Brown v. State of Colorado

Filing 78

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 64 MOTION for Temporary Restraining Order filed by Stevie Brown be DENIED. By Magistrate Judge Nina Y. Wang on 9/14/2017. (Attachment: # 1 Unpublished case law) (nywlc1)

Longstreth v. Tucker, Not Reported in F.Supp.2d (2008)
2008 WL 2037275

2008 WL 2037275
Only the Westlaw citation is currently available.
United States District Court,
W.D. Oklahoma.
Christopher LONGSTRETH, Plaintiff,
v.
Steve TUCKER, et al., Defendants.
No. CIV–05–221–C.
|
May 8, 2008.
Attorneys and Law Firms
Christopher E. Longstreth, Cushing, OK, pro se.
Linda K. Soper, M. Daniel Weitman, Sherry A. Todd,
Attorney General's Ofc, Oklahoma City, OK, for
Defendants.

ORDER
ROBIN J. CAUTHRON, District Judge.
*1 Plaintiff filed the present action pursuant to
42 U.S.C. § 1983, seeking redress for a claim of
excessive force. Following the resolution of Motions for
Summary Judgment filed by Defendants, only Plaintiff's
claim against Defendant Tucker in his individual
capacity remains. While the case is proceeding through
pre-trial preparations, Plaintiff has filed a Motion
for Temporary Restraining Order seeking the Court's
assistance regarding his legal materials. According to
Plaintiff, officials with the Oklahoma Department of
Corrections (“ODOC”) have seized his legal materials and
threatened destruction of same. In a thorough and well
reasoned Report and Recommendation (“R & R”), Judge
Argo determined that Plaintiff's request was well founded
and recommended a TRO 1 issue. Plaintiff has filed an
Objection to the R & R complaining it was issued before
his response to the supplemental special report was filed.
Plaintiff also complains of certain language used in the R
& R, stating it does not accurately reflect the facts of the
case.

R should be adopted in its entirety. Initially the Court
notes that the issue for which Judge Argo recommended
a preliminary injunction is only tangentially related to the
gravamen of Plaintiff's Complaint. As noted, this case is
premised on an allegation of excessive force. The request
for injunctive relief seeks to prevent the destruction of
certain personal files of Plaintiff which contain legal
materials related to the excessive force case. In this regard,
much of the relief sought by Plaintiff in his Objection and/
or response to the supplemental report is beyond the scope
of the Amended Complaint and cannot be pursued. 2
Turning to the Objection to the R & R, Plaintiff raises no
issue therein which would alter the results set forth in the R
& R. Likewise, the issues raised in the attached objection
to the supplemental report likewise require no alteration
of Judge Argo's determinations. The only issue which may
require additional consideration is Plaintiff's assertion
that not all the materials he needs are labeled with a
case number. Therefore, Plaintiff argues, Judge Argo's
recommendation that the ODOC be required to send
Plaintiff “all legal materials pertaining to this litigation”
will not resolve all issues. Until the ODOC complies
with the preliminary injunction and provides Plaintiff
with the required materials, it is unknown what, if any,
materials are missing. Judge Argo's R & R unquestionably
establishes Plaintiff's right to the materials pertaining to
this case and the Court anticipates the ODOC will comply
whether those materials are specifically labeled with a
case number or not. In the event Plaintiff finds materials
covered by the preliminary injunction missing, he may
seek additional relief.
Accordingly, the Court adopts, in its entirety, the Report
and Recommendation of the Magistrate Judge (Dkt. No.
136), and, for the reasons announced therein, Plaintiff's
request for preliminary injunction (Dkt. No. 127) is
GRANTED. A separate Order outlining the details
will issue. Plaintiff's Motion to Stay (Dkt. No. 129),
his Motion Re-urging Plaintiff's Motion for Temporary
Restraining Order and Preliminary Injunction (Dkt. No.
133), and his Motion for Leave to File a Response to
Defendants' Supplemental Special Report (Dkt. No. 135)
are DENIED as moot.
*2 IT IS SO ORDERED.

After de novo review of the R & R, Plaintiff's Objection
and the attachments thereto, the Court finds the R &

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Longstreth v. Tucker, Not Reported in F.Supp.2d (2008)
2008 WL 2037275

REPORT AND RECOMMENDATION
DOYLE W. ARGO, United States Magistrate Judge.
Plaintiff, a state prisoner appearing pro se, brings this
action pursuant to 42 U.S.C. § 1983 alleging various
violations of his constitutional rights. Pursuant to an
order by Chief United States District Judge Robin
J. Cauthron, the matter has been re-referred to the
undersigned Magistrate Judge for pretrial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B). Currently before
the Court are Plaintiff's motion for temporary restraining
order and motion for preliminary injunction [Doc. No.
127], Plaintiff's motion to stay case [Doc. No. 129],
Plaintiff's motion for leave to file sur-reply [Doc. No.
130], Plaintiff's motion re-urging his motion for temporary
restraining order and preliminary injunction [Doc. No.
133], and Plaintiff's Motion for Leave to File Response to
Defendants' Supplemental Special Report [Doc. No. 135].
Chief Judge Cauthron adopted a previous Report and
Recommendation of the undersigned in which it was
recommended that the motions for summary judgment of
Defendants Ward and Justin Jones; Defendants Green,
Watson, and Workman; and Defendants Robb and Tom
Jones be granted. [Doc. No. 118]. Chief Judge Cauthron
also adopted the undersigned's recommendation that the
motion for summary judgment of Defendant Tucker be
granted with regard to Plaintiff's official capacity and state
law claims, but denied as to Plaintiff's Eighth Amendment
excessive force claim, Plaintiff's claim for compensatory
damages for emotional and psychological trauma, and
Defendant Tucker's defense of qualified immunity. As
noted, Chief Judge Cauthron re-referred the matter for the
purpose of conducting pretrial proceedings.
In the motions currently before the Court, Plaintiff
complains that on October 4, 2007, he was transferred
from the James Crabtree Correctional Center (JCCC)
to the Cimarron Correctional Facility (a private prison
facility in Cushing, Oklahoma), and that approximately
four weeks prior to this date his legal materials were
seized in anticipation of transfer. Plaintiff's Declaration
in Support of Motion for Temporary Restraining Order,
¶ 2, 3; Plaintiff's Motion for Temporary Restraining
Order and Motion for Preliminary Injunction, p. 3.
Plaintiff claims that he was advised that his materials
would be destroyed within thirty days if not sent out of

the Oklahoma Department of Corrections because they
exceeded the one cubic foot legal property rule. Plaintiff's
Declaration in Support of Motion for Temporary
Restraining Order, ¶ 3. Plaintiff alleges that the day
before his transfer he was given approximately two
hours to review the materials, but that he was only
able to partially accomplish his review of separating
the documents because he was in a wheelchair. Id. at
¶ 14. He claims that all of the documents were again
boxed up by the property officer, and he was advised
he had thirty days to send them out. Id. Plaintiff states
that he informed JCCC Warden David Parker that the
materials included materials necessary to his pursuit of
the instant litigation, and needed to be secured. Plaintiff's
Motion for Temporary Restraining Order and Motion for
Preliminary Injunction, p. 3.
*3 Defendant Tucker has responded to the motion
for restraining order and injunction, indicating that the
date upon which the legal materials were to have been
destroyed has passed, rendering Plaintiff's motion moot.
Defendant Tucker also urges the Court to dismiss the
“lawsuit” because Plaintiff's administrative remedies with
regard to the legal materials have not yet been exhausted.
[Doc. No. 128].
Concerned that the Court did not yet have the benefit
of a response from the prison administration regarding
the incident, circumstances, and conditions which Plaintiff
outlined in his motion; in particular, with regard to
Defendant Tucker's claim that the matter may be
moot, or that the issue may have been adequately
addressed through Plaintiff's administrative process. the
Oklahoma Attorney General on behalf of the Oklahoma
Department of Corrections was directed to file a very brief
supplemental special report under Martinez v. Aaron, 570
F.2d 317, 320 (10th Cir.1978). That report has now been
received.
From that supplemental report, it appears that Plaintiff's
concerns regarding his legal materials are far from moot.
See Supplemental Special Report, p. 5–6. Moreover,
it appears that the administrative process has been
completed 1 and no resolution has been achieved thereby.
Id. The supplemental special report makes it clear that
the legal materials seized do indeed contain materials
pertaining to the instant litigation, as they have been
inventoried by the Oklahoma Department of Corrections.
Id. at 4. Plaintiff indicated in his earlier request to staff

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Longstreth v. Tucker, Not Reported in F.Supp.2d (2008)
2008 WL 2037275

that he did not have adequate time to go through the
two boxes of legal materials prior to his transfer due to
the fact that he was wheelchair bound, but did identify
the files from the current litigation—by case number—as
those which he needed. Supplemental Special Report, Att.
5, p. 1. Nonetheless, the various responses to Plaintiff's
subsequent administrative materials appear to deny those
requests based upon Plaintiff's inability to identify all of
the case numbers associated with the legal materials he
claims he needs. Id. at 3, 5; att. 6, p. 4, 9, 14; att. 7, p. 1–
2 ¶¶ 7, 8.
In order to obtain a preliminary injunction, Plaintiff must
demonstrate the following:(1) a substantial likelihood of
success on the merits of the case; (2) irreparable injury
to the movant if the preliminary injunction is denied; (3)
that the threatened injury to the movant outweighs the
injury to the other party under the preliminary injunction;
and (4) that the injunction is not adverse to the public
interest. Salt Lake Tribune Pub. Co., LLC v. AT & T Corp.,
320 F.3d 1081, 1099 (10th Cir.2003) (quoting Kikumura v.
Hurley, 242 F.3d 950, 955 (10th Cir.2001)). In addition,
the right to relief must be “clear and unequivocal” because
“a preliminary injunction is an extraordinary remedy.”
Id. After weighing these factors in light of Plaintiff's
burden and the requirement that the right to relief be
clear and unequivocal, the undersigned recommends that
Plaintiff's application be granted, and that the Oklahoma
Department of Corrections immediately provide him with
all materials pertaining to this litigation contained within
those legal materials seized on or about October 2,
2007, preceding his transfer to the Cimarron Correctional
Facility.
*4 First, although it is not entirely clear at this point that
there is a substantial likelihood that Plaintiff will prevail
on the ultimate merits of his litigation, he has withstood
a motion for summary judgment and has entered the
pretrial stages of this litigation. Thus, his access to the
legal materials pertaining to his case against Defendant
Tucker is obviously of great importance, particularly
as an uncounseled litigant. Second, if injunctive relief
is denied, and Plaintiff is forced to proceed with trial
preparation without his legal materials any resulting
harm could be irreparable—forcing him to pursue an
appeal with the more exacting standards applicable to jury
determinations. Third, the threatened injury to Plaintiff
outweighs the injury to the Oklahoma Department of
Corrections under the preliminary injunction, because the

materials have already been inventoried and apparently
sorted by case number. Finally, there is nothing obviously
adverse to the public interest should the injunction be
granted. As Plaintiff alleges in his Motion to for Leave
to file Response to Supplemental Special Report, the
prison facility in which he is housed is nonsmoking.
Furthermore, there has been no information provided
regarding how much of the material in the box(es) pertains
to this litigation as opposed to Plaintiff's other litigation.
Although the Court is sensitive to space and safety
concerns presented by storage of large amounts of paper
and other materials by inmates as a whole, this limited
exception—even assuming that the amount of documents
would exceed the one cubic foot limit provided for by
the applicable policy—would not appear to be against
the public policy, particularly in light of the overarching
concerns of allowing inmates access to their own legal
materials on the eve of trial.
In light of the foregoing, it is recommended that Plaintiff's
motion for preliminary injunction allowing him access to
his own legal materials pertaining to this litigation and
which were seized upon his transfer be granted.
The undersigned notes that Plaintiff also requests that
ODOC provide him with an adequate law library
and house him in a correctional facility “within the
jurisdictional boundaries of this Court.” Plaintiff's
Motion for Temporary Restraining Order and Motion
for Preliminary Injunction, p. 5. He contends that he
was formerly housed at two facilities that had prison law
libraries, but after filing a grievance against Defendant
Tucker was transferred, and then transferred again, and
now is housed at Cimarron Correctional Facility which is
a private prison facility without a law library and which
is outside this Court's jurisdiction. Id. Although as noted,
Plaintiff has made an adequate showing regarding his
need for injunctive relief with regard to his own legal
files, he has not done so with regard to his need for a
law library. In Bounds v. Smith, 430 U.S. 817 (1977),
the Supreme Court recognized that inmates have a wellestablished constitutional right of access to the courts
and that States must affirmatively assure that inmates
are provided “meaningful access to the courts.” Id . at
820–821, 824. Nevertheless, the Court recognized that its
decision “does not foreclose alternative means to achieve
that goal,” which may be fulfilled by providing prisoners
“with adequate law libraries or adequate assistance from
persons trained in the law” to ensure prisoners have

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Longstreth v. Tucker, Not Reported in F.Supp.2d (2008)
2008 WL 2037275

“a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the
courts.” Id. at 825, 828, 830. Because there is no “abstract,
freestanding right to a law library or legal assistance,”
an inmate alleging a denial of his right of access to the
courts must show actual injury and “an inmate cannot
establish relevant actual injury simply by establishing that
his prison's law library or legal assistance program is
subpar in some theoretical sense.” Lewis v. Casey, 518
U.S. 343, 351 (1996). Hence, the inmate must show that
deficiencies in the law library or legal assistance program
actually “hindered his efforts to pursue a legal claim” in
order to establish a violation of his constitutional right of
access to the courts. Id. Plaintiff's motion and supporting
declaration provide no facts from which to infer that
he is being denied his constitutional right of access to
the courts under the prevailing standard established in
Bounds and Casey simply because there is no law library
at Cimarron. However, it is noted that on two recent
occasions, this Court has invited Plaintiff to re-urge his
motion for appointment of counsel but he has not done so.
*5 With regard to Plaintiff's request for transfer, he states
he wants a transfer to a prison facility within this Court's
jurisdiction. However, it appears that he is claiming that
transfer is required in hopes that he will be moved to a
facility that has a law library. Regardless, venue of actions
under 42 U.S.C. § 1983 is governed by the general venue
provision of 28 U.S.C. § 1391(b), and all of the relevant
events took place in the Western District of Oklahoma,
thus venue is proper here. Plaintiff's transfer does not
change that fact. Moreover, a Court order directing
ODOC to transfer Plaintiff would interfere with prison
management, and is improper in light of Plaintiff's failure
to make any showing that his current housing situation
is interfering with his access to the courts. See Turner v.
Safley, 482 U.S. 78, 84–85 (1987).

RECOMMENDATION
For the reasons set forth above, it is recommended
that Plaintiff's motion for preliminary injunction [Doc.
No. 127] be granted to the extent that he requests
access to his legal materials, but otherwise denied. It is
further recommended that the Oklahoma Department of
Corrections be directed to send Plaintiff all legal materials
pertaining to this litigation which were among those
seized upon Plaintiff's transfer from the James Crabtree
Correctional Center. In light of this recommendation, it
is further recommended that Plaintiff's motion to stay
case [Doc. No. 129] motion re-urging his motion for
temporary restraining order and preliminary injunction
[Doc. No. 133], and Motion for Leave to File Response
to Supplement Special Report [Doc. No. 135] be denied
as moot. 2 The parties are advised of their right to
file an objection to this Report and Recommendation
with the Clerk of this Court by April 7, 2008, in
accordance with 28 U.S.C. § 636 and Local Civil Rule
72.1. The parties are further advised that failure to make
timely objection to this Report and Recommendation
waives their right to appellate review of both factual
and legal questions contained herein. Moore v. United
States, 950 F.2d 656 (10th Cir .1991). This Report
and Recommendation disposes of the issues referred
to the undersigned Magistrate Judge in the captioned
matter and, as the parties have chosen not to consent to
magistrate judge jurisdiction, the matter is referred back
to Chief Judge Cauthron.

All Citations
Not Reported in F.Supp.2d, 2008 WL 2037275

Footnotes

1
2
1
2

Because the injunctive relief was issued with notice, the Court will refer to it as a preliminary injunction. See Fed.R.Civ.P.
65.
In particular, Plaintiff's claims of lack of access to an adequate law library or legal resources must be pursued as a separate
claim. However, the Court notes that Plaintiff may seek the Court's assistance in obtaining counsel which may alleviate the
concerns about his access to legal resources. To the extent Plaintiff wishes counsel, he shall file an appropriate motion.
Plaintiff indicated in his Motion for Leave to File Response to Supplemental Special Report that his appeal to the
administrative review authority is still pending. Id. at ¶ 7.
Plaintiff's motion for leave to file sur-reply [Doc. No. 130], which in fact is a sur-reply, is hereby granted and it was
considered.

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Longstreth v. Tucker, Not Reported in F.Supp.2d (2008)
2008 WL 2037275

End of Document

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

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