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Underwood v. Rochester

United States District Court, D. Oregon

July 26, 2018

DENNIS BURTON UNDERWOOD, Plaintiff,
v.
JANELL ROCHESTER, MARK NOOTH, WILLIAM KING, MAUREEN ROSSI, and BRAD CAIN, Defendants.

          OPINION AND ORDER

          MARPO A. HERNANDEZ UNITED STATES DISTRICT JUDGE

         Plaintiff Dennis Burton Underwood, an incarcerated prisoner proceeding pro se and in forma pauperis, filed this action against defendants Robert Lampert and Janell Rochester on June 28, 2016. Underwood amended his complaint effective August 8, 2016, adding as additional defendants Mark Nooth, Erik Johansen, and Jua Osman. Underwood amended his complaint a second time effective June 14, 2017, abandoning his claims to the extent alleged against Lampert, Johansen, and Osman, and adding as additional defendants William King, Maureen Rossi, and a fictitiously named Doe defendant. Effective July 25, 2017, Underwood amended his complaint a third time, naming Brad Cain as a defendant in lieu of the Doe defendant. Underwood amended his complaint a fourth time effective August 17, 2017. By and through his fourth amended complaint, Underwood alleges that while housed at the Snake River Correctional Institution ("SRCI"), he has been unduly restricted from accessing the SRCI law library and/or other legal research resources pursuant to SRCI policy as enforced by defendant Rochester, that after he grieved SRCI's policy of restricting inmate access to the law library Rochester began harassing and threatening him in retaliation, that after he grieved Rochester's retaliatory conduct King threatened him with bodily harm, and that in retaliation for his grievances Rossi deliberately caused Underwood to miss a filing deadline in his pro se efforts to appeal the conviction that resulted in his incarceration at SRCI by preventing him from copying and mailing his opening appellate brief, with the result that his filing deadline had to be extended by 27 days. Arising out of the foregoing, Underwood appears to allege the liability of defendants Nooth, Cain, and Rochester under 42 U.S.C. § 1983 for the violation of his Fifth, Sixth, and/or Fourteenth Amendment right of access to the courts, the liability of Rochester under Section 1983 for the violation of his purported First, Fifth, Sixth, and/or Fourteenth Amendment right to seek legal redress and to proceed pro se, the liability of defendant King under Section 1983 for the violation of his purported First Amendment due process rights and/or his purported Fifth, Sixth, and/or Fourteenth Amendment right to seek legal redress and to proceed pro se, and the liability of defendant Rossi for the violation of his purported Fifth, Sixth, and/or Fourteenth Amendment right to seek legal redress and to proceed pro se. Underwood seeks award of compensatory and punitive money damages from the defendants in unspecified amounts, this court's declaration that Underwood "has the right to reasonable law library access," and injunctive relief to enjoin defendants to provide him with "reasonable law library access" and to prevent "King from contacting [Underwood]." This court has federal question jurisdiction over Underwood's claims pursuant to 298 U.S.C. § 1331(a).

         Now before the court are Underwood's motion (ECF No. 44) for a temporary restraining order and/or preliminary injunction to require defendants "to provide a constitutionally adequate grievance system" at SRCI and to enjoin "defendant King from having further contact with [Underwood] at any hearings" and Underwood's motion (ECF No. 61) for a temporary restraining order and/or preliminary injunction to require defendants to provide an adequate law library at SRCI and to provide SRCI inmates with "meaningful" access thereto. I have considered the motions and all of the pleadings and papers on file. For the reasons set forth below, Underwood's motions (ECF Nos. 44, 61) are denied.

         LEGAL STANDARD

         A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def Council, 555 U.S. 7, 22 (2008). To establish entitlement to a preliminary injunction, a plaintiff is generally required to demonstrate that (i) the plaintiff is likely to succeed on the merits, (ii) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, (iii) the balance of equities tips in favor of the plaintiff, and (iv) the requested injunction would be in the public interest. See Id. at 20. "The elements of [this] test are balanced, so that a stronger showing of one element may offset a weaker showing of another. For example, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011).

         In the alternative, the courts of the Ninth Circuit recognize that a preliminary injunction may properly issue where '"serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132. Thus, a preliminary injunction may be granted "if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest." M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012), citing Alliance for the Wild Rockies, 632 F.3d at 1132.

         Courts apply a more exacting standard when the moving party seeks a mandatory, as opposed to a prohibitory, preliminary injunction. See Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984) ("In cases such as the one before us in which a party seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction"), citing Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1980). Mandatory injunctive relief is disfavored, and it should be denied at the preliminary injunction stage unless the facts and law clearly favor the moving party. Stanley v. Univ. of S. Cat, 13 F.3d 1313, 1320 (9th Cir. 1994).

         The standard for granting a temporary restraining order is "substantially identical" to the standard for granting a preliminary injunction, Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001), with certain caveats. Under Federal Civil Procedure Rule 65(b), a temporary restraining order may issue without notice to the opposing party or the opposing party's attorney only if the movant shows (i) through "specific facts in an affidavit or a verified complaint" that "immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition[, ]" and (ii) that "the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Fed.R.Civ.P. 65(b)(1).

         MATERIAL FACTS

         I. The Parties

         Plaintiff Underwood is an incarcerated prisoner currently housed in the Snake River Correctional Institution. Defendant Rochester is employed as a law library coordinator at SRCI, Defendant Nooth was formerly employed as the Superintendent at SRCI. Defendant King is employed as a grievance coordinator and as the Prisoner Rape Elimination Act compliance manager at SRCI. Defendant Rossi is employed as a law library coordinator at SRCI. Defendant Cain is employed as the Superintendent at SRCI.

         II. The Administrative Remedy Program at SRCI

         Underwood has at all material times been housed at SRCI. At SRCI, Underwood has available to him a three-level grievance procedure consistent with the regulations set forth in Chapter 291, Division 109 of the Oregon Administrative Rules.

         Pursuant to the SRCI grievance procedures and applicable Oregon Administrative Rules, "[i]f an inmate is unable to resolve an issue through informal communications, ... the inmate [may] seek resolution of the issue by submitting a written grievance using the department's approved inmate grievance form (CD 117). ..." OAR-291-109-0140(1)(a). Any such grievance "must include a complete description of the incident, action, or application of the rule being grieved, including date and approximate time," and should be accompanied by any referenced documents. OAR-291-109-0140(1)(b). Matters, actions, and incidents that an inmate may properly grieve are the "misapplication of any administrative directive or operational procedure," the "lack of an administrative directive or operational procedure," any "unprofessional behavior or action which may be directed toward an inmate by an employee or volunteer of [ODOC] or the Oregon Corrections Enterprises," any "oversight or error affecting an inmate," any "program failure as defined in . .. OAR-291-077-0020," except where such failure was caused by the inmate's misconduct, the "loss or destruction of [the inmate's] property," sexual conduct between an ODOC employee and an inmate, or sexual abuse of an inmate by another inmate. OAR-291-109-0140(2). "An inmate grievance may request review of just one matter, action, or incident per inmate grievance form." OAR-291-109-0140(1)(d). Similarly, inmates are not permitted to grieve the actions of more than one ODOC employee through a single grievance form, but rather must file one grievance form per ODOC employee whose actions are the subject of the inmate's challenge. See OAR-291-109-0140(5). In addition, inmates are not ...


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