USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1459
MICHAEL KEVIN DUPONT,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS, COMMISSIONER OF CORRECTIONS, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
____________________
Michael Kevin Dupont on brief pro se. ____________________
Nancy Ankers White, Special Assistant Attorney General, and David __________________ _____
J. Rentsch, Counsel, Department of Correction, on brief for appellees. __________
____________________
November 6, 1996
____________________
Per Curiam. Michael Kevin DuPont appeals from the __________
district court's denial of preliminary injunctive relief.1 1
We affirm, without prejudice to his right to seek certain
relief anew in the district court, as is explained below.
A. Background __________
DuPont is incarcerated at MCI-Cedar Junction in
Massachusetts. In 1992, he filed a pro se civil rights ___ __
action against various Department of Corrections personnel
and others, seeking damages and injunctive relief under 42
U.S.C. 1983. Among other things, he alleged that
defendants had violated his rights by using excessive force
against him, seizing his legal materials, denying him medical
care, and threatening to confine him in a disciplinary unit.
At the time he filed his complaint, DuPont was in the
Departmental Segregation Unit (DSU), but he was later placed
in the Departmental Disciplinary Unit (DDU), where he
remains.
In this appeal, DuPont challenges the district
court's denial of his request for an injunction ordering
compliance with certain stipulations, agreements, or orders
in the following cases: Cepulonis v. Fair, D. Mass., No. _________ ____
78-3233-Z; Stone v. Boone, D. Mass., No. 73-1083-T; Alston v. _____ _____ ______
____________________
1The court accepted a magistrate's report recommending 1
denial of some of his requests for relief in an order dated
August 3, 1995, and summarily denied other requests in an
order dated March 13, 1996. DuPont appeals from those two
orders.
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Fair, D. Mass., No. 77-3519-G; Hoffer v. Fair, S.J.C. No. 85- ____ ______ ____
71; and DuPont v. Hall, Norfolk Super. Ct. No. 87-1399. He ______ ____
also objects to the court's denial of his requests for
injunctions forbidding the use of chemical agents or
excessive force against him, forbidding his placement in a
strip cell, directing the return of postage stamps taken from
his incoming mail and the return of certain legal materials,
and directing his release from the DDU.
B. Discussion __________
If the district court has made no clear error of
law or fact in its ruling on a preliminary injunction motion,
we will not disturb its conclusion absent manifest abuse of
discretion. See Cohen v. Brown University, 991 F.2d 888, 902 ___ _____ ________________
(1st Cir. 1993). For the reasons outlined below, we find
that the district court did not overstep its bounds in
denying the requested relief.
Consent Decree Violations. In part, DuPont seeks __________________________
orders enforcing federal or state court consent decrees, but
such relief is unavailable in an individual action under 42
U.S.C. 1983. See Martel v. Fridovich, 14 F.3d 1, 3 n.4 ___ ______ _________
(1st Cir. 1993).2 2
____________________
2On appeal, DuPont presents a new claim that his placement 2
in the DDU breached a settlement agreement in DuPont v. Fair, ______ ____
Plymouth Super. Ct. No. 89-0105-B, but that claim would also
be barred under Martel. ______
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State Law Violations. DuPont also asserts various ____________________
state law violations, e.g., that defendants have not properly
promulgated certain DDU rules, did not medically screen him
before placing him in the DDU, and have not provided certain
law library access, all in violation of state statutes or
regulations. But he does not explain how defendants thereby
violated federal law, and this court does not have the power
to direct state officials to comply with state law. See ___
Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 230 (1st _____________________ ____________
Cir. 1992) (citing Pennhurst State Sch. and Hosp. v. ___________________________________
Halderman, 465 U.S. 89, 106 (1984)). _________
Court Access. DuPont complains that defendants _____________
violated his right to court access by restricting his ability
to conduct legal research3 and by seizing legal materials 3
from his cell. DuPont has clearly been able to challenge his
criminal conviction and sentence by filing a direct appeal
and post-conviction motions in state court and by filing two
habeas petitions (and appeals from the dismissal thereof) in
federal court. He has also been able to file and prosecute
this action challenging the conditions of his confinement.
Nothing in the record indicates that DuPont's access to the
courts has not been adequate or meaningful. Consequently, he
____________________
3According to DuPont, he may not physically use the 3
prison's law libraries, but must submit written requests for
xeroxed copies of legal materials and give exact citations
for such materials, and he has no access to softcover advance
sheets.
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has not suffered the "actual injury" required to show a
violation of his right to meaningful court access. See Lewis ___ _____
v. Casey, 116 S. Ct. 2174, 2180-82 (1996). _____
Liberty Interests. DuPont asserts that defendants _________________
have violated his due process liberty interest in law library
access and in not being confined in the DDU by their failure
to comply with obligations imposed in the cases cited in the
beginning of this opinion. Contrary to DuPont's claim,
however, the Alston case did not require defendants to ______
prepare and evaluate a health status report before placing
him in the DDU, which is located at Cedar Junction as is the
DSU where he was previously housed. Alston requires the ______
preparation and review of health status reports only before
an inmate is transferred to an entirely different
institution. Likewise, Stone does not clearly grant DuPont _____
the right to physically use the prison law library. It
requires that all inmates have supervised access to the law
library unless "special circumstances" dictate otherwise.
Such circumstances may well encompass DuPont's confinement in
the DDU.
DuPont v. Fair and the Hoffer and Cepulonis cases ______ ____ ______ _________
relate only to inmates in the DSU, but DuPont alleges that ___
they apply because the DDU is really a pretextual DSU.
DuPont's arguments on this point are not persuasive. The
affidavit by defendant DOC Commissioner Dubois to which he
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points affirmed that the DDU is distinct from the DSU in its ________ __
disciplinary purpose. The list of comparisons between the
DSU and DDU which DuPont submitted to the district court
actually describes significant differences between the two
units. Finally, while the DDU may have effectively replaced
the DSU at Cedar Junction, Commissioner Dubois testified in a
deposition in a different case (which is in the record before
us) that he did not establish the DDU in order to evade legal
obligations applicable to the DSU.
In his objections to the magistrate's report,
DuPont raised an argument based on Sandin v. Conner, 115 S. ______ ______
Ct. 2293 (1995), which had just then been decided, and which
the district court did not discuss in its opinion accepting
the report and recommendation. DuPont asserts that
confinement in the DDU is an atypical and significant
deprivation, giving him a due process liberty interest under
Sandin, which defendants violated when they put him in the ______
DDU. The present record does not contain sufficient
information to permit evaluation of this claim.4 For that 4
reason, a remand to consider the Sandin claim makes no sense. ______
Accordingly, we affirm the denials below on the basis of the
____________________
4We note, too, that DuPont has asked us to send certain 4
materials on file in this court which are relevant to his
Sandin claim to the district court, a request which we hereby ______
grant. The materials were filed in connection with a
previous appeal by DuPont in this case, but were never filed
in the district court.
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arguments originally presented to the district court, but do
so without prejudice to DuPont's right to seek preliminary
injunctive relief anew based on Sandin. We remind him, ______
however, that the district court has directed him to comply
fully with Loc. R. 7.1 in filing motions and supporting
memoranda in that court, and that district courts "are
entitled to demand adherence to specific mandates contained
in the [local] rules." See Air Line Pilots Ass'n v. ___ ________________________
Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir. _______________________________
1994).
Equal Protection. On appeal, DuPont asserts that ________________
the particular law library access restrictions placed on him
as a DDU inmate violate his equal protection rights because
other inmates in "disciplinary segregation," i.e., inmates in
the "locked down max end and segregation blocks 9 and 10,"
have greater library access. This bare allegation does not
establish that the inmates he refers to are situated
similarly enough to DDU inmates to require similar law
library rights. See Hosna v. Groose, 80 F.3d 298, 304 n.8 ___ _____ ______
(8th Cir.) (the district court should not presume that
inmates in administrative segregation for their own
protection are necessarily similarly situated with protective
custodyinmates), cert.denied,1996 WL375894(U.S. Oct.7,1996).5 5 ___________
____________________
5On appeal, DuPont asserts a new claim that defendants' 5
failure to provide DDU inmates with the 90-day periodic
review and early release options given DSU inmates violates
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Mail Rights While in Strip Cell. On three _____________________________________
occasions in 1994, defendants put DuPont in a strip cell for
periods ranging from four to eleven days, during which time
DuPont's incoming mail was allegedly withheld and he was also
denied writing materials. We evaluate the withholding of
incoming mail under Turner v. Safley, 482 U.S. 78, 89 (1987), ______ ______
see Thornburgh v. Abbott, 490 U.S. 401, 413 (1989), and the ___ __________ ______
restriction on outgoing mail (i.e., the denial of writing
materials) under Procunier v. Martinez, 416 U.S. 396 (1974). _________ ________
Because the withholding of mail was reasonably related to
legitimate penological interests and the restriction on
outgoing mail furthered a substantial governmental interest
unrelated to the suppression of expression and was no greater
than necessary, we find no constitutional violation. DuPont
was placed in a strip cell due to intransigence sufficiently
serious to require the use of chemical agents. Restricting
his mail privileges helped the state maintain order and
security in the DDU by ensuring that unpleasant consequences
flowed from such misbehavior. See, e.g., Little v. Norris, ___ ____ ______ ______
787 F.2d 1241, 1243-44 (8th Cir. 1986) ("The purpose of
withholding personal mail is to make punitive isolation
unpleasant, and thereby discourage improper behavior and
____________________
his equal protection rights. As noted above, DuPont's own
list comparing the DSU and DDU suggests that there are
significant differences between the two units. Since DSU and
DDU inmates do not seem to be similarly situated, his claim
seems unlikely to be successful.
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promote security within the prison."). Given the limited
privileges of DDU inmates, which must be earned, defendants
may have had few other alternatives for inducing persistently
disobedient inmates like DuPont to behave. Moreover, the
withdrawal of mail privileges was temporary. DuPont was
given his mail and permitted to write letters after leaving
the strip cell. His confinement was also relatively short in
duration, lasting 11 days or less. The restriction was
content neutral, applying to all incoming and outgoing
correspondence. DuPont was permitted attorney visits and his
attorney could keep him informed about pending cases. He has
not asserted the actual loss of any cause of action due to ____
his inability to write letters or draft legal documents while
confined in the strip cell.
Incoming Stamps. Defendants have removed stamps ________________
from DuPont's incoming mail, citing a DDU rule prohibiting
the receipt of stamps through the mail and requiring DDU
inmates to buy stamps at the prison canteen. DuPont avers
that he did not have enough money in his prison account to
buy stamps. But his correspondents who desire to send him
stamps may donate funds to his prison account for that
purpose, instead. See 103 Code Mass. Regs. 405.16. The ___
prison also provides some free postage for personal mail and
unlimited postage for necessary mail to court officials and
attorneys. Id. 481.10. Under the circumstances, we find ___
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no constitutional violation. See Kaestel v. Lockhart, 746 ___ _______ ________
F.2d 1323, 1325 (8th Cir. 1984) (per curiam) (prison could
prohibit the receipt of postal stamps through incoming mail
in order to prevent inmates from using them as a source of
currency outside their regular prison accounts; inmates could
obtain pre-stamped envelopes from the commissary and some
funds were available for postage for indigent inmates)
(applying Procunier standard); accord Pacheco v. Comisse, 897 _________ ______ _______ _______
F. Supp. 671, 682 (N.D.N.Y. 1995) (applying Turner standard). ______
Seizures of Legal Materials. DuPont objects to ___________________________
defendants' seizure of legal materials from his cell.
Contrary to his assertions, however, the settlement agreement
in DuPont v. Hall, supra, did not give him the right to keep ______ ____ _____
12 cubic feet of legal materials in his DDU cell or the right
to select materials to keep in his cell before excess ______
materials were removed and placed in storage. The prison's
property limit regulation expressly permitted him to keep no
more than 1 cubic foot of legal materials in his cell, see ___
103 Code Mass. Regs. 403.09, and so defendants could remove
materials exceeding that limit. The regulation in question
is not arbitrary or unreasonable simply because the federal
prison system has a more generous property limit. See Savko ___ _____
v. Rollins, 749 F. Supp. 1403, 1407-8 (D. Md. 1990), aff'd, _______ _____
924 F.2d 1053 (4th Cir. 1991) (table). Finally, defendants'
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seizures of his excess materials have not caused any actual
injury to his right of court access, as is indicated above.6 6
Excessive Force. DuPont seeks an injunction _______________
against defendants' use of chemical agents when removing
excess legal materials from his cell, alleging that they have
used excessive force and chemical agents against him on
multiple occasions from 1991 to 1994. The record indicates
that chemical agents and/or forced move teams have been used
against DuPont some 14 times in that time period after he has
refused to obey orders or rules. He may be able to convince
a jury that excessive force was used against him on February
14, 1994, as he asserts, but that injury could be remedied
through a damages award. See Cohen, supra, 991 F.2d at 902 ___ _____ _____
(the availability of adequate damages may justify denying
preliminary injunctive relief). On practically all other
occasions when chemical agents were used against him, DuPont
reported no injuries and medical personnel observed none. On
a few occasions, he reported old or minor injuries. Prison
officials sought medical authorization before using chemical
agents on DuPont and his eyes and face were washed after
their use. We conclude, therefore, that defendants have not
____________________
6DuPont also sought the return of particular materials 6
removed from his cell in July 1994. He may review his stored
materials to obtain the particular documents he wants,
however, but has declined to do so.
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systematically used excessive force or improperly used
chemical agentsso asto justify preliminaryinjunctive relief.7 7
Use of Strip Cells. DuPont alleges that the _____________________
conditions in the strip cell in which he was occasionally
confined in 1994 violated the Eighth Amendment. Even
assuming that the conditions he describes were sufficiently
serious deprivations to establish a constitutional violation,
DuPont has not shown facts to indicate that any named
defendant knew of and disregarded an excessive risk to his
safety. Thus, he has not shown the requisite "deliberate
indifference" to warrant any relief, at this time, on an
Eighth Amendment claim. See Farmer v. Brennan, 114 S. Ct. ___ ______ _______
1970, 1977 (1994); Williams v. Delo, 49 F.3d 442, 446-47 (8th ________ ____
Cir. 1995) (denying injunctive relief to an inmate confined
in a strip cell since he had not shown that any named
defendant had known of and disregarded any excessive risk to
____________________
7On appeal, DuPont objects to the district court's refusal 7
to compel discovery to permit him to identify the guards who
allegedly used excessive force against him. We note that
discovery orders are not generally appealable prior to entry
of final judgment. See 9 Moore's Federal Practice ___ __________________________
110.13[2], at 132 (2d ed. 1996). In addition, our affirmance
does not rest on the ground that DuPont failed to identify
the guards in question, although that reason was cited by the
district court in denying preliminary injunctive relief.
Therefore, we decline to consider the district court's
failure to compel discovery in this appeal. See Coastal ___ _______
Fuels of Puerto Rico v. Caribbean Petroleum Corp., 990 F.2d _____________________ __________________________
25, 28 (1st Cir. 1993) (declining to review the lower court's
decision on an issue on which the denial of preliminary
injunctive relief did not depend where the decision was not
immediately appealable).
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his health or safety). DuPont filed a grievance about
conditions in the strip cell with defendant DDU Director
Harrington, but not until after his release from the strip _____
cell.
Transfer of Materials to District Court. We hereby _______________________________________
grant DuPont's request that we send certain First Circuit
materials to the district court.
Affirmed, without prejudice to appellant's right to ___________________________________________________
raise a new claim for preliminary injunctive relief in the _____________________________________________________________
district court based on Sandin v. Conner, 115 S. Ct. 2293 _____________________________________________________________
(1995). The clerk of this court is hereby directed to send _____________________________________________________________
to the district court the materials filed in No. 93-2119 _____________________________________________________________
which are identified by appellant in his appellate brief. __________________________________________________________
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