NINA Y. WANG, Magistrate Judge.
This civil action is before the court on Plaintiff Stevie Brown's "FTA Response Showing Good Cause and Motion for Temporary Restraining Order Pursuant to Fed. R. Civ. P. 65(2)(b)(1)" ("Motion for TRO"). [#64, filed August 16, 2017]. The Motion was referred to this Magistrate Judge pursuant to the Order Referring Case dated September 21, 2016 [#11] and the memorandum dated August 17, 2017 [#65]. This court has reviewed the Motion for TRO and the Response thereto, the applicable case law, and the entire case file, and, for the following reasons, recommends that the court DENY the Motion for TRO.
Mr. Brown is an inmate within the custody of the Colorado Department of Corrections ("CDOC"), and is currently incarcerated at the Crowley County Correctional Facility ("CCCF"). Mr. Brown alleges that he was sentenced to CDOC for a term of two years to life pursuant to Colorado's Sex Offenders Lifetime Supervision Act of 1998. [#6 at 1]. Plaintiff initiated this action on August 9, 2016, by filing pro se a prisoner Complaint. See [#1]. At that time, Plaintiff was incarcerated at Fremont Correctional Facility. Id. The court granted Mr. Brown leave to proceed in forma pauperis under 28 U.S.C. § 1915, and, pursuant to a review of his claims under that statute, ordered Plaintiff to file an Amended Complaint. See [#4, #5]. On September 7, 2016, Mr. Brown filed an Amended Complaint asserting claims for the violation of his rights under Title II of the ADA and the Rehabilitation Act and the First Amendment, based on allegations that certain CDOC employees failed to accommodate his diagnosis of Bipolar I, improperly suspended and then terminated him from the Sex Offender Treatment and Monitoring Program ("SOTMP"), and retaliated against him in response to his filing grievances. See generally [#6]. In particular, Plaintiff alleges that he informed Defendant Stansell, his SOTMP therapist, that he was diagnosed with Bipolar I, and requested "specialized services," as available under Admin. Reg. 700-19 IV.G.3, for inmates participating in SOTMP who suffer from chronic mental illness. [#6 at 2]. He alleges that Defendants refused to accommodate his disability by providing these "specialized services," Defendant Stansell took "action against the plaintiff in regards to his disability," and that Defendants ultimately terminated him from SOTMP in retaliation for his attempts to informally resolve the problem through the filing of grievances. [#6 at 3-4, 6].
By Order dated September 13, 2016, the court dismissed Plaintiff's pleading in part and assigned the remaining claims to the Honorable David M. Ebel, the presiding judge, who referred the matter to the undersigned Magistrate Judge for pre-trial management. See [#7]. The following claims and demands for relief remained pending: "(i) the ADA claim asserted against Defendant State of Colorado and Defendant Stansell in her official capacity; (ii) the First Amendment claim for damages against Defendant Stansell in her individual capacity; and (iii) any claim for prospective injunctive relief against Defendant Stansell in her official capacity." [#7 at 5]. Following a Status Conference held November 17, 2016, [#16], Plaintiff filed a Second Amended Complaint [#18]. Defendants the State of Colorado and Kristie Stansell (collectively, "Defendants") filed an Answer on December 7, 2016 [#19]. Plaintiff was relocated to CCCF the same day. See [#20].
On June 8, 2017, Plaintiff filed a Motion to Amend, seeking to proceed on his theory of retaliation under the First Amendment, as opposed to the ADA. [#41]. Defendants did not object, and this court issued a Recommendation on July 26, 2017 that the court grant the motion and accept the Third Amended Complaint for filing. See [#53]. Judge Ebel adopted the Recommendation on August 15, 2017. See [#63].
On August 4, 2017, the undersigned held a second Status Conference to address extending certain pre-trial dates and deadlines in this case. See [#55, #56]. Plaintiff failed to attend the Status Conference, and he alleges that various officials at CCCF, where he remained housed, prevented him from attending. See [#58]. On August 16, 2017, Plaintiff filed the pending Motion for TRO, asking the court to "prevent[] those in authority within Crowley County Correctional Facility from interfering with his constitutional right to access the courts." [#64]. On August 23, 2017, Plaintiff filed a Supplement to the Motion for TRO. [#67]. On September 6, 2017, Defendants filed a Response.
Federal Rule of Civil Procedure 65 authorizes the court to enter preliminary injunctions and issue temporary restraining orders. Fed. R. Civ. P. 65(a), (b). "When the opposing party actually receives notice of the application for a restraining order, the procedure that is followed does not differ functionally from that on an application for a preliminary injunction and the proceeding is not subject to any special requirements." 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2951 (3d ed.) Because Defendants have notice of the Motion for TRO, and, indeed, filed a Response, the court treats the Motion for TRO as a motion for preliminary injunction.
A preliminary injunction is considered an extraordinary remedy. See, e.g., Winter v. Nat'l Res. Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). Thus, the right to such relief must be "clear and unequivocal." Petrella v. Brownback, 787 F.3d 1242, 1256 (10th Cir. 2015) (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)). A party seeking preliminary injunctive relief must satisfy four factors: a likelihood of success on the merits; a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in the movant's favor; and that the injunction is in the public interest. Id. at 1257. It is the movant's burden to establish each of these factors. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188-89 (10th Cir. 2003) (citation omitted).
The primary goal of a preliminary injunction is to preserve the pre-trial status quo. "Status quo" is defined to be the last uncontested status between the parties that preceded the controversy until the outcome of the final hearing. See Schrier v. University of Colorado, 427 F.3d 1253, 1260 (10th Cir. 2005). Therefore, courts view the following types of injunctions with caution: (1) preliminary injunctions that alter the status quo; (2) preliminary injunctions that require the nonmoving party to take affirmative action ("mandatory preliminary injunctions"); and (3) preliminary injunctions that give the movant all the relief it would be entitled to if it prevailed in a full trial. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (per curiam), affirmed, 546 U.S. 418 (2006)). Movants who seek a disfavored injunction must demonstrate a substantial likelihood of success on the merits, as well as a heightened showing of the other three elements. Id. (citing O Centro, 389 F.3d at 980). See also Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012) (the movant must show that the factors "weigh heavily and compellingly" in his or her favor). The court may grant a disfavored injunction only if the moving party demonstrates that the "exigencies of the case require extraordinary interim relief," and satisfies the heightened burden. RoDa Drilling, 552 F.3d at 1209 (citing O Centro, 389 F.3d at 978). "The determination of whether an injunction is mandatory as opposed to prohibitory can be vexing," but the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") has explained that a mandatory injunction affirmatively requires the non-moving party to act in a particular way. Schrier, 427 F.3d at 1261. Whether to issue a preliminary injunction lies in the sound discretion of the trial court. See id. at 1208 (citations omitted).
Mr. Brown is appearing pro se, and thus the court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, the court's "role is not to act as [pro se litigant's] advocate," Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Accord Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). To prevail, Mr. Brown must satisfy the same procedural and substantive requirements as a represented party. Murray v. City of Tahlequah, Okla. 312 F.3d 1196, 1199 n.2 (10th Cir. 2008) (observing that a party's pro se status does not relieve him of the obligation to comply with procedural rules) (citation omitted); Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).
Mr. Brown asserts that his failure to attend the August 3 Status Conference was the result of the actions of C.O. Montenez, who told Plaintiff that "since they had not received notification from the court that day, the hearing would not be held," and who "adamantly refused to allow plaintiff to attend the hearing." [#64]. Plaintiff further states that CCCF "was on lock-down status beginning July 31, 2017 until August 5, 2017," but that during the week of August 3, "other offenders were allowed to attend their legal meetings/hearings." [Id. at 2]. Plaintiff contends he was injured as follows:
[Id.] Plaintiff alleges there "exists a pattern or abuse by those in authority within the facility, who purposely discard grievances filed by the inmates, who purposely open, withhold, or destroy legal mail, and who do not allow inmates the opportunity to attend their meetings." [Id.] In sum, Plaintiff asks the court to "prevent[] those in authority within Crowley County Correctional Facility from interfering with his constitutional right to access the courts." [Id.] In the Supplement to the Motion for TRO, Plaintiff attaches a CDOC Administrative Regulation 750-03, which authorizes litigation coordinators, not case managers, to coordinate inmates' court proceedings. [#67-2]. In Response, Defendants argue that Plaintiff has not met the requirements for issuing a temporary restraining order, and focus exclusively on their contention that Plaintiff has not shown he will suffer irreparable harm absent such an order. [#74].
As an initial matter, this court briefly addresses whether there is an adequate basis to grant the relief Plaintiff seeks in the Motion for TRO, when it is not of the character of relief to which he would be entitled if he ultimately prevailed on his claims of discrimination and retaliation. Compare [#64] with [#52 at 7]. See Hicks v. Jones, 332 F. App'x 505, 508 (10th Cir. June 17, 2009) ("A preliminary injunction is ... appropriate to grant intermediate relief of the same character as that which may be granted finally."); Adams v. Freedom Forge Corp., 204 F.3d 475, 489-90 (3d Cir. 2000) (affirming denial of injunction where plaintiffs' harm was "insufficiently related to the complaint and does not deserve the benefits of protective measures that a preliminary injunction affords"). However, the Tenth Circuit has long recognized that the purpose of preliminary injunctive relief is to preserve the status quo pending the litigation on the merits. See Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1186 (10th Cir. 1975). And our sister courts have interpreted that to allow a plaintiff to seek preliminary injunctive relief when the relief, though dissimilar to the ultimate relief sought by the claims of the action, is intended to safeguard the court's ability to properly adjudicate the dispute before it. See, e.g., Longstreth v. Tucker, No. Civ. 05-221-C, 2008 WL 2037275 (W.D. Okla. 2008). Accordingly, this court proceeds in considering whether Mr. Brown can prevail on his Motion for TRO, because the Motion seeks relief that arguably affects his ability to pursue the claims reflected in his Third Amended Complaint.
Mr. Brown seeks an order from this court to affirmatively require certain prison officials to take undefined action "to prevent[] those in authority within Crowley County Correctional Facility from interfering with his constitutional right to access the courts." A prisoner's right to access the courts is protected by the First Amendment. Bounds v. Smith, 430 U.S. 817, 828 (1977). To state a cognizable violation of this right, Plaintiff must aver sufficient facts to demonstrate an actual injury that hindered his efforts to pursue a legal claim. See, e.g., Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir. 1996). The injury requirement is satisfied if Plaintiff is precluded from a "reasonably adequate opportunity to file nonfrivolous legal claims challenging [] convictions or conditions of confinement." Lewis v. Casey, 518 U.S. 343, 354-56 (1996). Because Plaintiff seeks a disfavored mandatory preliminary injunction, his request is subject to a heightened burden. He must demonstrate a substantial likelihood of success on his claims, as well as show that considerations involving the other three factors weigh compellingly in his favor. RoDa Drilling Co., 552 F.3d at 1208.
Weighing all the appropriate factors, this court finds that Plaintiff is not entitled to an injunction at this time for several reasons. First, Mr. Brown has failed to establish that there is a substantial likelihood that he is going to prevail on the merits of any of his claims asserted in the Third Amended Complaint, or on a claim for violation of his First Amendment right to access the courts. The Motion for TRO fails to address the likelihood of success on any of these issues. Nor does he address the factors relevant to the analysis as to whether a temporary injunction is appropriate, i.e., the balance of equities and public interest. Rather, Plaintiff argues he will suffer irreparable harm on the basis that CCCF officers have denied, or will deny, him access to the courts.
"Irreparable harm" means that "the injury "must be both certain and great"; it must not be "merely serious or substantial." Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001). Indeed, "irreparable harm is often suffered when the injury can [not] be adequately atoned for in money, or when the district court cannot remedy [the injury] following a final determination on the merits." Id. (internal quotation marks and citation omitted) (alterations in original). See McClendon v. City of Albuquerque, 272 F.Supp.2d 1250, 1259 (D.N.M. 2003) ("When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.") (quoting Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001)). Plaintiff's bald allegation that he will be deprived of access to the courts in the future due to a single alleged instance is speculative at best.
Indeed, the record before the court suggests that, despite being prevented from attending the August 4 Status Conference, Mr. Brown's access to court in this action has not been significantly limited. The case continues to progress, and, since the August 4 Status Conference, Mr. Brown has filed numerous notices and motions which the court has received and, in many instances, on which it has ruled. In addition, the Parties are in the process of briefing Plaintiff's Motion for Partial Summary Judgment, which is before the undersigned Magistrate Judge for recommendation. Furthermore, Plaintiff received notice of the new pre-trial deadlines, set at the August 4 Status Conference, including the new Final Pretrial Conference date, and has used the extensions of time to raise issues related to Defendants' discovery responses. To be sure, the court is not condoning or in any way sanctioning the alleged conduct described by Plaintiff in the Motion for TRO. However, the court has not penalized Plaintiff for his absence and he has not yet failed to attend (and his case manager or litigation coordinator has not yet failed to facilitate his attendance at) the Final Pretrial Conference, which is now set for December 12, 2017.
In addition, the relief Plaintiff requests is simply too broad. In relevant part, 18 U.S.C. § 3626(a)(2) requires that, "[i]n any civil action with respect to prison conditions," any "[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm." Id. Plaintiff's request that the court "prevent[] those in authority within Crowley County Correctional Facility from interfering with his constitutional right to access the courts," is not tailored to address the specific injury alleged, i.e., his case manager intentionally failed to facilitate a call to the court despite knowing that a court appearance was scheduled. Additionally, the court issued a Minute Order on August 15, 2017, directing "Plaintiff's case manager, or any other appropriate staff member, [to] facilitate Plaintiff's participation in a court proceeding as directed by the court as this court does not facilitate calls between parties for the purpose of court proceedings." [#62].
Finally, it is not clear that the court has the authority to enjoin C.O. Montenez or other CCCF officials with respect to this lawsuit. Plaintiff names CDOC as a Defendant, but states in the Motion for TRO that "abuse...seems to be a pattern throughout many other facilities operated by Corecivic Inc. (formerly Correctional Corporations of America)," suggesting that CCCF is operated by Corecivic Inc., rather than CDOC. [#64 at 2]. "Every order granting an injunction...binds only...the parties...." Fed. R. Civ. P. 65(d). And Plaintiff does not assert the allegations necessary for the court to entertain its limited authority to enjoin nonparties. Cf. ClearOne Communications, Inc. v. Bowers, 651 F.3d 1200, 1215-16 (10th Cir. 2011) (holding that "a district court may properly exercise personal jurisdiction over a nonparty for purposes of entering contempt orders, when the nonparty, with actual notice of an injunctive order issued by the district court, and in active concert or participation with a party, violates that order.").
For the foregoing reasons, this court respectfully
Christopher E. Longstreth, Cushing, OK, pro se.
Linda K. Soper, M. Daniel Weitman, Sherry A. Todd, Attorney General's Ofc, Oklahoma City, OK, for Defendants.
ROBIN J. CAUTHRON, District Judge.
*1 Plaintiff filed the present action pursuant to 42 U.S.C. § 1983, seeking redress for a claim of excessive force. Following the resolution of Motions for Summary Judgment filed by Defendants, only Plaintiffs claim against Defendant Tucker in his individual capacity remains. While the case is proceeding through pre-trial preparations, Plaintiff has filed a Motion for Temporary Restraining Order seeking the Court's assistance regarding his legal materials. According to Plaintiff, officials with the Oklahoma Department of Corrections ("ODOC") have seized his legal materials and threatened destruction of same. In a thorough and well reasoned Report and Recommendation ("R & R"), Judge Argo determined that Plaintiffs request was well founded and recommended a TRO
After de novo review of the R & R, Plaintiffs Objection and the attachments thereto, the Court finds the R & R should be adopted in its entirety. Initially the Court notes that the issue for which Judge Argo recommended a preliminary injunction is only tangentially related to the gravamen of Plaintiffs Complaint. As noted, this case is premised on an allegation of excessive force. The request for injunctive relief seeks to prevent the destruction of certain personal files of Plaintiff which contain legal materials related to the excessive force case. In this regard, much of the relief sought by Plaintiff in his Objection and/ or response to the supplemental report is beyond the scope of the Amended Complaint and cannot be pursued.
Turning to the Objection to the R & R, Plaintiff raises no issue therein which would alter the results set forth in the R & R. Likewise, the issues raised in the attached objection to the supplemental report likewise require no alteration of Judge Argo's determinations. The only issue which may require additional consideration is Plaintiffs assertion that not all the materials he needs are labeled with a case number. Therefore, Plaintiff argues, Judge Argo's recommendation that the ODOC be required to send Plaintiff "all legal materials pertaining to this litigation" will not resolve all issues. Until the ODOC complies with the preliminary injunction and provides Plaintiff with the required materials, it is unknown what, if any, materials are missing. Judge Argo's R & R unquestionably establishes Plaintiffs right to the materials pertaining to this case and the Court anticipates the ODOC will comply whether those materials are specifically labeled with a case number or not. In the event Plaintiff finds materials covered by the preliminary injunction missing, he may seek additional relief.
Accordingly, the Court adopts, in its entirety, the Report and Recommendation of the Magistrate Judge (Dkt. No. 136), and, for the reasons announced therein, Plaintiffs request for preliminary injunction (Dkt. No. 127) is GRANTED. A separate Order outlining the details will issue. Plaintiffs Motion to Stay (Dkt. No. 129), his Motion Re-urging Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. No. 133), and his Motion for Leave to File a Response to Defendants' Supplemental Special Report (Dkt. No. 135) are DENIED as moot.
*2 IT IS SO ORDERED.
DOYLE W. ARGO, United States Magistrate Judge.
Plaintiff, a state prisoner appearing pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging various violations of his constitutional rights. Pursuant to an order by Chief United States District Judge Robin J. Cauthron, the matter has been re-referred to the undersigned Magistrate Judge for pretrial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Currently before the Court are Plaintiffs motion for temporary restraining order and motion for preliminary injunction [Doc. No. 127], Plaintiffs motion to stay case [Doc. No. 129], Plaintiffs motion for leave to file sur-reply [Doc. No. 130], Plaintiffs motion re-urging his motion for temporary restraining order and preliminary injunction [Doc. No. 133], and Plaintiffs Motion for Leave to File Response to Defendants' Supplemental Special Report [Doc. No. 135].
Chief Judge Cauthron adopted a previous Report and Recommendation of the undersigned in which it was recommended that the motions for summary judgment of Defendants Ward and Justin Jones; Defendants Green, Watson, and Workman; and Defendants Robb and Tom Jones be granted. [Doc. No. 118]. Chief Judge Cauthron also adopted the undersigned's recommendation that the motion for summary judgment of Defendant Tucker be granted with regard to Plaintiffs official capacity and state law claims, but denied as to Plaintiffs Eighth Amendment excessive force claim, Plaintiffs claim for compensatory damages for emotional and psychological trauma, and Defendant Tucker's defense of qualified immunity. As noted, Chief Judge Cauthron re-referred the matter for the purpose of conducting pretrial proceedings.
In the motions currently before the Court, Plaintiff complains that on October 4, 2007, he was transferred from the James Crabtree Correctional Center (JCCC) to the Cimarron Correctional Facility (a private prison facility in Cushing, Oklahoma), and that approximately four weeks prior to this date his legal materials were seized in anticipation of transfer. Plaintiffs Declaration in Support of Motion for Temporary Restraining Order, ¶ 2, 3; Plaintiffs Motion for Temporary Restraining Order and Motion for Preliminary Injunction, p. 3. Plaintiff claims that he was advised that his materials would be destroyed within thirty days if not sent out of the Oklahoma Department of Corrections because they exceeded the one cubic foot legal property rule. Plaintiffs Declaration in Support of Motion for Temporary Restraining Order, ¶ 3. Plaintiff alleges that the day before his transfer he was given approximately two hours to review the materials, but that he was only able to partially accomplish his review of separating the documents because he was in a wheelchair. Id. at ¶ 14. He claims that all of the documents were again boxed up by the property officer, and he was advised he had thirty days to send them out. Id. Plaintiff states that he informed JCCC Warden David Parker that the materials included materials necessary to his pursuit of the instant litigation, and needed to be secured. Plaintiffs Motion for Temporary Restraining Order and Motion for Preliminary Injunction, p. 3.
*3 Defendant Tucker has responded to the motion for restraining order and injunction, indicating that the date upon which the legal materials were to have been destroyed has passed, rendering Plaintiffs motion moot. Defendant Tucker also urges the Court to dismiss the "lawsuit" because Plaintiffs administrative remedies with regard to the legal materials have not yet been exhausted. [Doc. No. 128].
Concerned that the Court did not yet have the benefit of a response from the prison administration regarding the incident, circumstances, and conditions which Plaintiff outlined in his motion; in particular, with regard to Defendant Tucker's claim that the matter may be moot, or that the issue may have been adequately addressed through Plaintiffs administrative process. the Oklahoma Attorney General on behalf of the Oklahoma Department of Corrections was directed to file a very brief supplemental special report under Martinez v. Aaron, 570 F.2d 317, 320 (10th Cir.1978). That report has now been received.
From that supplemental report, it appears that Plaintiffs concerns regarding his legal materials are far from moot. See Supplemental Special Report, p. 5-6. Moreover, it appears that the administrative process has been completed
In order to obtain a preliminary injunction, Plaintiff must demonstrate the following:(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) that the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) that the injunction is not adverse to the public interest. Salt Lake Tribune Pub. Co., LLC v. AT & T Corp., 320 F.3d 1081, 1099 (10th Cir.2003) (quoting Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.2001)). In addition, the right to relief must be "clear and unequivocal" because "a preliminary injunction is an extraordinary remedy." Id. After weighing these factors in light of Plaintiffs burden and the requirement that the right to relief be clear and unequivocal, the undersigned recommends that Plaintiffs application be granted, and that the Oklahoma Department of Corrections immediately provide him with all materials pertaining to this litigation contained within those legal materials seized on or about October 2, 2007, preceding his transfer to the Cimarron Correctional Facility.
*4 First, although it is not entirely clear at this point that there is a substantial likelihood that Plaintiff will prevail on the ultimate merits of his litigation, he has withstood a motion for summary judgment and has entered the pretrial stages of this litigation. Thus, his access to the legal materials pertaining to his case against Defendant Tucker is obviously of great importance, particularly as an uncounseled litigant. Second, if injunctive relief is denied, and Plaintiff is forced to proceed with trial preparation without his legal materials any resulting harm could be irreparable forcing him to pursue an appeal with the more exacting standards applicable to jury determinations. Third, the threatened injury to Plaintiff outweighs the injury to the Oklahoma Department of Corrections under the preliminary injunction, because the materials have already been inventoried and apparently sorted by case number. Finally, there is nothing obviously adverse to the public interest should the injunction be granted. As Plaintiff alleges in his Motion to for Leave to file Response to Supplemental Special Report, the prison facility in which he is housed is nonsmoking. Furthermore, there has been no information provided regarding how much of the material in the box(es) pertains to this litigation as opposed to Plaintiffs other litigation. Although the Court is sensitive to space and safety concerns presented by storage of large amounts of paper and other materials by inmates as a whole, this limited exception even assuming that the amount of documents would exceed the one cubic foot limit provided for by the applicable policy would not appear to be against the public policy, particularly in light of the overarching concerns of allowing inmates access to their own legal materials on the eve of trial.
In light of the foregoing, it is recommended that Plaintiffs motion for preliminary injunction allowing him access to his own legal materials pertaining to this litigation and which were seized upon his transfer be granted.
The undersigned notes that Plaintiff also requests that ODOC provide him with an adequate law library and house him in a correctional facility "within the jurisdictional boundaries of this Court." Plaintiffs Motion for Temporary Restraining Order and Motion for Preliminary Injunction, p. 5. He contends that he was formerly housed at two facilities that had prison law libraries, but after filing a grievance against Defendant Tucker was transferred, and then transferred again, and now is housed at Cimarron Correctional Facility which is a private prison facility without a law library and which is outside this Court's jurisdiction. Id. Although as noted, Plaintiff has made an adequate showing regarding his need for injunctive relief with regard to his own legal files, he has not done so with regard to his need for a law library. In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court recognized that inmates have a wellestablished constitutional right of access to the courts and that States must affirmatively assure that inmates are provided "meaningful access to the courts." Id . at 820-821, 824. Nevertheless, the Court recognized that its decision "does not foreclose alternative means to achieve that goal," which may be fulfilled by providing prisoners "with adequate law libraries or adequate assistance from persons trained in the law" to ensure prisoners have "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Id. at 825, 828, 830. Because there is no "abstract, freestanding right to a law library or legal assistance," an inmate alleging a denial of his right of access to the courts must show actual injury and "an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Lewis v. Casey, 518 U.S. 343, 351 (1996). Hence, the inmate must show that deficiencies in the law library or legal assistance program actually "hindered his efforts to pursue a legal claim" in order to establish a violation of his constitutional right of access to the courts. Id. Plaintiffs motion and supporting declaration provide no facts from which to infer that he is being denied his constitutional right of access to the courts under the prevailing standard established in Bounds and Casey simply because there is no law library at Cimarron. However, it is noted that on two recent occasions, this Court has invited Plaintiff to re-urge his motion for appointment of counsel but he has not done so.
*5 With regard to Plaintiffs request for transfer, he states he wants a transfer to a prison facility within this Court's jurisdiction. However, it appears that he is claiming that transfer is required in hopes that he will be moved to a facility that has a law library. Regardless, venue of actions under 42 U.S.C. § 1983 is governed by the general venue provision of 28 U.S.C. § 1391(b), and all of the relevant events took place in the Western District of Oklahoma, thus venue is proper here. Plaintiffs transfer does not change that fact. Moreover, a Court order directing ODOC to transfer Plaintiff would interfere with prison management, and is improper in light of Plaintiffs failure to make any showing that his current housing situation is interfering with his access to the courts. See Turner v. Salley, 482 U.S. 78, 84-85 (1987).
For the reasons set forth above, it is recommended that Plaintiffs motion for preliminary injunction [Doc. No. 127] be granted to the extent that he requests access to his legal materials, but otherwise denied. It is further recommended that the Oklahoma Department of Corrections be directed to send Plaintiff all legal materials pertaining to this litigation which were among those seized upon Plaintiffs transfer from the James Crabtree Correctional Center. In light of this recommendation, it is further recommended that Plaintiffs motion to stay case [Doc. No. 129] motion re-urging his motion for temporary restraining order and preliminary injunction [Doc. No. 133], and Motion for Leave to File Response to Supplement Special Report [Doc. No. 135] be denied as moot.
Not Reported in F.Supp.2d, 2008 WL 2037275
