2004 | Cited 0 times | D. Maine | March 17, 2004


1. Pursuant to 28 U.S.C. § 636(c), the parties have consented tohave United States Magistrate Judge Margaret J. Kravchuk conduct allproceedings in this case, including trial, and to order entry ofjudgment. Edward Hewes, an inmate at the Maine State Prison, has filed acomplaint against multiple defendants complaining that he has inadequatelaw library access time and photocopy service and that he has beendeprived access to his personal legal material; his liberty interestshave been infringed by his segregation; he has not been properlynotified; he has suffered equal protection violations because of aninability to earn a prison income; he has been the victim of aconstitutional conspiracy; and he has suffered the torts of assault,battery, and negligence. (Docket No. 1.) Hewes seeks a preliminaryinjunction and/or a restraining order requiring the defendants to givehim in-cell access to all his legal materials relating to this civilaction. (Docket No. 32.) The defendants have responded. I DENYHewes's motion. Discussion The First Circuit has instructed that trial courts entertaining motionsfor preliminary injunction "must consider (1) the likelihood of successon the merits; (2) the potential for irreparable harm if the injunctionis denied; (3) the balance of relevant impositions, i.e., thePage 2hardship to the nonmovant if enjoined as contrasted with thehardship to the movant if no injunction issues; and (4) the effect (ifany) of the court's ruling on the public interest. Ross-Simons ofWarwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15-16 (1st Cir. 1996)(citing Weaver v. Henderson, 984 F.2d 11, 12 & n. 3 (1stCir. 1993) and Narragansett Indian Tribe v. Guilbert,934 F.2d 4, 5 (1st Cir. 1991)). See also 18 U.S.C. § 3626(a)(1)(A)("Prospective relief in any civil action with respect to prisonconditions shall extend no further than necessary to correct theviolation of the Federal right of a particular plaintiff or plaintiffs.The court shall not grant or approve any prospective relief unless thecourt finds that such relief is narrowly drawn, extends no further thannecessary to correct the violation of the Federal right, and is the leastintrusive means necessary to correct the violation of the Federal right.The court shall give substantial weight to any adverse impact on publicsafety or the operation of a criminal justice system caused by therelief."). In his motion Hewes requests that I issue an order prohibiting thedefendants from confiscating and destroying or storing his legalmaterials and requiring the return of Hewes's legal materials that wereplaced in a prison storage room on January 19, 2003. Hewesexplains that he needs the materials to amend his complaint and otherpleadings, design his interrogatories, to comply with his discoveryresponsibilities under Federal Rule of Civil Procedure 26, prepare amotion for another injunction pertaining to photocopying privileges, andprepare a settlement demand. He further explains that his cell is theonly place in the prison where he has the space and the quiet to lay-outand concentrate on his legal materials. The defendants have responded. An affidavit of defendant Kevin Burnsexplains that he has been assigned as the caseworker for Edward Hewessince November 17, 2003. (Burns's Aff. ¶ 2; Docket No. 37 Attach.2.) Burns is familiar with the practices and procedures at the MainePage 3State Prison pertaining to the retrieval of prisoners' legalmaterials from the housing unit's storage cabinets (id. ¶3) and at the prison they lock cabinets on the housing units to storelegal materials for prisoners (id. ¶ 4). A prisoner may getmaterials stored in the unit's cabinet by submitting a request to acaseworker or a care and treatment worker either directly or through thePod Officer. (Id. ¶ 5.) Should Burns receive a request fromHewes to retrieve legal materials stored in the unit's locked storagecabinet, he would retrieve them; however, Burns cannot recall Mr. Hewesever requesting access to this material since he has been his caseworker.(Id. ¶ 6.) An affidavit of Robert Costigan, an administrative coordinator at theprison, explains that Costigan investigated a grievance filed by EdwardHewes on January 21, 2003, alleging a violation of due process rightsrising out of the removal of legal materials from Mr. Hewes's cell.(Costigan Aff. ¶ 4, Docket No. 37 Attach. 1.) Costigan evaluatedHewes's grievance in light of the prison's policies and procedures(id. ¶ 6) and determined that his grievance concerned thestaff's enforcement of the prison's policy on allowable property(id. ¶ 7). For reasons relating to fire safety andsecurity, prison policy limits the amount and type of property that aninmate may keep in his cell. (Id. ¶ 8.) The allowableproperty list applicable to most inmates at the prison at the time of Mr.Hewes's grievance in January 2003 and the list that became effective onJanuary 15, 2004, allow inmates, subject to certain exceptions notapplicable in this case, to store up to two legal-size accordion foldersof legal materials in their cells. (Id. ¶¶ 9-11; Docket 37Exs. B & C.) If an inmate wants to store legal materials in excess ofthe allowable amounts, he may store them in a locked file cabinetmaintained on the housing unit for this purpose. (Costigan Aff. ¶12.) In Hewes's grievance, Hewes did not dispute the staff's contentionthat he had in his cell an amount of legal materials in excess of thatallowed under our policies. (Id. ¶ 13.)Page 4 In his reply to the defendants Hewes principally argues that theprison's rule was a misuse of the Emergency Rule Making Procedure Act. Hestates that the Prisoner Handbook Manual had never been adopted throughany procedure whatsoever and that these are the kind of major substantiverules that need to be submitted to the legislature for legislativereview. He states that justifying the policy due to a fire hazard is asmoke screen because the inmates are allowed as much reading andeducation materials as they want which are, in Hewes's view, as flammableas a footlocker filled with legal papers. He also challenges the notionthat there is a security problem, arguing that the only differencebetween searching educational and reading materials verses legalmaterials is that an inmate is present during the search of the latter. "Likelihood of success is the main bearing wall of the four-factor[preliminary injunction] framework." Ross-Simons of Warwick,Inc., 102 F.3d at 16. With respect to the legal inquiry applicableto this element of Hewes's underlying complaint, the First Circuit hasprovided: An absolute denial of access to all legal materials, like an absolute denial of access to a law library or other basic form of legal assistance, might be deemed inherently prejudicial, but this case does not involve such an unqualified deprivation. On the other hand, it would be unrealistic to expect prison authorities to give all prisoners unfettered access to all of their legal materials at all times. It is a fact of life that prisoners live in prison cells. Their warders therefore may have good reason, based on considerations of safety and security, to limit the amount of legal documents and similar materials that prisoners may keep with them; if they implement those regulations fairly, the prisoners subject to the regulations will still be able to participate meaningfully in the legal process. Thus, where a prisoner, like Sowell, does not allege an absolute deprivation of access to all of his legal materials, but rather complains about some sort of conditional restriction of access to some of them, we think it fair to require him to show an "actual injury" as a prerequisite to recovery.Sowell v. Vose, 941 F.2d 32, 35 (1st Cir. 1991). Seealso Lewis v. Casey, 518 U.S. 343, 349-55 (1996).Page 5 Hewes might find the procedure for requesting access to his legalpapers and the two-folder limitation inconvenient but nothing in hispleadings begins to make a showing of "actual injury with respect to hisability to pursue his present 42 U.S.C. § 1983 challenge to hisconditions of confinement at the Maine State Prison. The docket of thiscase evidences Hewes's ability to actively participate in his case. Hisallegations of anticipated difficulty are not sufficient to carry the dayhere. Hewes has identified the not insubstantial tasks at hand withrespect to discovery, yet he does not contest Burns's averment that Heweshas not requested more access to his legal papers pursuant to the adoptedprocedures. The document access and pleading preparation situation mightbe easier for unincarcerated pro se litigants, butthe Supreme Court has made it clear that inmates do not have aconstitutional right to the "wherewithal to transform themselves intolitigating engines capable of filing everything from shareholderderivative actions to slip-and-fall claims." Lewis, 518 U.S. at355. For related reasons I conclude that Hewes has not carried the day onestablishing his susceptibility to irreparable harm if this injunction isdenied. I cannot, on this record, see how Hewes's underlying § 1983suit is in jeopardy as a consequence of the two-folder limitation, theinconvenience of the request system, noise interruptions, and the desireto spread out all his documentation. With respect to the remaining two Ross-Simons of Warwick.Inc. inquiries, I cannot, on the record generated by both sides,balance the hardship on the prison if this policy is enjoined against thehardship to Hewes stemming from the access limitations. Nor can I gauge,with substantiation, whether my ruling, one way or the other would haveany impact, pro or con, on the `public interest.' Conclusion For these reasons Hewes's motion is DENIED.Page 6 So Ordered.

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