Porcher v. Massachusetts Dept. of Corrections
| Decision Date | 23 September 1993 |
| Docket Number | No. 92-2410,92-2410 |
| Citation | 7 F.3d 218 |
| Parties | NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Bertell PORCHER, JR., Plaintiff, Appellant, v. MASSACHUSETTS DEPT. OF CORRECTIONS, et al., Defendant, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
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.
Before Selya, Boudin and Stahl, Circuit Judges.
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 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.
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 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 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...
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Cavitt v. Mass. Dep't of Corr.
..."involves no identifiable interest in liberty or property as contemplated by the fourteenth amendment". Porcher v. Mass. Dep't of Corr., 7 F.3d 218(Table), 1993 WL 372748, at *2 (1st Cir. Sept. 23, 1993).ORDER For the foregoing reasons, plaintiff's motion for reconsideration (Docket No. 31)......