Dupont v. Duboise

Opinion

USCA1 Opinion

February 7, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-2119

MICHAEL KEVIN DUPONT,

                                Plaintiff, Appellant,

                                          v.

                           LARRY E. DUBOISE, Commissioner  
                               Of Corrections, Et Al.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
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                                 ___________________

                                        Before

                               Torruella, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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                                 ___________________

               Michael K. Dupont on brief pro se.
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               Nancy Ankers White, Special Assistant Attorney  General, and
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          David J. Rentsch, Counsel, Department of Correction, on brief for
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          appellees. 



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                                  __________________

                      Per Curiam.    Michael  Kevin  DuPont  appeals  the
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            denial of his  motions for preliminary injunctive relief.  We

            affirm.

                      I.  Background
                          __________

                      DuPont  is incarcerated  at the  MCI-Cedar Junction

            state prison in  Massachusetts.   In 1992, he  filed a  civil

            rights  action  against  various  Department  of  Corrections

            personnel  and others, seeking damages and injunctive relief.

            He alleged that  defendants had violated his  rights by using

            excessive  force against  him, seizing  his legal  materials,

            denying him attorney visits and other privileges, denying him

            medical   care,  and   threatening  to   confine  him   in  a

            disciplinary unit, among other things.  After filing suit, he

            sought   preliminary   injunctive   relief,   claiming   that

            defendants were interfering  with his right  to deposit  U.S.

            mail  in a  locked letterbox,  had failed  to timely  deliver

            incoming legal mail,  had seized or  not delivered his  legal

            materials to  him, and  had gassed  and used  excessive force

            against him  in connection with seizures  of those materials.

            The district court denied his motions.1

                      II.  Discussion
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            1.  The district  court also  denied DuPont's request  for an
            injunction -- ordering defendants to pay the postage for  his
            legal mail  whenever his own  funds were insufficient  -- and
            his request  for appointment  of counsel.   In  his appellate
            brief,  DuPont did not address  those issues, and  so we deem
            them  waived.   See  Playboy  Enterprises  v. Public  Service
                            ___  ____________________     _______________
            Comm'n,  906 F.2d 25, 40  (1st Cir.), cert.  denied, 498 U.S.
            ______                                _____________
            959  (1990).     In  any  event,   exceptional  circumstances
            warranting the appointment of counsel do not exist here.  See
                                                                      ___
            Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986).
            _______    __________



In  determining whether the district court properly

            denied  preliminary injunctive relief,  we review the court's

            decision for manifest  abuse of discretion or  clear error of

            law or fact.   See Cohen  v. Brown University, 991  F.2d 888,
                           ___ _____     ________________

            902 (1st  Cir. 1993).  We find no such abuse of discretion or

            error here.  Preliminary  injunctive relief was not warranted

            because DuPont failed to  show that he was likely  to succeed

            on  the  merits  of  his  claims  or  that  he  would  suffer

            irreparable  harm if preliminary  injunctive relief  were not

            granted.    See id.  (describing  the  factors considered  in
                        ___ ___

            evaluating a request for preliminary injunctive relief).

                      The court  correctly determined that DuPont had not

            shown  that  he  was likely  to  succeed  on  his claim  that

            defendants had  violated his federal rights  by requiring him

            to show line officers the outside of envelopes he was mailing

            before he  deposited those  envelopes in a  locked letterbox.

            DuPont  has cited no  state law  or regulation  that mandates

            that defendants not inspect the outside of his mail before he

            deposited it, sealed, in the locked letterbox, and so did not

            demonstrate a  probability that any federal  liberty interest

            was  impaired by  the inspection  requirement.   See Rodi  v.
                                                             ___ ____

            Ventetuolo, 941 F.2d 22, 25 (1st Cir. 1991) (stating that, in
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            the correctional  context,  a state  establishes a  protected

            liberty  interest  where   laws  and  regulations  containing

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mandatory language restrict  prison officials' discretion  to

            undertake the challenged action).

                      Nor  did  the  court  err  in  denying  preliminary

            injunctive relief with respect to DuPont's claim that certain

            legal  mail had  not been  delivered to  him or had  not been

            timely  delivered to him.  DuPont  acknowledged that he could

            not   prove   "a   pattern  of   intentional   federal   mail

            obstruction."   On  a few  occasions, he  apparently received

            legal mail later than he thought he should.   Although he did

            not receive  service receipts  showing that the  complaint in

            this case  had  been served  on  certain defendants,  he  did

            receive photocopies of the receipts which a U.S. Marshal sent

            to him.   He did not  allege or proffer  any evidence showing

            that any late  receipt of  legal mail had  affected or  would

            affect  ongoing litigation  matters.   Since  DuPont was  not

            systematically deprived  of his legal mail,  and the isolated

            deprivations  alleged  here  obviously  did  not  affect  his

            ability to pursue his court actions, we sustain the denial of

            preliminary injunctive relief.  See Sowell  v. Vose, 941 F.2d
                                            ___ ______     ____

            32, 35 (1st Cir. 1991) (since prison officials' loss of a few

            legal  documents was  not inherently  prejudicial, to  show a

            constitutional  deprivation  plaintiff had  to show  that the

            loss of  those particular documents  had deprived him  of his

            ability to participate meaningfully in the legal process).

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The court correctly determined that  DuPont had not

            shown  that  preliminary  injunctive  relief   was  warranted

            because he  would likely be  subjected to excessive  force in

            the future.  In seeking preliminary relief, DuPont relied  in

            part on conclusory allegations  in his complaint that certain

            defendants, who are high ranking Department of Corrections or

            MCI-Cedar  Junction  officials, had  ordered  extraction team

            members to use excessive force on him on several occasions in

            1991  and on another  occasion in 1992.   But he submitted no

            evidence  to  support his  claim that  such orders  were ever

            issued, and so failed to show that defendants had some policy

            or persistent practice  of using force against  him; thus, he

            did  not show  a  real and  immediate  threat that  he  would

            continue  to  be  subjected  to  excessive  force  in  future

            extraction  team uses  of  force against  him.   DuPont  also

            averred  in  an affidavit  that  he  had  been  subjected  to

            excessive force on January 12, 1993.   But he did not present

            any  evidence to  the  court  to  show  that  the  particular

            extraction team  members who  allegedly used excessive  force

            against  him on that  date were predisposed  to use excessive

            force against him  or had  been ordered by  superiors to  use

            excessive  force against him; thus,  he did not  show that it

            was likely that they would use excessive force against him in

            future uses of force.  Moreover, the extraction  team members

            in  question have not yet been named defendants in this suit.

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Compare  Rizzo   v.  Goode,  423  U.S.   362,  371-72  (1976)
            _______  _____       _____

            (reversing grant of injunction in part because plaintiffs had

            not   submitted  evidence   linking  specific   instances  of

            individual police officer misconduct  with any plan or policy

            of defendants;  the individual  police officers had  not been

            named as defendants in the suit); see Thomas v. County of Los
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            Angeles, 978 F.2d  504, 508, 509  (9th Cir. 1992)  (reversing
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            grant  of  preliminary  injunction  against  county sheriff's

            department  and  remanding  because  plaintiffs  had not  yet

            established that they were likely to  succeed in showing "not

            merely  misconduct,  but a  pervasive  pattern of  misconduct

            reflecting  departmental  policy")   (majority  opinion,   as

            amended 1/12/93);  contrast Cohen  v. Coahoma County,  805 F.
                               ________ _____     ______________

            Supp. 398,  405-06 (N.D. Miss. 1992)  (preliminary injunction

            granted where sheriff had testified that he would continue to

            whip  county jail  prisoners in  order to  coerce information

            about escape attempts).

                      Finally, preliminary injunctive relief  against the

            seizure  of DuPont's legal files  was not warranted.   To the

            extent  that DuPont  sought to  enjoin prison  officials from

            enforcing reasonable limits on the amounts of legal materials

            kept in  his cell,  he  had no  right to  such  relief.   See
                                                                      ___

            Sowell, 941 F.2d at 35.  Nor did DuPont show that defendants'
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            retention of specific legal materials from this case  and his

            federal habeas case actually threatened his ability to pursue

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those  cases  in court.2   See  id. (a  plaintiff complaining
                                       ___  ___

            about  a  conditional  restriction  on his  access  to  legal

            materials  must show  actual injury  to his  ability to  gain

            access  to  the  courts).     Although  DuPont  alleged  that

            defendants had  withheld his state criminal trial transcripts

            since November 10, 1992, he submitted no evidence that he was

            actively  seeking those  transcripts  at the  time he  sought

            preliminary  injunctive  relief,  or  that  he  had  informed

            defendants  of deadlines  in  his criminal  appeal for  which

            those  transcripts were  necessary.   Although  his  criminal

            appeal  was later  dismissed  for want  of prosecution,  that

            occurred nearly five months later.  Since there was no reason

            to believe  that DuPont would suffer any  irreparable harm in

            the  absence of  an  injunction, or  that any  constitutional

            deprivation of  legal materials  was taking place,  the court

            properly  denied  preliminary  injunctive  relief.   See  id.
                                                                 ___  ___

            (affirming  summary  judgment  for  defendants   because  the

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            2.  It would have been hard to make such a showing since both
            cases  were   pending  before   the  very  court   which  was
            considering DuPont's  preliminary injunction motions.   Being
            fully  informed  of  DuPont's  claim  that   defendants  were
            withholding  necessary  court  papers, the  court  would  not
            likely have enforced any  deadlines against DuPont.  Although
            DuPont  alluded to his  inability to  file his  first amended
            complaint,  defendants submitted an affidavit stating that he
            had  rejected  an opportunity  to go  to  a visiting  room to
            select legal materials he wished to have in his cell.  Papers
            DuPont   filed   on  appeal   support   that  representation.
            Accordingly, DuPont's  inability to obtain his  first amended
            complaint would  seem attributable to  his own  recalcitrance
            and not to defendants.

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plaintiff had  not articulated a causal  relation between the

            deprivation of legal materials and the dismissal of his state

            appeal).

                      Affirmed.3             
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            3.  DuPont has filed numerous motions in this appeal.  To the
            extent that we  have not  already addressed  them in  earlier
            orders,  we hereby deny them, either  because they are mooted
            by  this decision, or because  they should be  brought in the
            district court in the first instance.

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