
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               September 23, 1993  [NOT FOR PUBLICATION]                              UNITED STATES COURT OF APPEALS                                   FOR THE FIRST CIRCUIT                                   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-
