respond because of Plaintiffs impending release from disciplinary segregation and return
to general population.
Based on the information presently available to this Court, said release is
likely to occur on or around December 10, 2017, which does not allow for sufficient time for full
briefing and consideration of the issue. The Order shall expire following the earlier of 14 days or
His Motion to Appoint Counsel, ECF NO.4, remains pending.
full briefing and resolution on a preliminary injunction to the same effect.
Accordingly, the Court shall grant Plaintiffs request for a TRQ to the extent that he seeks
a TRQ placing him in protective custody or administrative segregation.
A separate order
Pau W. Grimm
United States District Judge
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