Professional Documents
Culture Documents
February 7, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-2119
__________________
__________________
Per Curiam.
__________
denial of his
Michael
Kevin
DuPont
appeals
the
We
affirm.
I.
Background
__________
DuPont
state prison in
rights
action
personnel
Massachusetts.
against
various
at the
MCI-Cedar Junction
In 1992, he
Department
filed a
of
civil
Corrections
He alleged that
excessive
is incarcerated
force against
him, seizing
rights by using
his legal
materials,
care,
and
threatening
to
preliminary
injunctive
in a
locked letterbox,
him, and
confine
relief,
had failed
had gassed
claiming
that
to deposit
U.S.
to timely
in
had seized or
him
deliver
legal
excessive force
of those materials.
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
denied
abuse of discretion or
See Cohen
___ _____
Cir. 1993).
error here.
Preliminary
on
claims
the
merits
irreparable
granted.
of
his
harm if preliminary
See id.
___ ___
F.2d 888,
(describing
or
that
he
to succeed
would
injunctive relief
the
suffer
were not
factors considered
in
that
he
was likely
defendants had
to
succeed
on
his claim
that
by requiring him
deposited those
has cited no
envelopes in a
state law
locked letterbox.
or regulation
that mandates
impaired by
the inspection
liberty interest
requirement.
See Rodi
___ ____
v.
context,
a state
establishes a
protected
liberty
interest
where
laws
and
regulations
containing
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to
did
the
court
err
in
denying
preliminary
mail had
timely
not
not been
delivered to him.
prove
"a
obstruction."
pattern
On
a few
delivered to
DuPont
of
him or had
occasions, he
this case
service receipts
had
been served
federal
Although he did
apparently received
not been
complaint in
certain defendants,
he
did
He did not
allege or proffer
receipt of
ongoing litigation
affected or
Since
DuPont was
would
not
systematically deprived
deprivations
alleged
obviously
did
not
affect
his
See Sowell
___ ______
documents was
constitutional
loss of
not inherently
deprivation
prejudicial, to
plaintiff had
to show
show a
that the
of his
-4-
that
because he
the future.
preliminary
injunctive
would likely be
relief
subjected to excessive
warranted
force in
in
Junction
officials, had
ordered
extraction team
and on another
evidence
to
occasion in 1992.
support his
claim that
But he submitted no
such orders
were ever
not show
continue
to
extraction
averred
in
real and
be
subjected
team uses
of
an affidavit
immediate
to
threat that
excessive
evidence to
extraction team
against
future
DuPont
that
been
subjected
court
he
had
to
show
that
the
to
particular
been ordered by
also
or had
in
would
him.
members who
him on that
the
force
he
force against
him; thus, he
force
to use excessive
superiors to
he did not
use
show that it
was likely that they would use excessive force against him in
future uses of force.
in
team members
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Compare
_______
Rizzo
_____
v.
Goode,
_____
423
U.S.
362,
371-72
(1976)
submitted
evidence
linking
specific
the individual
instances
of
not been
of
preliminary
department
and
injunction
remanding
against
because
merely
misconduct,
reflecting
departmental
amended 1/12/93);
Supp. 398,
but a
pervasive
policy")
contrast Cohen
________ _____
county sheriff's
plaintiffs
(reversing
had not
misconduct
opinion,
v. Coahoma County,
______________
yet
as
805 F.
(preliminary injunction
county jail
prisoners in
order to
coerce information
sought to
against the
To the
officials from
his cell,
he
had no
right to
such
relief.
See
___
and his
-6-
those
cases
about
See
___
id. (a
___
conditional
restriction
must show
actual injury
materials
access
in court.2
to
the
defendants had
courts).
plaintiff complaining
on his
access
to his
Although
to
ability to
DuPont
alleged
legal
gain
that
seeking those
preliminary
injunctive
defendants
of deadlines
those
transcripts were
appeal
was later
transcripts
at the
relief,
that
in
or
his criminal
necessary.
dismissed
to believe
the
an
injunction, or
had
sought
informed
appeal for
his
which
criminal
of prosecution,
that
absence of
he
Although
for want
time he
irreparable harm in
that any
constitutional
deprivation of
properly
(affirming
legal materials
denied
preliminary
summary
judgment
relief.
defendants
the court
See
___
id.
___
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.
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plaintiff had
____________________
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.
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