United States District Court, D. Oregon
OPINION AND ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE
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).
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.
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).
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.
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).
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).
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
The Administrative Remedy Program at SRCI
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.
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 ...