
USCA1 Opinion

	




          February 7, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2119                                            MICHAEL KEVIN DUPONT,                                Plaintiff, Appellant,                                          v.                           LARRY E. DUBOISE, Commissioner                                 Of Corrections, Et Al.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Michael K. Dupont on brief pro se.               _________________               Nancy Ankers White, Special Assistant Attorney  General, and               __________________          David J. Rentsch, Counsel, Department of Correction, on brief for          ________________          appellees.                                   __________________                                  __________________                      Per Curiam.    Michael  Kevin  DuPont  appeals  the                      __________            denial of his  motions for preliminary injunctive relief.  We            affirm.                      I.  Background                          __________                      DuPont  is incarcerated  at the  MCI-Cedar Junction            state prison in  Massachusetts.   In 1992, he  filed a  civil            rights  action  against  various  Department  of  Corrections            personnel  and others, seeking damages and injunctive relief.            He alleged that  defendants had violated his  rights by using            excessive  force against  him, seizing  his legal  materials,            denying him attorney visits and other privileges, denying him            medical   care,  and   threatening  to   confine  him   in  a            disciplinary unit, among other things.  After filing suit, he            sought   preliminary   injunctive   relief,   claiming   that            defendants were interfering  with his right  to deposit  U.S.            mail  in a  locked letterbox,  had failed  to timely  deliver            incoming legal mail,  had seized or  not delivered his  legal            materials to  him, and  had gassed  and used  excessive force            against him  in connection with seizures  of those materials.            The district court denied his motions.1                      II.  Discussion                           __________                                            ____________________            1.  The district  court also  denied DuPont's request  for an            injunction -- ordering defendants to pay the postage for  his            legal mail  whenever his own  funds were insufficient  -- and            his request  for appointment  of counsel.   In  his appellate            brief,  DuPont did not address  those issues, and  so we deem            them  waived.   See  Playboy  Enterprises  v. Public  Service                            ___  ____________________     _______________            Comm'n,  906 F.2d 25, 40  (1st Cir.), cert.  denied, 498 U.S.            ______                                _____________            959  (1990).     In  any  event,   exceptional  circumstances            warranting the appointment of counsel do not exist here.  See                                                                      ___            Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986).            _______    __________                      In  determining whether the district court properly            denied  preliminary injunctive relief,  we review the court's            decision for manifest  abuse of discretion or  clear error of            law or fact.   See Cohen  v. Brown University, 991  F.2d 888,                           ___ _____     ________________            902 (1st  Cir. 1993).  We find no such abuse of discretion or            error here.  Preliminary  injunctive relief was not warranted            because DuPont failed to  show that he was likely  to succeed            on  the  merits  of  his  claims  or  that  he  would  suffer            irreparable  harm if preliminary  injunctive relief  were not            granted.    See id.  (describing  the  factors considered  in                        ___ ___            evaluating a request for preliminary injunctive relief).                      The court  correctly determined that DuPont had not            shown  that  he  was likely  to  succeed  on  his claim  that            defendants had  violated his federal rights  by requiring him            to show line officers the outside of envelopes he was mailing            before he  deposited those  envelopes in a  locked letterbox.            DuPont  has cited no  state law  or regulation  that mandates            that defendants not inspect the outside of his mail before he            deposited it, sealed, in the locked letterbox, and so did not            demonstrate a  probability that any federal  liberty interest            was  impaired by  the inspection  requirement.   See Rodi  v.                                                             ___ ____            Ventetuolo, 941 F.2d 22, 25 (1st Cir. 1991) (stating that, in            __________            the correctional  context,  a state  establishes a  protected            liberty  interest  where   laws  and  regulations  containing                                         -3-            mandatory language restrict  prison officials' discretion  to            undertake the challenged action).                      Nor  did  the  court  err  in  denying  preliminary            injunctive relief with respect to DuPont's claim that certain            legal  mail had  not been  delivered to  him or had  not been            timely  delivered to him.  DuPont  acknowledged that he could            not   prove   "a   pattern  of   intentional   federal   mail            obstruction."   On  a few  occasions, he  apparently received            legal mail later than he thought he should.   Although he did            not receive  service receipts  showing that the  complaint in            this case  had  been served  on  certain defendants,  he  did            receive photocopies of the receipts which a U.S. Marshal sent            to him.   He did not  allege or proffer  any evidence showing            that any late  receipt of  legal mail had  affected or  would            affect  ongoing litigation  matters.   Since  DuPont was  not            systematically deprived  of his legal mail,  and the isolated            deprivations  alleged  here  obviously  did  not  affect  his            ability to pursue his court actions, we sustain the denial of            preliminary injunctive relief.  See Sowell  v. Vose, 941 F.2d                                            ___ ______     ____            32, 35 (1st Cir. 1991) (since prison officials' loss of a few            legal  documents was  not inherently  prejudicial, to  show a            constitutional  deprivation  plaintiff had  to show  that the            loss of  those particular documents  had deprived him  of his            ability to participate meaningfully in the legal process).                                         -4-                      The court correctly determined that  DuPont had not            shown  that  preliminary  injunctive  relief   was  warranted            because he  would likely be  subjected to excessive  force in            the future.  In seeking preliminary relief, DuPont relied  in            part on conclusory allegations  in his complaint that certain            defendants, who are high ranking Department of Corrections or            MCI-Cedar  Junction  officials, had  ordered  extraction team            members to use excessive force on him on several occasions in            1991  and on another  occasion in 1992.   But he submitted no            evidence  to  support his  claim that  such orders  were ever            issued, and so failed to show that defendants had some policy            or persistent practice  of using force against  him; thus, he            did  not show  a  real and  immediate  threat that  he  would            continue  to  be  subjected  to  excessive  force  in  future            extraction  team uses  of  force against  him.   DuPont  also            averred  in  an affidavit  that  he  had  been  subjected  to            excessive force on January 12, 1993.   But he did not present            any  evidence to  the  court  to  show  that  the  particular            extraction team  members who  allegedly used excessive  force            against  him on that  date were predisposed  to use excessive            force against him  or had  been ordered by  superiors to  use            excessive  force against him; thus,  he did not  show that it            was likely that they would use excessive force against him in            future uses of force.  Moreover, the extraction  team members            in  question have not yet been named defendants in this suit.                                         -5-            Compare  Rizzo   v.  Goode,  423  U.S.   362,  371-72  (1976)            _______  _____       _____            (reversing grant of injunction in part because plaintiffs had            not   submitted  evidence   linking  specific   instances  of            individual police officer misconduct  with any plan or policy            of defendants;  the individual  police officers had  not been            named as defendants in the suit); see Thomas v. County of Los                                              ___ ______    _____________            Angeles, 978 F.2d  504, 508, 509  (9th Cir. 1992)  (reversing            _______            grant  of  preliminary  injunction  against  county sheriff's            department  and  remanding  because  plaintiffs  had not  yet            established that they were likely to  succeed in showing "not            merely  misconduct,  but a  pervasive  pattern of  misconduct            reflecting  departmental  policy")   (majority  opinion,   as            amended 1/12/93);  contrast Cohen  v. Coahoma County,  805 F.                               ________ _____     ______________            Supp. 398,  405-06 (N.D. Miss. 1992)  (preliminary injunction            granted where sheriff had testified that he would continue to            whip  county jail  prisoners in  order to  coerce information            about escape attempts).                      Finally, preliminary injunctive relief  against the            seizure  of DuPont's legal files  was not warranted.   To the            extent  that DuPont  sought to  enjoin prison  officials from            enforcing reasonable limits on the amounts of legal materials            kept in  his cell,  he  had no  right to  such  relief.   See                                                                      ___            Sowell, 941 F.2d at 35.  Nor did DuPont show that defendants'            ______            retention of specific legal materials from this case  and his            federal habeas case actually threatened his ability to pursue                                         -6-            those  cases  in court.2   See  id. (a  plaintiff complaining                                       ___  ___            about  a  conditional  restriction  on his  access  to  legal            materials  must show  actual injury  to his  ability to  gain            access  to  the  courts).     Although  DuPont  alleged  that            defendants had  withheld his state criminal trial transcripts            since November 10, 1992, he submitted no evidence that he was            actively  seeking those  transcripts  at the  time he  sought            preliminary  injunctive  relief,  or  that  he  had  informed            defendants  of deadlines  in  his criminal  appeal for  which            those  transcripts were  necessary.   Although  his  criminal            appeal  was later  dismissed  for want  of prosecution,  that            occurred nearly five months later.  Since there was no reason            to believe  that DuPont would suffer any  irreparable harm in            the  absence of  an  injunction, or  that any  constitutional            deprivation of  legal materials  was taking place,  the court            properly  denied  preliminary  injunctive  relief.   See  id.                                                                 ___  ___            (affirming  summary  judgment  for  defendants   because  the                                            ____________________            2.  It would have been hard to make such a showing since both            cases  were   pending  before   the  very  court   which  was            considering DuPont's  preliminary injunction motions.   Being            fully  informed  of  DuPont's  claim  that   defendants  were            withholding  necessary  court  papers, the  court  would  not            likely have enforced any  deadlines against DuPont.  Although            DuPont  alluded to his  inability to  file his  first amended            complaint,  defendants submitted an affidavit stating that he            had  rejected  an opportunity  to go  to  a visiting  room to            select legal materials he wished to have in his cell.  Papers            DuPont   filed   on  appeal   support   that  representation.            Accordingly, DuPont's  inability to obtain his  first amended            complaint would  seem attributable to  his own  recalcitrance            and not to defendants.                                         -7-            plaintiff had  not articulated a causal  relation between the            deprivation of legal materials and the dismissal of his state            appeal).                      Affirmed.3                                   _________                                            ____________________            3.  DuPont has filed numerous motions in this appeal.  To the            extent that we  have not  already addressed  them in  earlier            orders,  we hereby deny them, either  because they are mooted            by  this decision, or because  they should be  brought in the            district court in the first instance.                                         -8-
