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[NOT FOR PUBLICATION]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
__________________

Da
__

J. Rentsch, Counsel, Department of Correction, on brief for appelle

__________

____________________

November 6, 1996
____________________

Per Curiam.
__________

Michael

Kevin DuPont appeals from the

district

court's denial

We affirm,

of preliminary

without prejudice

to his

injunctive relief.1
1

right to

seek certain

relief anew in the district court, as is explained below.

A.

Background
__________

DuPont

Massachusetts.

action

In 1992,

against various

and others,

U.S.C.

is incarcerated

he filed

defendants had

Among

MCI-Cedar Junction

Department of

seeking damages

1983.

at

pro se
___ __

civil rights

Corrections personnel

and injunctive relief

other

things,

violated his rights by

in

he

under 42

alleged

that

using excessive force

against him, seizing his legal materials, denying him medical

care, and threatening to confine him in a disciplinary

At

the

time

he filed

his

complaint,

DuPont

was in

unit.

the

Departmental Segregation Unit (DSU),

in

the

Departmental

Disciplinary

but he was later placed

Unit

(DDU),

where

he

remains.

In

court's

denial of

compliance

in

this

appeal,

his

DuPont challenges

request for

the

district

an injunction

ordering

with certain stipulations,

the following cases:

agreements, or orders

Cepulonis v. Fair,
_________
____

D. Mass.,

No.

78-3233-Z; Stone v. Boone, D. Mass., No. 73-1083-T; Alston v.

_____
_____
______

____________________

1The court
1

accepted

denial of some of his

August 3,
order
orders.

a magistrate's

report

recommending

requests for relief in an order

1995, and summarily

dated March 13, 1996.

denied other
DuPont appeals

dated

requests in

an

from those two

-2-

Fair, D. Mass., No. 77-3519-G; Hoffer v. Fair, S.J.C. No. 85____

______
____

71; and DuPont v. Hall,

______
____

also

objects

injunctions

Norfolk Super. Ct. No. 87-1399.

to the

court's

forbidding

the

excessive force

against him,

denial

use

of

of his

chemical

requests

agents

forbidding his placement

He

for

or

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

discretion.

See Cohen v. Brown University, 991 F.2d 888, 902

___ _____
________________

(1st Cir. 1993).

that the

district

For

manifest abuse of

the reasons outlined

court

did

not overstep

below, we

its

bounds

find

in

denying the requested relief.

Consent Decree Violations.

__________________________

orders enforcing federal or

such relief is unavailable

In

part, DuPont seeks

state court consent decrees, but

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.

______

-3-

State Law Violations.

____________________

DuPont also asserts

various

state law violations, e.g., that defendants have not properly

promulgated certain

before

medically screen him

placing him in the DDU, and have not provided certain

law library

regulations.

violated

to

DDU rules, did not

access, all

in violation

of state

But he does not explain how

statutes or

defendants thereby

federal law, and this court does not have the power

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

from his cell.

research3 and
3

by seizing

legal materials

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

federal

court.

this action

He has also been

challenging the

Nothing in the

from the dismissal thereof) in

able to file and prosecute

conditions of

his confinement.

record indicates that DuPont's

courts has not been adequate or meaningful.

access to the

Consequently, he

____________________

3According
3

to

DuPont,

he

prison's law libraries, but

xeroxed copies

of legal

may not

physically

use

the

must submit written requests for

materials and give

exact citations

for such materials, and he has no access to softcover advance

sheets.

-4-

has

not

suffered the

"actual

injury" required

violation of his right to meaningful court access.

to

show a

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

to

comply with obligations imposed in the cases cited in the

beginning

of

however,

the

prepare and

him in

DSU

this opinion.

Alston
______

evaluate a

case

Contrary

did not

to DuPont's

require

health status report

claim,

defendants

to

before placing

the DDU, which is located at Cedar Junction as is the

where he

was previously

preparation and

an

the DDU by their failure

inmate

is

housed.

review of health status

transferred

to

an

Alston requires
______

the

reports only before

entirely

different

institution.

the

right

Likewise, Stone does not

_____

to physically

use the

requires that all inmates have

library

unless

"special

clearly grant DuPont

prison

law library.

It

supervised access to the

law

circumstances" dictate

otherwise.

Such circumstances may well encompass DuPont's confinement in

the DDU.

DuPont v.
______

relate

they

Fair and the Hoffer

____
______

only to inmates in

apply

because the

DuPont's arguments

affidavit by

the DSU, but

___

DDU

is

on this point

defendant DOC

and Cepulonis cases

_________

DuPont alleges that

really a

pretextual

DSU.

are not

persuasive.

The

Commissioner Dubois to

-5-

which he

points affirmed that the DDU is distinct from the

________
__

disciplinary purpose.

DSU

and DDU

actually

units.

The

which DuPont

list of comparisons

submitted to

describes significant

Finally, while the

DSU in its

between the

the district

differences between

court

the two

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

DuPont raised an argument

Ct.

to

the

report,

based on Sandin v. Conner,

______
______

115 S.

2293 (1995), which had just then been decided, and which

the district

court did not discuss in

the

and

report

confinement

in

recommendation.

the

DDU

deprivation, giving him a

Sandin,
______

DDU.

magistrate's

is

an

present

information to permit

DuPont

atypical

asserts

and

that

significant

due process liberty interest under

which defendants violated

The

its opinion accepting

record

does

when they put

not

evaluation of this

contain

claim.4
4

him in the

sufficient

For

that

reason, a remand to consider the Sandin claim makes no sense.

______

Accordingly,

we affirm the denials below on the basis of the

____________________

4We
4

note, too, that DuPont

materials on file

in this

has asked us

court which are

to send certain
relevant to

his

Sandin claim to the district court, a request which we hereby

______
grant.

The

materials

were

previous

appeal by DuPont in this case, but were never filed

in the district court.

-6-

filed

in

connection with

arguments originally presented to

so without

prejudice to

injunctive

relief anew

however, that

fully

in

entitled to

in

DuPont's right to

based

seek preliminary

on Sandin.
______

We remind

the district court has directed

with Loc.

memoranda

the district court, but do

R.

that

7.1 in

court,

the [local]

rules."

him to comply

filing

motions and

and that

district

demand adherence to specific

See
___

Precision Valley Aviation, Inc.,

_______________________________

him,

supporting

courts

"are

mandates contained

Air Line Pilots Ass'n

________________________

26 F.3d 220, 224 (1st

v.

Cir.

1994).

Equal Protection.
________________

On appeal,

DuPont asserts that

the particular law library

as a

access restrictions placed on him

DDU inmate violate his equal

protection rights because

other inmates in "disciplinary segregation," i.e., inmates in

the

have

"locked down max end

greater library access.

establish

that

similarly

enough

library rights.

(8th

and segregation blocks

Cir.)

inmates

in

(the

the

to

See
___

inmates

DDU

This bare allegation does not

he

refers

inmates to

administrative

to

require

Hosna v. Groose, 80
_____
______

district

9 and 10,"

court should

segregation

are

situated

similar

law

F.3d 298, 304

n.8

not

for

presume

that

their

own

protection are necessarily similarly situated with protective

custodyinmates), cert.denied,1996 WL375894(U.S. Oct.7,1996).5

5
___________

____________________

5On appeal,
5
failure

to

review and

DuPont asserts

provide DDU

a new claim

inmates

with

early release options given

that defendants'

the 90-day

periodic

DSU inmates violates

-7-

Mail Rights While in

Strip Cell.
_____________________________________

occasions

On

three

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,

___ __________
______

restriction

on outgoing

490 U.S. 401, 413 (1989),

mail (i.e.,

materials) under Procunier v.

_________

Because

the withholding

legitimate

penological

outgoing mail

the denial

and the

of writing

Martinez, 416 U.S. 396 (1974).

________

of mail

interests

was reasonably

and

furthered a substantial

the

related to

restriction

on

governmental interest

unrelated to the suppression of expression and was no greater

than necessary, we find

no constitutional violation.

was placed in a strip cell due to

serious

to require the use

DuPont

intransigence sufficiently

of chemical agents.

Restricting

his

mail

privileges helped

security in the DDU

the

1241,

maintain order

and

by ensuring that unpleasant consequences

flowed from such misbehavior.

787 F.2d

state

1243-44 (8th

withholding

personal

mail

unpleasant,

and thereby

See, e.g., Little

___ ____ ______

Cir.

is to

discourage

v. Norris,
______

1986) ("The

make

purpose

punitive

improper

of

isolation

behavior

and

____________________

his equal
list

protection rights.

comparing

the

DSU and

As noted above,
DDU

suggests

significant differences between the two units.

DDU inmates do not

DuPont's own

that there

Since DSU and

seem to be similarly situated,

seems unlikely to be successful.

-8-

are

his claim

promote

security within

privileges of

the prison.").

DDU inmates, which must

Given

the limited

be earned, defendants

may have had few other alternatives for inducing persistently

disobedient

withdrawal

given

inmates like

of mail

DuPont to

privileges

his mail and permitted to

the strip cell.

Moreover, the

was temporary.

DuPont

was

write letters after leaving

His confinement was also relatively short in

duration, lasting

11

content

applying

neutral,

behave.

days or

to

less.

The

restriction

all

incoming

and

was

outgoing

correspondence.

DuPont was permitted attorney visits and his

attorney could keep him informed about pending cases.

not asserted

the actual loss

____

of any cause of

He has

action due to

his inability to write letters or draft legal documents while

confined in the strip cell.

Incoming Stamps.
________________

from DuPont's

the receipt

inmates

incoming mail,

of

stamps.

stamps

may

the mail

removed stamps

rule prohibiting

and requiring

the prison canteen.

have enough money in

But his

to

his

See 103 Code

his prison account

to

to send him

prison account

Mass. Regs.

DDU

DuPont avers

correspondents who desire

donate funds

purpose, instead.

citing a DDU

stamps through

to buy stamps at

that he did not

buy

Defendants have

for

that

405.16.

The

___

prison also provides some free

postage for personal mail and

unlimited postage

for necessary mail to

attorneys.

481.10.

Id.
___

court officials and

Under the circumstances,

we find

-9-

no constitutional

violation.

See Kaestel v.
___ _______

Lockhart, 746
________

F.2d

1323, 1325 (8th

prohibit the

in order to

Cir. 1984) (per

curiam) (prison could

receipt of postal stamps

through incoming mail

prevent inmates from

using them as a

source of

currency outside their regular prison accounts; inmates could

obtain

funds

pre-stamped envelopes

were

available

for

from the

postage

commissary and

for

indigent

some

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.

___________________________

defendants'

seizure

of

legal

DuPont

materials

objects

from

his

to

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

materials

to

keep

in

were removed and placed

his

in storage.

property limit regulation expressly

more than 1 cubic

foot of legal

103 Code Mass. Regs.

materials exceeding

cell before
______

The prison's

permitted him to keep no

materials in his cell,

see
___

403.09, and so defendants could remove

that limit.

The

regulation in question

is not

arbitrary or unreasonable simply

prison

system has a more generous property limit.

v. Rollins, 749 F.
_______

excess

because the federal

Supp. 1403, 1407-8 (D. Md.

924 F.2d 1053 (4th Cir. 1991) (table).

See Savko
___ _____

1990), aff'd,
_____

Finally, defendants'

-10-

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.
_______________

against

defendants'

use of

DuPont

chemical

seeks

an

agents when

injunction

removing

excess legal materials from his cell, alleging that they have

used

excessive

multiple

force and

chemical

occasions from 1991 to

agents

1994.

against him

on

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

jury that excessive force was used against him on February

14,

1994, as he asserts,

through a damages award.

(the

availability of

preliminary

but that injury

See Cohen, supra, 991 F.2d

___ _____ _____

adequate damages

injunctive

could be remedied

relief).

occasions when chemical agents

may justify

On practically

all

at 902

denying

other

were used against him, DuPont

reported no injuries and medical personnel observed none.

a few occasions, he

officials

reported old or minor injuries.

On

Prison

sought medical authorization before using chemical

agents

on DuPont

their use.

and his

We conclude,

eyes and

face were

washed after

therefore, that defendants have not

____________________

6DuPont also
6

sought

the return

removed from his cell in July 1994.

materials

to

obtain

the

of particular

He may review his stored

particular

however, but has declined to do so.

-11-

materials

documents

he

wants,

systematically

used

excessive

force

or

improperly

used

chemical agentsso asto justify preliminaryinjunctive relief.7

7

Use of Strip Cells.

_____________________

conditions

confined

in the

in

1994

assuming that

DuPont

strip cell in

which he

violated

Eighth

the

the conditions he describes

alleges

that

the

was occasionally

Amendment.

Even

were sufficiently

serious deprivations to establish a constitutional violation,

DuPont

has

not

shown

facts

to

defendant knew

of and disregarded

safety.

he has

Thus,

indifference"

not shown

to warrant

indicate that

any

an excessive risk

the requisite

any relief,

at

named

to his

"deliberate

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)

in

(denying injunctive relief to

strip cell

since

defendant had known

he had

not

an inmate confined

shown

that any

named

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

discovery orders are not

of

final

110.13[2],
does

judgment.

against him.

We

note that

generally appealable prior to entry

See
___

Moore's Federal Practice

__________________________

at 132 (2d ed. 1996). In addition, our affirmance

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

Therefore,

we

decline

to

failure to

compel discovery

preliminary
consider
in this

the

injunctive relief.
district

appeal.

See
___

court's
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

injunctive relief did

on which

the

denial of

preliminary

not depend where the decision

was not

immediately appealable).

-12-

his

health

conditions

or

safety).

in the

Harrington, but

strip

DuPont

filed

cell with

not until after

_____

a grievance

defendant DDU

his release from

about

Director

the strip

cell.

Transfer of Materials to District Court.

_______________________________________

grant

DuPont's request

that we

send certain

We hereby

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.

__________________________________________________________

-13-