-
USCA1 Opinion
September 23, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-2410
BERTELL PORCHER, JR.,
Plaintiff, Appellant,
v.
MASSACHUSETTS DEPT. OF CORRECTIONS, ET AL.,
Defendant, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
___________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
______________
___________________
Bertell Porcher, Jr. on brief pro se.
___________________
Nancy Ankers White, Special Assistant Attorney General,
__________________
and David J. Rentsch, Counsel Department of Correction, on
________________
brief for appellee.
__________________
__________________
Per Curiam. Appellant, Bertell Porcher, is a
____________
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
-2-
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.
_____
Brown University, 991 F.2d 888, 902 (1st Cir. 1993). The
________________
movant's likelihood of success is "particularly influential
in the preliminary injunction calculus." Id. at 903 (citing
__
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.
__
Discussion
__________
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
-3-
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
___
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). There is no
_________ ______
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
________ ______________________________
Penitentiary, 592 F.2d 1, 4 (1st Cir.), cert. denied 444 U.S.
____________ ____ ______
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.
______
Commissioner of Correction, 409 Mass. 472, 478, 567 N.E.2d
___________________________
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.
______
Smith, 430 U.S. 817, 821 (1977). Access must be
_____
"meaningful," id, at 823, and correction authorities bear the
__
burden of demonstrating that they have provided
constitutionally adequate access, id., at 828.
__
Constitutionally adequate access may be either through the
provision of an adequate law library or adequate assistance
from persons trained in the law. Blake v. Berman, 877 F.2d
_____ ______
145, 146 (1st Cir. 1989). An inmate does not have a
-4-
constitutional right to both. Id. State correction
__
officials retain responsibility for providing
constitutionally adequate access to state prisoners
transferred to federal custody. Rich v. Zitnay, 644 F.2d 41,
____ ______
43 (1st Cir. 1981).
Appellant alleges that the transfer deprived him of
adequate legal assistance and of adequate access to a law
library. As to the first, he alleges Marion officials do not
provide legal assistance and that an inmate must seek
approval before he can call his attorney. As to the second,
he alleges that he has no direct access to Massachusetts law
books.
We find that appellant has not shown that he is likely
to succeed on the merits of this claim. Massachusetts
appears to have met its constitutional obligation by
providing appellant adequate access to a law library.
According to the affidavit of Richard Williams, the
Supervisor of Education at Marion, the main law library at
Marion contains Massachusetts state law materials--including
an annotated edition of Massachusetts law, reports of
Massachusetts cases, and appropriate digests--provided by
Massachusetts state authorities.1 Moreover, appellant's
____________________
1. According to Williams' affidavit, the library contains
Massachusetts General Laws Annotated, Chapters 1-277, Tables,
General Index, Court Rules, and Index; Massachusetts
Practice; Criminal Practice and Procedure 2d, Volumes 30 &
30A; Massachusetts Appeal Court Reports, Volumes 1-21;
-5-
access to these materials meets constitutional standards. At
Marion, inmates are not permitted direct access to the main
library. However, an inmate can request three books at a
time which "are answered within 24 hours of receipt and
delivery is provided on a daily basis excluding Saturday,
Sunday and Holidays." (Williams' affidavit). These books
may be kept in an inmate's possession for twenty four hours
and "[e]xceptions to these procedures will be granted to
inmates with demonstrated court deadlines." Id. In light of
__
the "unique disciplinary and security considerations" at
Marion, this library access plan has been found on its face
to meet constitutional standards. Caldwell v. Miller, 790
________ ______
F.2d 589, 605-06 (7th Cir. 1986). Appellant already has
checked out over ninety volumes in a six month period under
this procedure, including several dealing with Massachusetts
law. This is thus not a case like those wherein this court
has found library access to be inadequate because an inmate's
only access to state law materials depended on his ability to
provide an off site location with specific citations. See
___
Cepulonis v. Fair, 732 F.2d 1, 4 (1st Cir. 1984) ("[i]t is
_________ ____
unrealistic to expect a prisoner to know in advance exactly
what materials he needs to consult"); Rich, 644 F.2d at 43
____
(requirement of "precise citations . . . obviously a Catch
____________________
Massachusetts Reports, Volumes 360-399; Massachusetts Digest
2d, Volume 19 (Paupers-Records); and Massachusetts Rules of
Court.
-6-
22"). Finally, appellant has direct access to a smaller law
library which contains basic legal material but does not
contain Massachusetts material.
Finally, appellant asserts that his legal papers are
being improperly withheld from him. Appellant concedes that
the federal authorities at Marion would not allow him to
bring the papers with him. Appellant has been informed by
state authorities that his papers are being held in storage
and that in order for the papers to be forwarded he needs to
request permission from the federal authorities at Marion.
Although appellant asserts that "a U.S.P. Marion counselor .
. . has authorized Appellees to forward" these materials,
nothing in the record indicates that Massachusetts
authorities have been so informed or even that official
permission from Marion has been obtained. There is also no
indication in the record that Massachusetts would not deliver
the papers once it had received information that federal
authorities would accept delivery.
We find no manifest abuse of discretion in the
determination by the district court that appellant is
unlikely to succeed on the merits of his claims. The denial
of appellant's request for a preliminary injunction is
affirmed.
________
-7-
Document Info
Docket Number： 92-2410
Filed Date： 9/24/1993
Precedential Status： Precedential
Modified Date： 9/21/2015