The opinion of the court was delivered by: Terence P. Kemp United States Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff, Lonny Bristow, a state prisoner, claims in this 42 U.S.C. §1983 case that his physical safety has been jeopardized because he has been housed with other inmates who have made threats against him. He has now moved for a preliminary injunction which, if issued, would require that he be placed in protective custody and transferred to an institution other than the Southern Ohio Correctional Facility. After considering the defendant's response, Mr. Bristow's reply, and a number of other documents which he has filed relating to the motion for preliminary injunctive relief, it will be recommended that his motion be denied.
Both parties have submitted affidavits in support of their respective positions. The following facts appear from those affidavits. Although some of the facts are in dispute, it appears that the facts which are important to determine whether Mr. Bristow is entitled either to injunctive relief or a hearing on the question are uncontested.
The basis of Mr. Bristow's lawsuit is that, for years, he had been granted an institutional separation from two other inmates, inmates Reed and Hamilton. According to Mr. Bristow, he had testified against Mr. Hamilton in a criminal case, and Mr. Reed, like Mr. Hamilton, is a member of the Aryan Brotherhood, a prison gang. Mr. Reed had written a threatening letter to Mr. Bristow, and, of course, Mr. Hamilton had his own motives for retaliating against Mr. Bristow. However, despite this separation, after Mr. Bristow was returned to the SOCF - a move which was justified on the grounds that neither Mr. Hamilton or Mr. Reed were at that institution - Mr. Hamilton was then transferred to the same prison. As a result, Mr. Bristow contends that his personal safety is threatened and he seeks a transfer.
According to Mr. Bristow's motion, on October 21, 2008, he was confronted by another inmate, whom he knew only as "Frank White," about his lunch tray. Without provocation, this inmate punched Mr. Bristow, probably breaking his nose. He subsequently made comments which led Mr. Bristow to believe that the attack occurred because Mr. Bristow had testified against inmate Hamilton in the past.
After this incident, Mr. Bristow was returned to the general population. On October 30, 2008, he was attacked a second time, by an inmate named Walenciej. As a result of that attack, Mr. Bristow was placed into Protective Control. Although a prison committee recommended that he be returned to the general population once again with a separation order, the warden of his institution has determined to keep him segregated from the general population. For some reason which does not appear on the record, although Mr. Bristow was originally placed in Protective Control, he has now been moved to a segregation unit. Nevertheless, he is not in the general population, and the defendant's memorandum argues, in part, that his motion is moot because there is no intent to return him to that population.
None of the above facts appear seriously to be disputed. The dispute between the parties centers on whether either of these attacks were related to inmates Reed and Hamilton. Originally, Mr. Bristow signed documents suggesting that he did not believe such a relationship existed. He had also consented to being returned to the general population after the first assault and indicated to the prison officials that he did not believe that he was in danger. Although Mr. Bristow does not deny that he believed that at least one of these assaults was unrelated to his prior court testimony, he contends, based upon things which occurred afterward, that it is now clear that both of these assaults occurred at the instigation of either inmate Reed or inmate Hamilton. For purposes of ruling upon his motion for injunctive relief, the Court will assume that his version of the facts is correct.
The Court is required to weigh four factors in determining whether a party is entitled to a preliminary injunction under Fed. R. Civ. P. 65(a). Those factors are:
(1) the likelihood that the party seeking the injunction will succeed on the merits of the claim; (2) the extent to which the party seeking the injunction will be injured unless relief is granted, focusing particularly on the possibility of irreparable injury; (3) whether the injunction, if issued, will cause substantial harm to others; and (4) whether issuance of the injunction is in the public interest. See Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994). No one factor is dispositive. Rather, these four factors must be balanced in determining whether preliminary injunctive relief should issue. In re Delorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). With these standards in mind, the Court now reviews the facts of record to determine whether preliminary injunctive relief is appropriate.
Since the United States Supreme Court decided Farmer v. Brennan, 511 U.S. 825, 839 (1994), the contours of a claim such as that presented by Mr. Bristow in this case are well-known. Prison officials do have a constitutional duty to protect inmates from assaults by other inmates. However, that duty is breached only when an inmate is at substantial risk of being assaulted, and prison officials demonstrate studied indifference to the risk. Id.; see also Hamilton v. Leavy, 117 F.3d 742 (3d Cir. 1997). In other words, for the Eighth Amendment to be violated, prison officials must know and disregard a substantial risk of harm to the inmate in question. An inmate need not demonstrate that he or she has been assaulted in order to show that there is a substantial risk of a future assault, but the burden lies with the inmate to demonstrate that risk. See Lovell v. Brennan, 728 F.2d 560 (1st Cir. 1984). Random acts of violence committed by other prisoners under circumstances where prison officials cannot anticipate such acts ...