White v. Duncil, et al
MEMORANDUM OPINION AND ORDER: the Court adopts the 112 Proposed Findings and Recommendations by Magistrate Judge, and ORDERS that Plaintiff's 104 Motion to Reopen is DENIED and that Plaintiff's 105 Motion/Request for a Permanent Order is DENIED. Signed by Judge David A. Faber on 9/20/2012. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
JESS W. WHITE,
Civil Action No. 5:98-01212
WILLIAM DUNCIL, et al.
MEMORANDUM OPINION AND ORDER
Pending before the court is the plaintiff’s pro se Motion
to Reopen Action (Doc. No. 104) and Request for a Permanent
Order (Doc. No. 105).
By Standing Order, this action was
referred to United States Magistrate Judge Mary E. Stanley for
submission of findings and recommendation regarding disposition
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B).
Stanley submitted to the court her Findings and Recommendation
on March 13, 2012, in which she recommended that the court deny
plaintiff’s Motion to Reopen Action and deny the Request for
(Doc. No. 112).
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Stanley’s Findings and Recommendation.
The failure of any party
to file such objections within the time allotted constitutes a
waiver of such party’s right to a de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).
Plaintiff timely filed his objections on March 26, 2012.
The court hereby OVERRULES plaintiff’s objections, ADOPTS Judge
Stanley’s Findings and Recommendation, DENIES plaintiff’s Motion
to Reopen case and DENIES the plaintiff’s Request for a
Factual and Procedural Background
Mr. White, plaintiff, is a long-time protective custody
inmate (Special Management Status).
(Doc. No. 91).
24, 1999, a hearing was held on the plaintiff’s Motion for a
Temporary Restraining Order concerning his possible placement in
the mainline population at the Mount Olive Correctional Complex
(“MOCC”) following his participation in proceedings related to
the 1986 riot at the West Virginia Penitentiary in Moundsville,
West Virginia. On August 27, 1999, Judge Stanley entered an
Order memorializing a purported agreement between the parties
that included the following language:
2. The DOC will transfer Plaintiff to NRJCF [Northern
Regional Jail and Correctional Facility] or will
maintain Plaintiff in segregation at MOCC until
further order of the court, but in no event will the
DOC place Plaintiff in the mainline population of
(Doc. No. 16).
Plaintiff alleges that he suffered a stroke on
November 25, 2011, and was admitted to the Ohio Valley Medical
(Doc. No. 104, pp.1-2).
He argues that his current
housing situation is in violation of the previous Order by Judge
Plaintiff filed the instant motions after plaintiff had
been transferred to MOCC for a period between November 29, 2011
and December 14, 2011.
According to plaintiff, he was housed in
the medical infirmary at MOCC between November 29, 2011, and
December 7, 2011.
He was placed in a segregation unit at MOCC
until December 14, 2011, when he was transferred to the NRJCF.
The plaintiff is presently being housed at the NRJCF.
The plaintiff seeks an Order “barring the department of
corrections from housing White in MOCC, and/or any State
Facility where any of the defendants are housed that White gave
statements against” and that the court issue a permanent order
barring him from being housed at MOCC.1
Motion to Reopen Action.
Both the Motion to Reopen Action and Request for Permanent
Order contain complaints about the plaintiff’s conditions of
confinement while housed at MOCC in December of 2011. Because
these complaints are unrelated to the plaintiff’s request for
the court to readdress the order concerning where he should be
housed for protective custody reasons, on January 3, 2012, the
Honorable R. Clarke VanDervort, United States Magistrate Judge,
directed that a separate civil action be opened to address those
allegations. The separate civil action, Case No. 2:12-cv-00001,
is pending before the Honorable Thomas E. Johnston, and will be
addressed in a separate document.
Magistrate Judge Stanley found that there was no “breach”
of the agreement between the plaintiff and the Division of
Corrections, as memorialized in Judge Stanley’s August 27, 1999
That Order stated that the plaintiff shall be housed at
the NRJCF or in a segregation unit at MOCC, but not in the
mainline population at MOCC.
There is no evidence that any
action contrary to the Order has been taken.
During the time
period that the plaintiff was housed at MOCC, he was either in
the infirmary, or he was housed in a segregation unit in
accordance with the court’s prior Order.
He has not shown that
he was ever housed in the mainline population.
part of the plaintiff’s objection that deals with this finding
is hereby OVERRULED.
Plaintiff objects to the “Magistrate Decision and
Opinion As As [sic] it is Contrary to and Unreasonable
Application of Clearly Established Law.”
(Doc. No. 113, p. 2).
Plaintiff has also requested an Order permanently barring
his incarceration at MOCC.
Magistrate Judge Stanley held that
because there is no constitutional right to protective custody,
and an inmate has no justifiable expectation that he will be
incarcerated in any particular correctional facility, that this
petition lacks merit.
See Adams v. Rice, 40 F.3d 72, 75 (4th
Cir. 1994); Meachum v. Fano, 427 U.S. 215 (1976); and Montanye
v. Haymes, 427 U.S. 236 (1976)(Where the Court held that an
intrastate transfer from one prison facility to another does not
directly implicate the Due Process clause of the Fourteenth
In his objection, the plaintiff states that even if he does
not have a right to relief under the due process clause, he has
a right to be safe from harm.
Plaintiff states that he is at
risk of harm in his current situation.
However, the plaintiff
has not shown that the previous Order stating the conditions of
his housing is in any way defective.
It is certainly true that
“[p]rison officials have a duty. . . to protect prisoners from
violence at the hands of other prisoners.”
511 U.S. 825, 833 (1994).
Farmer v. Brennan,
However, the plaintiff has not shown
any situation where the prison officials have not met that duty
in regards to his incarceration.
Instead, he does not dispute
that they have honored the previous Order consistently.
those reasons, the court OVERRULES the plaintiff’s second
For the reasons stated above, the court ADOPTS Magistrate
Judge Stanley’s Findings and Recommendations and ORDERS as
1) The Plaintiff’s Objections to Magistrate Judge Stanley’s
Findings and Recommendations (Doc. No. 113) are
2) The Plaintiff’s Motion to Reopen Action (Doc. No. 104) is
3) The Plaintiff’s Request for a Permanent Order is DENIED.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to plaintiff, pro se, and counsel of record.
IT IS SO ORDERED on this 20th day of September, 2012.
David A. Faber
Senior United States District Judge
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