Diamontiney v. Borg
| Decision Date | 04 June 1990 |
| Docket Number | 89-15250,Nos. 88-1938,s. 88-1938 |
| Citation | 918 F.2d 793 |
| Parties | Edward DIAMONTINEY, Plaintiff-Appellee, Cross-Appellant, v. Robert G. BORG, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Constance L. Picciano, Deputy Atty. Gen., Sacramento, Cal., for defendant-appellant, cross-appellee.
Edward Diamontiney, Represa, Cal., pro se.
Appeal from the United States District Court for the Eastern District of California.
Before NELSON and TROTT, Circuit Judges, and STEPHENS, ** District Judge.
The gist of this case is the refusal of staff at Folsom Prison to acknowledge plaintiff Diamontiney's preferred surname: Diamontiney. Due to this refusal, Diamontiney did not receive mail, including important legal mail from federal district court. Mail sent to him was returned undelivered because it was not addressed to Edward Dreamer, the name under which Diamontiney was first committed to prison. Prison officials claim their refusal was mandated by an unforgiving computer program. As could have been predicted, Diamontiney brought suit pursuant to 42 U.S.C. Sec. 1983, claiming in essence a purposeful denial of access to the courts. In connection with this suit, the district court--after extensive hearings on the issue--granted Diamontiney's request for a preliminary injunction and ordered defendant Borg "to substitute the entry of Diamontiney/Dreamer, C-63046 for Dreamer C-63046 in the mailroom computer program or otherwise insure that plaintiff receives the process of this court."
Later, on October 14, 1988, Diamontiney alleged to the district court that mailroom staff were returning his outgoing legal mail to him with instructions to use his prison commitment name only. He moved that defendants be held in contempt for violating the preliminary injunction. In his opening brief, he states that he provided the district court with three separate exhibits illustrating that defendants returned his mail to him with instructions that he use only his commitment name.
The district court found that defendants had "taken all reasonable steps to ensure plaintiff's access to the courts" in compliance with the previous order, and denied Diamontiney's motion for contempt proceedings. The court noted Diamontiney "does not assert that any mail which was returned to him, based on his use of the name Diamontiney, was again rejected after resubmitting it."
Both parties appeal the interlocutory orders of the district court. Prison warden Robert Glen Borg and his fellow state defendants (collectively referred to as "defendants") appeal the court's order granting state inmate Edward Diamontiney the preliminary injunction. Diamontiney appeals the district court's subsequent refusal to hold defendants in contempt for allegedly failing to comply with the preliminary injunction. We have jurisdiction under 28 U.S.C. Sec. 1292(a)(1) (1988), and we affirm. 1
"Review of a ruling on a motion for a preliminary injunction is 'very limited.' " Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985) (quoting Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521, 523 (9th Cir.1984)). A grant of a preliminary injunction will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous factual findings. Id.; Dollar Rent a Car v. Travelers Indem., 774 F.2d 1371, 1374 (9th Cir.1985).
We review for abuse of discretion a district court's decision whether to hold a party in contempt of a court order. United States v. Grant, 852 F.2d 1203, 1205 (9th Cir.1988); Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir.1984).
" 'To obtain a preliminary injunction, a party must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [the movant's] favor.' " Oakland Tribune, 762 F.2d at 1376 (quoting Apple Computer, 725 F.2d at 523). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Id. Defendants contend the district court incorrectly applied this standard.
Defendants argue that Diamontiney was required to show "actual injury or prejudice to potential or pending litigation." We reject this contention. Rather, as commentators have noted, "the injury need not have been inflicted when application is made or be certain to occur; a strong threat of irreparable injury before trial is an adequate basis." 11 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2948 at 437-38 (1973) (footnote omitted). Requiring a showing of actual injury would defeat the purpose of the preliminary injunction, which is to prevent an injury from occurring. 2
At the hearing convened to discuss Diamontiney's request of a preliminary injunction, the court expressed frustration with its inability to communicate with him. When the court observed that Diamontiney's motion might be better considered with another pending case (87-1369), defendants' counsel stated that "no defendants have yet been served in that action." The court responded:
You know why the defendants haven't been served, don't you? Because a letter from the Marshall [sic] to Mr. Diamontiney which contained forms for service was returned by the mail which is presumptively the defendants--that's the situation in that case. I was sorry to see you here this morning, because, frankly, I thought this was sort of a dumb problem when it came up. The difficulty from where I sit, is not so much that it's impeding Mr. Diamontiney's access to the courts, although that's obviously the claim he has, but the problem is it's impeding my access to Mr. Diamontiney.
The court also expressed some suspicion as to why only Diamontiney, who happened to be suing numerous prison officials, including members of the mailroom staff, should have had this problem?
[V]iewed from the perspective of where this Court is sitting, so far I think we've been quite fortunate in maintaining good, professional communications with most of the prisoners who have litigated in this Court and with your office. Suddenly, without any particular explanation, we start getting a bunch of stuff back here from someone who has been historically quite good about keeping us posted where he is. This is not the situation with all the litigants here, of course. Also, this is apparently the only case in my case load of about seven hundred and fifty cases where this problem developed.
Under the circumstances, the finding that Diamontiney faced irreparable harm is well supported.
Defendants also argue that "[a]ny irreparable harm which the plaintiff might have been in danger of suffering was of the plaintiff's own making" because he did not properly inform the courts of the need to put the name "Dreamer" on correspondence. The district court found, however, that defendants' policy of returning mail marked "Diamontiney," rather than any actions on Diamontiney's part, threatened irreparable harm. As this finding was not clearly erroneous, we uphold it on appeal. See Dollar Rent a Car, 774 F.2d at 1374.
Defendants also contend the district court erred because Diamontiney did not demonstrate probable success on the merits of his underlying civil rights suit. As stated above, the general test envisions an assessment of both the degree of irreparable harm and the probability of success on the merits. See Oakland Tribune, 762 F.2d at 1376.
Diamontiney's preliminary injunction motion was considered in conjunction with one of nine cases Diamontiney had pending before the district court. Because the practices challenged by Diamontiney affected Diamontiney's ability to litigate, his preliminary injunction motion could have been considered in conjunction with any of those cases. Under these unusual circumstances, where the preliminary injunction relates to the movant's access to the court, and where the injunction could have been considered in conjunction with any one of numerous cases filed by the movant, we hold the district court did not err by failing to consider the merits of the underlying suit.
We stress, however, that we are not reviewing a decision on the merits of Diamontiney's claim regarding his right to use the name "Diamontiney." 3
Contempt Motion
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