February 7, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2119
MICHAEL KEVIN DUPONT,
Plaintiff, Appellant,
v.
LARRY E. DUBOISE, Commissioner
Of Corrections, Et Al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Cyr, Circuit Judges.
Michael K. Dupont on brief pro se.
Nancy Ankers White, Special Assistant Attorney General, and
David J. Rentsch, Counsel, Department of Correction, on brief for
appellees.
Per Curiam. Michael Kevin DuPont appeals the
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
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
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
Angeles, 978 F.2d 504, 508, 509 (9th Cir. 1992) (reversing
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'
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
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
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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