
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                         -2-            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.                            ______                                         -3-                      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.                                         -4-            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                                         -5-            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.                                         -6-            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                                         -7-                      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.                                         -8-            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                        ___                                         -9-            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'                                         -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.    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.                                         -11-            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).                                         -12-            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.            __________________________________________________________                                         -13-
