Dupont v. Duboise

USCA1 Opinion









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[NOT FOR PUBLICATION]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


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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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