PROPOSED FINDINGS AND RECOMMENDATIONS

JOE J. VOLPE, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to United States District Judge Billy Roy Wilson. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence proffered at the hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:

DISPOSITION

Mark Antonio Williams ("Plaintiff") alleges Defendant Budnik failed to take threats against his life seriously. (Doc. No. 8 at 4-5.) The Court previously ordered that only Plaintiff's claims for injunctive relief could proceed. Plaintiff's claims for money damages were dismissed because he did not allege any physical injury as a result of the alleged deliberate indifference. As previously stated, the Prison Litigation Reform Act provides that "no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). This provision barred Plaintiff's claims for money damages, but not his claims for injunctive relief. See Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004).

Defendant Budnik now moves for summary judgment, claiming, inter alia, that Plaintiff's claims for injunctive relief are now moot because he has been transferred to another unit. (Doc. No. 60.) Plaintiff has filed a Response in opposition to the Motion. (Doc. No. 63.) After careful review of the pleadings, for the following reasons, I find Defendant's Motion for Summary Judgment should be granted.

In support of his position, Defendant cites Randolph v. Rodgers, 253 F.3d 342, 345-46 (8th Cir. 2001). Defendant Budnik argues that, because only prospective injunctive relief is available against him, his transfer to another unit makes any claims for prospective relief "of no consequence" and thus moot. Id. I have reviewed Randolph and the supporting cases cited by the United States Court of Appeals for the Eight Circuit. I find Defendant Budnik has provided persuasive authority in support of his position. Since Defendant Budnik has no authority over Plaintiff nor any authority at the Varner Unit where Plaintiff is incarcerated, this issue is now moot.

IT IS, THEREFORE, RECOMMENDED THAT:

1. Defendant Budnik's Motion for Summary Judgment (Doc. No. 60) be GRANTED and this matter be DISMISSED without prejudice as moot.

2. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from an Order adopting these recommendations would not be taken in good faith.

IT IS SO RECOMMENDED.