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[NOT FOR PUBLICATION]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,

Massachusetts prisoner currently serving his sentence

Federal Prison in
was

for three

to

Marion, Illinois.
five

years

However, in

1990, while still in

additional

consecutive sentences

four to

five years

dangerous

officer, respectively.

assault and

in the

and

entering.

prison, appellant received

of nine

to ten

battery by
battery on

years and
means of

a corrections

In 1991, appellant was transferred to

the Federal Bureau of Prisons which

placement.

His original sentence

for breaking

for assault and

weapon and

is

When appellant

designated Marion as his

arrived at Marion, federal prison

officials refused to accept the approximately four cubic feet

of

legal materials

which he

materials related both to an

had brought

with him.

appeal of his criminal sentence

and various civil actions appellant had filed or

file.

The papers

that

intended to

were returned to Massachusetts and

storage at M.C.I. Cedar Junction.

appellant

These

it

will

are in

The state has indicated to

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
the

alternative,

sought a temporary restraining

a

preliminary

injunction

order or, in
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)

injunction

is

the potential
not

granted;

between the parties; and

Brown University, 991
________________

for irreparable harm

(3) the

of

(4) the public interest.

F.2d 888,

movant's likelihood of

balance

902 (1st Cir.

if the
interest
Cohen v.
_____

1993).

success is "particularly

The

influential

in the preliminary injunction calculus."

Id. at 903 (citing

__

cases).

or

Absent a

overturn

a denial

clear
of a

error of

law

fact, we

preliminary injunction

only

will
for a

"manifest abuse of discretion." Id. at 903.

__
Discussion
__________
Appellant
prison

asserts that

system was

provides that

his

"illegal."

transfer

to

the

federal

However, Massachusetts

"[t]he commissioner may, with

law

the approval of

the appropriate officials of the federal government, transfer

any prisoner

sentenced to state

prison to any

appropriate

correctional

institution

supervised by

the federal government within

-3-

available or

maintained

and

the confines of

continental

United States."

Federal due

process rights

since

it involves

property as

no

Mass.

do not attach

contemplated by

inmate

liberty
from

facility.

to this

identifiable interest

prison

Sisbarro
________

v.

transfer

in liberty

481 (1972).

interest involved
state

97A.

the fourteenth amendment.

Morrissey v. Brewer, 408 U.S. 471,

_________
______
federal

Gen. L. ch. 127,

to

in
an

the

or
See
___

There is

no

transfer of

an

out-of-state

federal

Warden,
Massachusetts State
______________________________

Penitentiary, 592 F.2d 1, 4 (1st Cir.), cert. denied 444 U.S.

____________
____ ______
849 (1979).
prison

Nor does a

implicate

Massachusetts

state

transfer from a state

any

liberty
law

or

Commissioner of Correction, 409

___________________________

to a federal

interest

created

by

regulation.

Harris
______

v.

Mass. 472, 478,

567 N.E.2d

906, 910-11 (1991).

Appellant also asserts that the transfer deprived him of
effective access to
a

the Massachusetts courts.

constitutional right of access

Smith,
_____

430

U.S.

817,

821

An inmate has

to the courts.
(1977).

Access

Bounds v.
______
must

be

"meaningful," id, at 823, and correction authorities bear the

__
burden

of

demonstrating

constitutionally

that

adequate

access,

Constitutionally adequate access

provision of

146

(1st Cir.

law.

1989).

have
id.,
__

may be

an adequate law library

from persons trained in the

145,

they

provided
at

either through

the

or adequate assistance

Blake v. Berman,
_____
______

An

828.

inmate

877 F.2d

does not

have

-4-

constitutional
officials

right
retain

constitutionally

to

both.

Id.
__

responsibility

adequate

access

transferred to federal custody.

to

State

correction

for

providing

state

prisoners

Rich v. Zitnay, 644 F.2d 41,

____
______

43 (1st Cir. 1981).

Appellant
adequate legal
library.

alleges that
assistance and

the

transfer

of adequate

deprived him

of

access to a

law

As to the first, he alleges Marion officials do not

provide
approval
he

legal

assistance

and

that

an

inmate

before he can call his attorney.

must

seek

As to the second,

alleges that he has no direct access to Massachusetts law

books.
We find that appellant
to

succeed

appears

on the

to

have

providing

appellant

According

to

Supervisor of

the

has not shown that he

merits
met

of

its

this claim.

affidavit

access
of

Education at Marion,

Marion contains Massachusetts state

an

annotated

edition

of

Massachusetts

cases,

and

Massachusetts

state

Massachusetts

constitutional

adequate

to a

Richard

is likely

obligation
law

library.

Williams,

the main law

by

the

library at

law materials--including

Massachusetts

reports

of

appropriate digests--provided

by

authorities.1

law,

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

library.
time

However,

which "are

delivery

an inmate

on a

Holidays."

may be kept in

can request three

answered within

is provided

Sunday and

and

not permitted direct access to

24

hours of

daily basis

(Williams' affidavit).

these

"unique disciplinary

procedures will

and

Marion, this library access

to meet

security

F.2d 589,

receipt and

These books

605-06 (7th

Cir.

checked out over ninety

four hours

be granted
Id.
__

considerations"

Caldwell v.
________

1986).

at

its face

Miller, 790
______

Appellant already

volumes in a six month

to

In light of

plan has been found on

constitutional standards.

excluding Saturday,

inmates with demonstrated court deadlines."

the

books at

an inmate's possession for twenty

"[e]xceptions to

the main

has

period under

this procedure, including

several dealing with Massachusetts

law.

case like those wherein this court

This is thus not a

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
Cepulonis
_________

site location with

v. Fair, 732
____

unrealistic to expect
what

specific citations.

F.2d 1, 4 (1st
a prisoner to know

materials he needs to

Cir. 1984) ("[i]t is

in advance exactly

consult"); Rich, 644

____

(requirement of "precise citations

. . .

See
___

F.2d at 43

obviously

a Catch

____________________
Massachusetts Reports, Volumes 360-399;

Massachusetts Digest

2d, Volume
Court.

19 (Paupers-Records); and

Massachusetts Rules of

-6-

22").

Finally, appellant has direct access to a smaller law

library

which contains

basic

legal material

but does

not

legal papers

are

contain Massachusetts material.

Finally, appellant

asserts that

being improperly withheld from

the federal
bring

authorities at

him.

Appellant has

state authorities that his papers

request permission

. has

nothing

authorities

the

record

have

been so

to

been informed by

are being held in

from the federal

authorized Appellees
in

allow him

storage

papers to be forwarded he needs to

Although appellant asserts that

.

Appellant concedes that

Marion would not

the papers with him.

and that in order for the

his

authorities at

Marion.

"a U.S.P. Marion counselor .

to forward"

indicates
informed

these materials,

that
or

permission from Marion has been obtained.

Massachusetts

even that
There is

official
also no

indication in the record that Massachusetts would not deliver

the

papers once

it

had received

authorities would accept delivery.

information that

federal

We

find

determination
unlikely
of

no
by

manifest
the

abuse

district

of
court

discretion
that

appellant

to succeed on the merits of his claims.

appellant's

request

for

affirmed.
________

-7-

preliminary

in

the
is

The denial

injunction

is