Bertell Porcher, Jr. v. Massachusetts Dept.
Opinion
USCA1 Opinion
September 23, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2410
BERTELL PORCHER, JR.,
Plaintiff, Appellant,
v.
MASSACHUSETTS DEPT. OF CORRECTIONS, ET AL.,
Defendant, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Selya, Boudin and Stahl,
Circuit Judges.
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Bertell Porcher, Jr. on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General,
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and David J. Rentsch, Counsel Department of Correction, on
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brief for appellee.
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Per Curiam. Appellant, Bertell Porcher, is a
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Massachusetts prisoner currently serving his sentence in the
Federal Prison in Marion, Illinois. His original sentence
was for three to five years for breaking and entering.
However, in 1990, while still in prison, appellant received
additional consecutive sentences of nine to ten years and
four to five years for assault and battery by means of a
dangerous weapon and assault and battery on a corrections
officer, respectively. In 1991, appellant was transferred to
the Federal Bureau of Prisons which designated Marion as his
placement. When appellant arrived at Marion, federal prison
officials refused to accept the approximately four cubic feet
of legal materials which he had brought with him. These
materials related both to an appeal of his criminal sentence
and various civil actions appellant had filed or intended to
file. The papers were returned to Massachusetts and are in
storage at M.C.I. Cedar Junction. The state has indicated to
appellant that it will forward these materials when he
obtains permission from the Federal Bureau of Prisons.
In February 1992 appellant initiated a civil action
against Massachusetts officials pursuant to 42 U.S.C. 1983.
He alleged (1) that his civil rights had been violated by his
transfer to the federal prison system; and (2) that the
transfer had denied him effective access to the Massachusetts
courts. This action appears to be still pending. In October
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1992, appellant sought a temporary restraining order or, in
the alternative, a preliminary injunction requiring his
transfer to Massachusetts and the return of his legal papers.
The district court denied this motion on the ground that the
appellant was unlikely to succeed on the merits. Appellant
appeals this decision.
In assessing a request for a preliminary injunction, a
court must evaluate (1) the movant's likelihood of success on
the merits; (2) the potential for irreparable harm if the
injunction is not granted; (3) the balance of interest
between the parties; and (4) the public interest. Cohen v.
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Brown University, 991 F.2d 888, 902 (1st Cir. 1993). The
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movant's likelihood of success is "particularly influential
in the preliminary injunction calculus." Id. at 903 (citing
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cases). Absent a clear error of law or fact, we will
overturn a denial of a preliminary injunction only for a
"manifest abuse of discretion." Id. at 903.
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Discussion
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Appellant asserts that his transfer to the federal
prison system was "illegal." However, Massachusetts law
provides that "[t]he commissioner may, with the approval of
the appropriate officials of the federal government, transfer
any prisoner sentenced to state prison to any available or
appropriate correctional institution maintained and
supervised by the federal government within the confines of
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continental United States." Mass. Gen. L. ch. 127, 97A.
Federal due process rights do not attach to this transfer
since it involves no identifiable interest in liberty or
property as contemplated by the fourteenth amendment. See
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Morrissey v. Brewer, 408 U.S. 471, 481 (1972). There is no
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federal liberty interest involved in the transfer of an
inmate from a state prison to an out-of-state federal
facility. Sisbarro v. Warden, Massachusetts State
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Penitentiary, 592 F.2d 1, 4 (1st Cir.), cert. denied 444 U.S.
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849 (1979). Nor does a transfer from a state to a federal
prison implicate any liberty interest created by
Massachusetts state law or regulation. Harris v.
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Commissioner of Correction, 409 Mass. 472, 478, 567 N.E.2d
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906, 910-11 (1991).
Appellant also asserts that the transfer deprived him of
effective access to the Massachusetts courts. An inmate has
a constitutional right of access to the courts. Bounds v.
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Related
Morrissey v. Brewer
408 U.S. 471 (Supreme Court, 1972)
Bounds v. Smith
430 U.S. 817 (Supreme Court, 1977)
Anthony F. Sisbarro v. Warden, Massachusetts State Penitentiary
592 F.2d 1 (First Circuit, 1979)
Leon F. Rich v. George A. Zitnay, Etc.
644 F.2d 41 (First Circuit, 1981)
Richard Cepulonis v. Michael v. Fair
732 F.2d 1 (First Circuit, 1984)
Amy Cohen v. Brown University
991 F.2d 888 (First Circuit, 1993)
Harris v. Commissioner of Correction
567 N.E.2d 906 (Massachusetts Supreme Judicial Court, 1991)