MEMORANDUM AND ORDER
I. SUMMARY
The plaintiff, Francis Hannon, was convicted of murder by aPennsylvania state court in 1978. His direct appeal was ultimately deniedin 1981. In 1991, Hannon filed a petition for post-conviction reliefbased on newly discovered exculpatory evidence.
Hannon has been moved from a prison in Pennsylvania to several otherprisons pursuant to the Interstate Corrections Compact. See generallyM.G.L. ch. 125 App., § 2-1. He is currently incarcerated at MCI-CedarJunction in South Walpole, Massachusetts. The defendant, Peter Allen, isthe superintendent of that facility.
Hannon filed a verified complaint in this court alleging that Allen hasviolated 42 U.S.C. § 1983 and 1988 by denying the plaintiff access toPennsylvania case law and research materials. Hannon seeks declaratoryand injunctive relief, attorney's fees and costs. Hannon also filed amotion for preliminary injunction. The court scheduled a hearing on themotion for October 18, 2002 at 11:30 a.m. Counsel for Allen informed thecourt by letter that he would be unable to attend the hearing due to aconflict with a criminal jury trial earlier that week. In the letter,counsel for Hannon represented that the court could decide thepreliminary injunction motion on the parties' submissions.
The court has carefully reviewed the plaintiff's motion and thedefendant's opposition, as well as the complaint and answer. For thereasons described below, Hannon's Motion for Preliminary Injunction isbeing denied.
II. FACTUAL BACKGROUND
The following facts appear to be undisputed at this stage in theproceedings:
Hannon was convicted of murder under the laws of Pennsylvania in 1978. The conviction was affirmed in 1981. In 1991, a Pennsylvania court appointed an attorney ("Deady") to represent Hannon on a post-conviction relief petition. Attorney Deady neglected the case, failed to return Hannon's papers to him, and was disbarred. A new court-appointed lawyer was assigned to Hannon in 1997. The Pennsylvania DOC transferred Hannon to various prisons throughout the country, beginning in the late 1990's, pursuant to the Interstate Corrections Compact. He was sent to MCI-Cedar Junction in December 2001. MCI-Cedar Junction does not provide Pennsylvania case law or research material in its library.
Def.'s Memo. at 2 (citations to Complaint omitted). It is also undisputedthat Allen is the superintendent of MCI-Cedar Junction and that "he isthe state official responsible for the supervision, operation, and careof that facility." Answer ¶ 2.
In his complaint, Hannon does not identify a particular case or claimthat he is pursuing for which he needs Pennsylvania legal materials. Inhis Motion for Preliminary Injunction and accompanying affidavit,however, Hannon identifies two matters for which he claims to needPennsylvania legal materials: (1) his petitionfor post-convictionrelief; and (2) an ongoing grievance against the Commonwealth ofPennsylvania pertaining to legal materials lost during shipment as Hannonwas being transferred from one prison to another. See Pl.'s Memo. at3-4; Hannon Aff. ¶¶ 1-2. Apparently, these lost legal materials relatedirectly to Hannon's petition for post-conviction relief. See Def.'sOpp. Ex. 2 at 1.
Hannon asserts that he does not have legal counsel for either of thesematters despite valiant efforts on his part to secure legal assistance.See Pl.'s Memo. at 4; Hannon Aff. ¶ 1. Allen, referring to correspondencebetween Hannon and the Pennsylvania DOC, states that Hannon claims to beinvolved in ten pro se legal matters. See Def.'s Opp. at 4. Allendisputes whether Hannon is really without representation in any casewhere representation would make a difference. See id. at 3-5. However,Allen does not address Hannon's claim that he is without representationwith regard to his case concerning missing legal materials.
Furthermore, Allen does not provide an affidavit authenticating theexhibits to his Opposition or otherwise supporting his assertionthat Hannon is represented by counsel. Nevertheless, for purposesof ruling on this motion, the court is considering these exhibits.
Finally, Hannon alleges that the attorney in his criminal appeal is notproviding adequate representation. See Hannon Aff. ¶ 1.
III. ANALYSIS
The standard for obtaining a preliminary injunction is familiar. Ocean Spray Cranberries, Inc. v. Pepsico, Inc., 160 F.3d 58, 60 (1st Cir. 1998). The burden of proof is on the plaintiff. Id.; Equal Employment Opportunity Comm'n v. Astra USA, Inc., 94 F.3d 738, 742 (1st Cir. 1996). The court is required to weigh four factors. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996); Astra, 94 F.3d at 742. The first is whether the plaintiff has shown a likelihood of success on the merits. Ross-Simons, 102 F.3d at 15. The second is whether the plaintiff has established an imminent threat of irreparable harm in the absence of a preliminary injunction. Id. The court is also required to balance the hardship to the plaintiff if no injunction is issued against the hardship to the defendants if the requested injunction is ordered. Id. In addition, the court must consider the effect of the proposed injunction on the public interest. Id.
As the Court of Appeals for the First Circuit has said on a number of occasions, the likelihood of success on the merits is of primary importance. Id. at 16 (citing cases). It is the sine qua non for obtaining a preliminary injunction. Gately v. Commonwealth of Mass., 2 F.3d 1221, 1225 (1st Cir. 1993); Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993). If a great showing of likely success on the merits is made by a plaintiff, a reduced showing of irreparable harm may be appropriate. Ross-Simons, 102 F.3d at 19; Astra, 94 F.3d at 743.
In addition, a preliminary injunction is an equitable remedy. Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944); see also Weinberger v. Romero-Barcelo, 456 U.S. 305, 311, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). It does not issue automatically even if the foregoing criteria indicate that an injunction is warranted. Converse Constr. Co. v. Massachusetts Bay Transp. Auth., 899 F. Supp. 753, 760 (D.Mass. 1995). Thus, a court may properly consider any inequitable conduct by the plaintiff. The court may also consider any adverse impact on the public interest for which a bond cannot compensate and withhold relief for this reason alone. Weinberger, 456 U.S. at 312-13, 102 S.Ct. 1798; Converse, 899 F. Supp. at 760.
Fed.R.Civ.P. 65(c) requires a prevailing plaintiff to post a bond to pay for costs and damages that may be suffered by defendants if the defendants later prevail on the merits of the case.
Cablevision v. Pub. Improvement Comm'n, 38 F. Supp.2d 46, 53 (D.Mass. 1999).
For the reasons explained below, Hannon has not satisfied his burden ofproving likelihood of success on the merits. Although Massachusetts shareswith Pennsylvania the duty to provide Hannon with access to the courts,it appears that the defendant will be able to prove that Pennsylvania isdoing so.
"It is undisputed that inmates have a fundamental constitutional rightof access to the courts." Carter v. Fair, 786 F.2d 433, 435 (1st Cir.1986). There are several alternate, constitutionally acceptable methodsto assure meaningful access to the courts. See Bounds v. Smith,430 U.S. 817, 830 (1977); Carter, 786 F.2d at 435. Two customary methodsare providing prisoners with access to law libraries or access to legalassistance. A prison need not provide both; either one can besufficient. See Blake v. Berman, 877 F.2d 145, 146 (1st Cir. 1989).
However, there is no "abstract, freestanding right to a law library orlegal assistance." Lewis v. Casey, 518 U.S. 343, 351 (1996). As with anycase or controversy heard by an Article III court, there must be actualinjury to the plaintiff. See id. at 349. "[A]n inmate cannot establishrelevant actual injury by establishing that his prison's law library orlegal assistance program is subpar in some theoretical sense." Id. at351. Thus, in order to establish standing, an indispensable part of theplaintiff's case, Hannon must "demonstrate that a nonfrivolous legal claimhad been frustrated or was being impeded." Id. at 352-58. Furthermore,"the injury requirement is not satisfied by just any type of frustratedlegal claim." Id. at 354-55. Rather, the Constitution demands only thatprisons provide inmates with the tools they "need in order to attack theirsentences, directly or collaterally, and in order to challenge theconditions of their confinement." Id. at 355 n. 5. "Impairment of anyother litigating capacity is simply one of the incidental (and perfectlyconstitutional) consequences of conviction and incarceration." Id. "Whileundoubtedly prisoners alleging a lack of judicial access must make aprima facie showing, the ultimate burden of proving that the avenues ofresearch and/or legal or paralegal aid are adequate rests with thestate." Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir. 1981).
Allen makes two arguments as to why Hannon has not demonstrated alikelihood of success on the merits. First, Allen argues that thePennsylvania DOC is responsible for providing Hannon with access to thecourts and the Massachusetts prison system bears no responsibility forthis aspect of Hannon's confinement. See Def.'s Opp. at 6-7. Second,Allen argues that Hannon's right to access to the courts is assured byhis appointed counsel. See Def.'s Opp. at 3-5.
Although the First Circuit has only addressed this issue in dicta, thiscourt finds that Hannon is likely to succeed in establishing thatMassachusetts has a responsibility to provide him with access to thecourts while he is incarcerated here. Theresponsibility is sharedbetween the "sending" jurisdiction which transfers a prisoner out ofstate and the "receiving" jurisdiction in which the prisoner is actuallyincarcerated. See Rich v. Zitnay, 644 F.2d 41, 43 n. 1 (1st Cir. 1981)(dicta).
Rich appears to be the first case to address the question of who isresponsible for a prisoner's access to the courts when that prisoner istransferred to another jurisdiction for incarceration. See id. at 42. InRich, the plaintiffs were convicted in Maine state courts and transferredto the federal prison at Leavenworth, Kansas because they were consideredsecurity risks. Id. at 41. The plaintiffs sued Maine correctionofficials, alleging that they "were not providing sufficient legalresearch materials." Id. The district court dismissed the case. The FirstCircuit vacated and remanded. On appeal, the Maine officials argued that"the transferred prisoners are now within the care and custody ofLeavenworth authorities and it is to these officials that plaintiffsshould look for relief." Id. at 42 (citation omitted).
The First Circuit wrote:
The argument is superficially attractive. If plaintiffs' complaint were an unconstitutional lack of necessities such as food or heat it appears that they should ordinarily sue their present custodians for relief. In such a case the federal district court in Kansas rather than in Maine would be better equipped to assess the situation and order complete relief. The Leavenworth prison officials, as the prisoners' immediate custodians, would also be the proper parties for remedying the wrong. The same reasoning initially appears applicable with respect to adequate library and other legal research facilities. However, the one case we have found with facts comparable to those of the present appeal seems to have assumed without question that the sending authorities (here the Maine appellees) retain responsibility for the research and legal assistance accouterments of prisoners. See Hohman v. Hogan, 458 F. Supp. 669 (D.Vt. 1978); cf. Beshaw v. Fenton, 635 F.2d 239, 241 n. 2 (3d Cir. 1980) (citing cases) (question of who has custody of transferred prisoner in habeas corpus case is ambiguous); Battista v. Kenton, 312 F.2d 167, 168 n. 1 (2d Cir. 1963) (state prisoner transferred to federal custody remains state prisoner for habeas corpus purposes); Hoitt v. Vitek, 361 F. Supp. 1238, 1248-49 (D.N.H. 1973), aff'd., 495 F.2d 219 (1st Cir. 1974). The assumption that sending state officials retain responsibility stems perhaps from the fact that "(t)he fundament underlying the right of access to legal materials is the right of access to the courts. This is the lodestar that guides our course." Cruz v. Hauck, 515 F.2d 322, 331 (5th Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 322 (1976), citing Souza v. Travisono, 498 F.2d 1120, 1123 n. 6 (1st Cir. 1974). Here it is the Maine state courts to which appellants seek meaningful access. A federal court, in fashioning relief to insure such access, might necessarily have to call on Maine rather than Leavenworth authorities to supply professionals trained in Maine criminal law. Or the most ready sources of pertinent legal research materials may be found only in Maine. In view of the likelihood that Maine officials will necessarily have to play a role in the remedy and because of the fundamental nature of the right involved, we think that Maine authorities may not wash their hands of their obligation to insure access to Maine courts simply by transferring a prisoner out of state; See Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196, 1198-99 (1st Cir.), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 189 (1974); 34 M.R.S.A. s 707 (transferred prisoner retains "his right to legal process in the courts of this State"). They are therefore properly defendants.
Id. at 42-43. However, in a footnote, the First Circuit stated in dictathat the federal officials at Leavenworth would be proper defendants in acourt of appropriate jurisdiction because "[r]eceiving as well as sendingofficials share responsibility for assuring prisoners' access to thecourts." Id. at 43 n. 1; see also Clayton v. Tansy, 26 F.3d 980, 982(10th Cir. 1993) (describing Rich footnote as dicta).
Allen cites cases from the Ninth and Tenth Circuits to support theproposition that only sending states are responsible for a prisoner'saccess to the courts. However, these cases are not persuasive. The NinthCircuit provided no analysis, stating simply "[w]e agree with the TenthCircuit." Boyd v. Wood, 52 F.3d 820, 820-21 (9th Cir. 1995) (citingClayton v. Tansy, 26 F.3d 980 (10th Cir. 1992)). The Tenth Circuit citedonly a single decision from the Eastern District of Wisconsin asdescribing the "current consensus" that sending states alone areresponsible for access to the courts and distinguishing the dicta in Richbecause the First Circuit "was dealing with a state prisoner transferredto federal prison." Clayton v. Tansy, 26 F.3d 980, 982 (10th Cir. 1992)(citing Hudson v. Israel, 594 F. Supp. 664, 667-68 (E.D. Wisc. 1984)). Tothis court, that distinction does not justify finding a substantivedifference in the legal responsibilities of the accepting jurisdiction.
Furthermore, the district court decision cited by the Tenth Circuithardly represents a consensus view. In fact, the district court in Hudsoncites only two cases for the "general rule" imposing responsibility onthe sending authorities: Rich and a District of Vermont case cited inRich. See Hudson, 594 F. Supp. at 667-68. Thus, following the citedprecedent from the Ninth and Tenth Circuits leads full circle to the FirstCircuit's opinion in Rich which, in light of footnote one, cannot be readto stand for the proposition that sending authorities bear soleresponsibility for assuring an inmate access to the courts.
It is more appropriate to recognize a shared responsibility forassuring inmate access to the courts. As the First Circuit noted inRich, prisoners ordinarily sue their present custodians for relief fromunconstitutional conditions of confinement. Access to the courts involvesmore than whether a prison law library's collection is adequate. Otherfactors such as the availability of legal assistance programs, prisonpolicies regarding free stamps for the mailing of pleadings, theavailability of photocopiers, typewriters, and other equipment, as wellas library hours are important in determining whether a prisoner'sconstitutional rights are being violated. "[M]eaningful access to thecourts is the touchstone." Lewis, 518 U.S. at 351 (quoting Bounds, 430U.S. at 823).
Allen also cites Story v. Morgan, 786 F. Supp. 523, 526 n. 3 (W.D.Pa.1992) to support his position. This case cites three other cases whichhold that the receiving jurisdiction does not have responsibility forproviding a prisoner with access to legal materials. Benjamin v. Potter,635 F. Supp. 243 (D.V.I. 1986), aff'd mem., 838 F.2d 1205 (3d Cir.1988); Brown v. Smith, 580 F. Supp. 1576 (M.D.Pa. 1984); Kivela v. UnitedStates Att'y Gen., 523 F. Supp. 1321 (S.D.N.Y. 1981), aff'd mem.,688 F.2d 815 (2d Cir. 1982). Story, Brown and Kinela raise perhaps themost compelling argument against placing the burden of sharedresponsibility for access to the courts on a receiving state: the factthat it may not be feasible for a state to maintain prisonlibraries thatprovide adequate collections for, potentially, all fifty states.
However, the assumption that adopting Hannon's position would requirethat prison authorities provide inmates with a collection of legalmaterials for all fifty states is incorrect. There is no constitutionalright to a law library. Lewis, 518 U.S. at 351. If it is less expensiveand more efficient to provide out-of-state prisoners with legalassistance rather than legal materials, prison authorities are free tomeet their responsibilities in this fashion.
The Interstate Correction Compact contemplates that states may, bycontract, appropriately allocate the financial burdens for the care ofinmates between the sending and receiving jurisdictions. See M.G.L. ch.125 App. § 2-1(a)(5). Consequently, if Massachusetts authorities arenot in the best position to provide Hannon with access to thePennsylvania courts, they are free to contract with Pennsylvania toassure that Pennsylvania provides Hannon with the resources necessary toassure his constitutionally guaranteed access to the courts.Massachusetts authorities are not, however, entitled to disclaim anyresponsibility to a prisoner confined in their custody based on acontract to which the prisoner was not a party. In essence, this courtagrees with the dicta in Rich, 644 F.2d at 43 n. 1, and finds that"[r]eceiving as well as sending officials share responsibility forassuring prisoners' access to the courts." Id.
Although Allen has an obligation to assure Hannon's right to access tothe courts while Hannon is in his care, Hannon has not demonstrated areasonable likelihood of proving in this case that the combination ofAllen's policies, procedures and library facilities is causing him actualinjury. As explained earlier, access to Pennsylvania legal materials isnot required provided that Hannon has legal assistance for anynonfrivolous claim attacking his sentence, directly or collaterally, orchallenging the conditions of his confinement. See Lewis, 518 U.S. at 355n. 5. Based on the correspondence attached to the Defendant'sOpposition, it appears that the prison official in Pennsylvaniaresponsible for the Interstate Corrections Compact is making an effort tocomply with her state's obligations under Lewis and Bounds by determiningif Hannon is without representation in any case for which he has a rightof access to the courts. The correspondence indicates that Hannon has acourt appointed attorney for his petition for post-conviction relief andat least one other case. On the current record, there appears to be noreason that this attorney cannot assist Hannon in his efforts to reclaimhis lost legal files. If those files are important to Hannon's efforts tochallenge his conviction, it appears that his attorney has everyincentive to assist in their recovery, if possible.1
Hannon alleges in his affidavit that his current Pennsylvania attorneyhas "given up on the matter" and that he is effectively without counselin his petition for post-conviction relief. See Hannon Aff. ¶ 1.However, Hannon's conclusory assertion that his attorney's representationis so inadequate as to rise to a constitutional violation of his right toaccess to the courts is insufficient to establish that he is ultimatelylikely to prove this contention. This court has not yet been provided abasis toevaluate his attorney's performance or the procedures underPennsylvania law to ensure adequate representation. The court assumes,without finding, however, that there is a procedure by which Hannon canrequest new counsel be appointed if his current counsel is notrepresenting him effectively.
Hannon has also not proven that there is an imminent threat ofirreparable harm if a preliminary injunction is not issued. Even thetemporary loss of a constitutional right may be a form of irreparableharm. See Public Service Co. v. Town of W. Newbury, 835 F.2d 380, 382(1st Cir. 1987). However, as explained in this Memorandum, Hannon has notshown that he is likely to prove that his constitutional right to accessto the courts is being violated.
Neither party has addressed the balance of the hardships or the publicinterest. However, since the plaintiff has not satisfied his burden onlikelihood of success on the merits, the other three factors are notdeterminative. See Gately, 2 F.3d at 1225; Weaver, 984 F.2d at 12.
IV. ORDER
For the foregoing reasons, Hannons' Motion for Preliminary Injunction(Docket No. 7) is hereby DENIED.
Counsel for Hannon suggests in his letter of October 17, 2002 that,depending on the court's decision on this motion, the plaintiff may wantto dismiss this case and pursue relief in a new case in a federal orstate court in Pennsylvania. However, since the court agrees with Hannonregarding the shared responsibility of Massachusetts and Pennsylvania toprovide him with adequate access to the courts, he may still want topursue this case. Accordingly, the plaintiff shall, by February 5, 2003,inform the defendant and the court if he intends to pursue this case. Ifhe does, a scheduling conference pursuant to Federal Rule of CivilProcedure 16(b) will be held on February 20, 2003, at 2:30 p.m. Theparties shall comply with the attached Order concerning that conference.
1. If the files cannot be recovered and Hannon seeks only monetarydamages for their loss, then his legal claim is not the sort for whichthere is a constitutional right to access to the courts as it is not onethat challenges his sentence or conditions of confinement. See Lewis, 518U.S. at 355 n. 5.