UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Brian Woodburn

v. Civil No. 06-cv-260-PB

Commissioner, NH Dept.

of Corrections, et al.

REPORT AND RECOMMENDATION

Pro se prisoner Brian Woodburn (“Woodburn”) filed a

complaint pursuant to 42 U.S.C. § 1983, claiming several of his

constitutional rights were violated when the New Hampshire State

Prison (“NHSP”) transferred him to Rhode Island in September

2005, due to his pattern of aggressive institutional behavior and

resulting need for protection. Ordinarily, before any action is

taken on a pro se complaint, it is subject to preliminary review

to determine, among other things, whether a claim for relief has

been stated. See 28 U.S.C. § 1915A; see also U.S. District Court

for the District of New Hampshire Local Rule 4.3(d)(2). In this

case, however, Woodburn moved for preliminary injunctive relief

(doc. no. 11), seeking an immediate transfer back to the NHSP to

prevent the alleged irreparable harm his continued placement

there would cause. A hearing was held on October 19, 2006, to

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1“Mere injuries, however substantial, in terms of money,

time and energy necessarily expended in the absence of a stay,

are not enough. The possibility that adequate compensatory or

other corrective relief will be available at a later date, in the

ordinary course of litigation, weighs heavily against a claim of

irreparable harm.” Acierno,40 F.3d at 653. 

2

determine whether the preliminary injunction should issue. After

carefully considering the claims and evidence presented, I

recommend Woodburn’s motion for a preliminary injunction be

denied and his complaint be dismissed.

Analysis

1. Standard of Review

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

the matter. Such a situation arises when some harm from the

challenged conduct could not be adequately redressed with

traditional legal or equitable remedies following a trial. See

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F,3d 12, 18

(1st Cir. 1996) (finding irreparable harm where legal remedies

are inadequate); see also Acierno v. New Castle County, 40 F.3d

645, 653 (3rd Cir. 1994) (explaining irreparable harm and its

effect on the contours of preliminary injunctive relief)1. 

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Absent irreparable harm, there is no need for a preliminary

injunction.

The need to prevent irreparable harm, however, exists only

to enable the court to render a meaningful disposition on the

underlying dispute. See CMM Cable Rep., Inc. v. Ocean Coast

Prop., Inc., 48 F.3d 618, 620-1 (1st Cir. 1995)(explaining the

purpose of enjoining certain conduct as being to “preserve the

‘status quo’ . . . to permit the court more effectively to remedy

discerned wrongs”); see also Becton v. Thomas, 48 F. Supp. 2d

747, 753 (W.D. Tenn. 1999) (“‘The purpose of a preliminary

injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on

the merits.’” (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921,

925 (6th Cir. 1978)). The court’s focus, therefore, must always

be on the underlying merits of the case, and what needs to be

done to ensure that the dispute can be meaningfully resolved.

A preliminary injunction cannot issue unless the moving

party satisfies four factors which establish its need for such

relief. See Esso Standard Oil Co. (Puerto Rico) v. MonroigZavas, 445 F.3d 13, 17-18 (1st Cir. 2006) (discussing the

requisite showing to obtain a preliminary injunction); see also

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Ross-Simons of Warwick, Inc., 102 F.3d at 18-19 (explaining the

burden of proof for a preliminary injunction). Those factors

are: “(1) the likelihood of success on the merits; (2) the

potential for irreparable harm [to the movant] if the injunction

is denied; (3) the balance of relevant impositions, i.e., the

hardship to the nonmovant if enjoined as contrasted with the

hardship to the movant if no injunction issues; and (4) the

effect (if any) of the court’s ruling on the public interest.” 

Esso Standard Oil Co., 445 F.3d at 18. If the plaintiff is not

able to show a likelihood of success on the merits, the remaining

factors “become matters of idle curiosity,” id., insufficient to

carry the weight of this extraordinary relief on their own. 

See id. (the “sine qua non of the four-part inquiry is likelihood

of success on the merits”). Yet, “the predicted harm and the

likelihood of success on the merits must be juxtaposed and

weighed in tandem.” Ross-Simons of Warwick, Inc., 102 F.3d at

19. 

Since Woodburn must demonstrate his likelihood of success on

the merits, the preliminary issue of whether he has stated a

claim upon which relief may be granted arises. Under this

Court’s local rules, when an incarcerated plaintiff commences an

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action pro se and in forma pauperis, as Woodburn did, the

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation determining whether the

complaint or any portion thereof should be dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state 

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998). Additionally, all

plaintiff’s factual assertions and inferences reasonably drawn

therefrom must be accepted as true. See Aulson v. Blanchard, 83

F.3d 1, 3 (1st Cir. 1996) (stating the “failure to state a claim”

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standard of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Dir. of C.I.A., 843 F.2d 46, 49

(1st Cir. 1988).

2. Background

The salient background facts are undisputed. Woodburn is a

self-avowed white supremacist, who has a lengthy record of

disciplinary reports stemming from his aggressive behavior while

incarcerated. He was transferred from the New Hampshire

Department of Corrections’ Northern Correctional Facility in

Berlin, New Hampshire to the NHSP because of his difficult

behavior and resultant need for increased security status within

the prison. Woodburn’s pattern of obstreperous, malicious

behavior continued at the NHSP. In late November 2003, he

instigated, but lost, a fight with another inmate, Ramon

Guerrero, who is a member of the Latino gang “Latin Gangsta

Disciples” (“LGD” also known as “G”). On December 2, 2003,

Woodburn retaliated by dowsing Guerrero with a boiling liquid

that caused Guerrero to be hospitalized for more than a week to

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2Woodburn denies ever fighting with Guerrero; however, there

was credible evidence proffered at the hearing to substantiate

this version of the two incidents. By contrast, and as explained

further on in this opinion, I found Woodburn not to be credible. 

7

treat second and third degree burns.2 Woodburn then became the

target of threats by Latino gangs within the prison, specifically

the “Gs,” which prison staff believed were credible. In December

2003, therefore, for disciplinary and protective reasons,

Woodburn was moved into the Secure Housing Unit (“SHU”), where he

remained, with one brief respite in January 2005, until his

transfer to Rhode Island in September 2005. The transfer was

made because NHSP officials had determined Woodburn could not be

housed safely at their facility and believed he would benefit

from a “fresh start” in a new place.

The parties dispute the degree of protection Woodburn needed

at NHSP. Woodburn requested several times to sign a “waiver”

that would enable him to be transferred to the less secure “Close

Custody Unit.” He argued gang members should have been moved

into SHU rather than he, and submitted multiple requests for

review of his custody status, particularly compared to that of

LGD members. Woodburn contends his transfer to Rhode Island was

retaliatory, in response to his filing a suit against the prison,

and that the purported protection concerns were only a pretext. 

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3Woodburn filed both an original complaint (doc. no. 1) and

an amended complaint (doc. no. 6), which are being considered

jointly as his complaint in this preliminary review.

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Woodburn now asserts that the transfer has caused him

irreparable harm, because his status as a “protective custody”

inmate has stigmatized him as either a rat or a bully, neither of

which are identities received well by an inmate population. 

Woodburn alleges he has been verbally abused and physically

threatened by other inmates in Rhode Island, but that he has not

reported the problems to avoid placement in protective housing

again. Since being transferred, Woodburn has been held in two

other locations, including punitive segregation for fighting with

another inmate, before his current placement in the High Security

Center in Cranston, Rhode Island (“HSC-RI”), where he has been

since April 2006. Woodburn claims that since he has been in

Rhode Island, his life has been threatened, specifically that the

Rhode Island Associate Director of Classifications, A.T. Wall

(“Wall”) requested inmates to kill him. According to Woodburn,

his protection issues are in Rhode Island, not New Hampshire. 

Based on these allegations, Woodburn is seeking an immediate

transfer back to New Hampshire and is seeking relief under 42

U.S.C. § 1983. Liberally construing his complaint3 as I am

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required to do at this stage of review, Woodburn asserts the

following claims: (1) by placing him in SHU and refusing to

investigate his requests to be moved to a lower custody status,

defendants have inflicted cruel and unusual punishment and

deprived him of procedural due process, in violation of his

Eighth and Fourteenth Amendment rights; (2) by transferring him

to Rhode Island in retaliation for his pursuing legal action,

defendants have denied his right to access the courts in

violation of the First, Sixth and Fourteenth Amendments; and (3)

by refusing to transfer him back to New Hampshire after being

informed that his life was in jeopardy at HSC-RI, defendants have

inflicted cruel and unusual punishment in violation of his Eighth 

rights. Woodburn alleges that he exhausted his available

administrative remedies before bringing this action. 

3. Discussion

My facial review of Woodburn’s complaint indicates he has

asserted facts which, if accepted as true and very generously

construed, may support at least some of the asserted § 1983

claims. This action’s fatal problem, however, is that Woodburn

requested injunctive relief, which resulted in an evidentiary

hearing being held on the matter. Now, rather than mere

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allegations, there is proffered evidence before the court which

must be considered and which very clearly vitiates the claims

asserted. See Fed. R. Civ. P. 65(a)(2) (allowing court to

consider the evidence pertaining to the merits as if it were

admitted at trial); see also Fed. R. Civ. P. 12(b)(6) (disposing

of a complaint under preliminary review for failure to state a

claim on summary judgment grounds where matters outside the

pleading are accepted). 

Woodburn testified at the hearing on his own behalf. His

direct testimony contradicted the allegations of harm being

inflicted on him by the Rhode Island prison system and failed to

demonstrate in any way how his continued placement in HSC-RI

would irreparably harm him. He did not cite a single condition

of his confinement that he wanted changed. He did not introduce

one exhibit which documented in any way his claim of abusive

verbal and physical treatment, either to substantiate his

contention that Director Wall wanted him killed or that he was

being mistreated by other inmates because of his status as a

protective custody transferee and a white supremacist. When I

asked him specifically to identify any problems he was having at

HSC-RI, Woodburn did not offer a single example. Instead, he

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simply repeated his request to be transferred back to New

Hampshire because he was unhappy about how other inmates might

treat him as a protective custody inmate. 

By contrast, the state proffered substantial evidence that

disproved Woodburn’s claims. First, the record contains no less

than 23 disciplinary and incident reports (with another 28

summarily listed) obtained during his New Hampshire

incarceration, see Exhibits B-H and J, beginning as early as 2001

and continuing through his transfer to Rhode Island in September

2005, that document a clear pattern of aggressive, disrespectful

and unruly behavior by Woodburn. These reports establish a solid

foundation for Woodburn’s placement in SHU, regardless of any

protection issues the NHSP may have been addressing. See

Exhibits H and I (record of hearing held before Woodburn’s

assignment to SHU). The record also shows that Woodburn’s

custody status was regularly reviewed. See Exhibits A, I, K, M

and O. This evidence directly opposes Woodburn’s claim that his

placement in SHU was so wanton and egregious that it violated his

Eighth Amendment right to be free from cruel and unusual

punishment, see Whitley v. Albers, 475 U.S. 312, 319

(1986)(requiring obduracy and wantonness, not good faith

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mistakes, before conduct is prohibited by the Eighth Amendment),

see also Skinner v. Cunningham, 430 F.3d 483, 488 (1st Cir. 2005)

(finding injuries caused during cell removal were neither

maliciously nor deliberately inflicted to give rise to an Eighth

Amendment claim); or his claim that it was an unjustified

restraint imposed without a hearing or other administrative

review, in violation of his Fourteenth Amendment due process

rights. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (limiting

liberty interests protected by procedural due process to freedom

from those restraints which impose “atypcial and significant

hardship on the inmate in relation to the ordinary incidents of

prison life”); see also Skinner, 430 F.3d at 487 (applying Sandin

to find no hardship in prisoner isolation and, therefore, no due

process violation). 

Second, nothing in the record supports Woodburn’s claim that

his transfer was in retaliation for his filing of a lawsuit

rather than for his protection. There is no record of any legal

action commenced by Woodburn until he initiated the instant

action, nearly ten months after he was transferred. The record

supports the state’s position that the LGD threats to Woodburn’s

personal safety were serious. See Exhibits G, L and N. Three

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4Woodburn dismissed this report, claiming his concerns about

his safety were actually sarcastic. Because so much of the

record undermines Woodburn’s current representations about his

treatment at NHSP, I find the contemporaneous record of his

feelings more persuasive than his recent rendition of the events.

13

witnesses testified about the Guerrero altercation, and the

record shows that both the prison as well as Woodburn in fact

believed there was a risk of Woodburn being killed if he left

SHU. See Exhibit N at 2.4 One witness explained the size and

power of the gang, which bolstered the claimed concern about

Woodburn’s personal safety in the general population. Another

witness responded to Woodburn’s question about segregating the

gang rather than him, by testifying that until an incident

occurs, the NHSP generally does not change the custody status or

placement of inmates. The evidence consistently corroborated the

state’s position that Woodburn’s record of disciplinary problems

and security threats were the bases for transferring him out of

the NHSP. Such justifications for the transfer are legitimate

penological goals that do not rise the level of a due process or

any other constitutional violation. See Sandin, 515 U.S. at 485

(discussing how the restricted liberty interests of prisoners is

necessary to effectuate the goals of prison management and

prisoner rehabilitation). 

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Finally, there was clear and convincing evidence that

Woodburn fabricated Director Wall’s alleged efforts to have him

killed, which was the basis for both the preliminary injunction

and his third claim that the NHSP’s failure to transfer him back, 

in light of that threat, constitutes cruel and unusual

punishment. See Exhibits Q, T and U. This evidence shows that

Woodburn was frustrated that Director Wall would not transfer him

back to NHSP and, therefore, concluded he must want Woodburn

killed. See id. Woodburn admitted he falsely accused Wall and

that he had no concrete evidence to support his suspicion that

his life was in jeopardy. The record demonstrates that Woodburn

has continued his racially motivated malfeasance at HSC-RI, but

that he presents no protection or disciplinary issues requiring

transfer out of state. See Exhibit Q.

The evidence against Woodburn was substantial. Woodburn has

a documented pattern of antisocial, malicious behavior. His

transfer to Rhode Island has not caused him any demonstrable

irreparable harm nor given rise to any constitutional violations. 

The record does indicate, however, that since December 2003,

Woodburn has spent the majority of his prison time in SHU, with

all its attendant deprivations. While the general point that

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inmates in need of protective custody should not be penalized by

being placed in SHU is reasonable, in this case, that placement

appears to be legitimate under the facts and circumstances

presented here. Accordingly, after careful consideration of the

full record before me, I find no evidence to support the relief

sought in the instant matter.

Conclusion

Since Woodburn failed to demonstrate any risk of irreparable

harm or any likelihood of success on the merits of his claims, I

recommend that his motion for preliminary injunctive relief be

denied. I further recommend that his complaint be dismissed for

failure to state a claim upon which relief may be granted. See 

28 U.S.C. § 1915A(b); see also LR 4.3(d)(2).

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Comm. v. Gordon, 979 F.2d 

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11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete, 792

F.2d 4, 6 (1st Cir. 1986).

_____________________________

James R. Muirhead

United States Magistrate Judge

Date: November 2, 2006

cc: Nancy Smith, Esq.

 Brian Woodburn, pro se

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