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Emery v. Premo

United States District Court, D. Oregon

September 30, 2014

JEFF PREMO, et al., Defendants.


MICHAEL H. SIMON, District Judge.

This prisoner civil rights case comes before the court on plaintiff's Motion for Preliminary Injunction (#40) and his Second Motion for Preliminary Injunction (#42). In these Motions, plaintiff alleges that defendants are: (1) denying him meaningful access to the law library at the Oregon State Penitentiary ("OSP"); and (2) refusing to provide him with his requested medical treatment for Hepatitis C. Plaintiff asks the court to order defendants to immediately provide him with additional access to legal materials within OSP as well as his requested course of medical treatment for his Hepatitis C infection.


"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). A plaintiff may also qualify for a preliminary injunction by showing that there are serious questions going to the merits of his claim and that the balance of hardships tips sharply in his favor, so long as the other Winter factors are also met. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127. 1134-35 (9th Cir. 2011). A request for a mandatory injunction seeking relief well beyond the status quo is disfavored and shall not be granted unless the facts and law clearly favor the moving party. Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994).


I. Access to Courts

Incarcerated individuals have a fundamental constitutional right to access the courts in order to litigate the legality of their detention or challenge the conditions of their confinement. Lewis v. Casey, 518 U.S. 343, 354-55 (1996). A state must ensure that inmates have a "reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Id (citing Bounds v. Smith, 430 U.S. 817, 825 (1977).

Plaintiff alleges that defendants have intentionally obstructed his access to legal materials at OSP as a retaliatory measure in response to his grievances against them and this lawsuit. He contends that defendants will not permit him to check out legal books for use in his cell, whereas he believes death row inmates at OSP are afforded this privilege. He asks the court to immediately grant him additional law library access, stop any further retaliation, and award $50, 000 in damages for past violations.

Plaintiff is housed within the Behavioral Health Unit ("BHU"), a specialized unit of the Special Management Housing ("SMH") building at OSP. Declaration of Dawn Lee-Parks, p. 2. Inmates within the BHU are not deemed fit to mix with general population inmates and, thus, are prohibited from using the main OSP law library. Id. BHU inmates nevertheless retain access to legal materials insofar as they can:

access law library services by completing a legal request form and listing the services they require. BHU inmates have access to a computer located in the SMH building computer room where the inmate can perform legal research; request copies of case law or read legal books in a satellite room or computer room; and, they can request to speak with an inmate legal assistant by telephone.

Id (footnote citations omitted).

Although plaintiff correctly asserts that he is not permitted to check out books from the law library for use in his cell, this prohibition appears to extend to all inmates due to the limited supply of books and intention that the books benefit all inmates. Id at 4. In addition, this particular prohibition does not violate plaintiff's right to access the courts given the other resources available to him.[1] Indeed, the SMH building has a room designated as a satellite law library which plaintiff can use for a maximum of four hours per week "and more if he needs additional time." Id at 3. The record in this case reveals, however, that plaintiff did not request any time in the satellite law library in either July or August. Id; Attachment 6.

While plaintiff has asked to use the computer room on numerous occasions, he has frequently missed those scheduled appointments or shown up late for them. Id. For example, plaintiff was scheduled to use the computer on July 30, 2014 from 11:00 a.m. to 1:00 p.m., and again from 1:00 p.m. to 2:00 p.m. but he refused all scheduled times. Id. He scheduled the same times for August 5, 2014, but again refused all scheduled times. Id.

Although plaintiff is not entitled to check out legal books for in-cell review in the BHU, the record before the court reveals that plaintiff has adequate law library access but has not availed himself of the services to which he is entitled. Because plaintiff's likelihood of success on the merits of his access to courts claim ...

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