Morales v. Spencer et al

Filing 37

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered. All of plaintiff's motions filed between March 3 and May 22, 2014, (docket numbers 15 , 16 , 17 , 18 , 19 , 20 , 22 , 23 , 25 , 27 , and 29 ) are DENIED. To the extent the motions concern the ultimate or interim relief sought by plaintiff in this case, the denial iswithout prejudice to their renewal. (Cicolini, Pietro)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
MIGUEL A. MORALES,
)
)
Plaintiff,
)
)
Civil No.
v.
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13-12423-FDS
)
LUIS S. SPENCER, Commissioner,
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BRUCE GELB, Superintendent,
)
OSVALDO VIDAL, Deputy
)
Superintendent of Operations, STEVE
)
CARRIER, Administrative Captain, and
)
D. LEABMAN, Mailroom Officer,
)
)
Defendants.
)
_______________________________________)
MEMORANDUM AND ORDER ON
PLAINTIFF’S MOTIONS
SAYLOR, J.
This is a civil rights action under 28 U.S.C. §§ 1983 and 1985. Plaintiff Miguel A.
Morales, an inmate at Souza-Baranowski Correctional Center, has filed suit against various
prison officials contending that they violated his constitutional rights by confiscating as
contraband multiple art books because the books contain nudity and sexually explicit material.
Plaintiff has filed eleven motions seeking joinder of this action with another suit he has
filed in this Court, a permanent injunction, a declaratory judgment, and a default judgment. For
the reasons set forth below, those motions will be denied.
I.

Background
A.

Factual Background

According to the complaint, Morales is an inmate at the Souza-Baranowski Correctional
Center in Shirley, Massachusetts. On June 11, 2013, the mailroom officer at that facility

delivered to Morales a contraband slip indicating that prison officials had confiscated two books
that Morales had ordered entitled Fairy Song and the Art of Roca. On June 21, 2013, Morales
filed a grievance, contending that he was entitled to possess the books because they are art books
and because similar books had been allowed into the facility, which was denied. On July 18,
2013, he appealed the denial of his grievance, contending that books were educational and,
alternatively, that the ban on pornography in prisons should be removed. That grievance was
denied. Morales also wrote a letter to Bruce Gelb, the Superintendent of Souza-Baranowski,
about his grievance.
On August 17, 2013, Morales received a second contraband slip from the mailroom
officer, informing him that a book that he had ordered entitled Blasphemy: Art That Offends had
been confiscated. Morales wrote to the Deputy Superintendent of Operations, explaining why he
believed he should be allowed the book, which was denied. On September 2, 2013, despite
having had his grievance privileges suspended, Morales filed an informal grievance about the
confiscation of Blasphemy.
A February 19, 2014 letter from the Superintendent of Souza-Baranowski, Bruce Gelb,
explains that the books are considered contraband due to “pictures of full and graphic nudity,
exposed genitalia, and severe body mutilation” and therefore not in compliance with the policies
of the Department of Correction. (Dkt. No. 15-2).
B.

Procedural Background

On September 30, 2013, Morales filed a complaint in this Court, asserting claims under
42 U.S.C. §§ 1983 and 1985 for denial of his rights under the First, Fourth, Fifth, Eighth, Ninth,
and Fourteenth Amendments to the United States Constitution. The complaint named as

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defendants Luis S. Spencer, Commissioner of the Department of Correction; Bruce Gelb,
Superintendent of Souza-Baranowski; Osvaldo Vidal, Deputy Superintendent of Operations;
Steve Carrier, Administrative Captain; and D. Leabman, Mailroom Officer.
On April 9, 2014, defendants moved to dismiss the complaint for improper service. On
May 14, 2014, after finding that plaintiff had failed properly to serve defendants, this Court
denied the motion to dismiss without prejudice and extended the period for service of process
until June 13, 2014. The Court later granted plaintiff an extension until July 28, 2014, to
complete service.
On March 3, March 7, March 18, March 31, April 7, April 22, April 28, and May 22,
2014, plaintiff filed eleven motions in total. (Dkt. Nos. 15, 16, 17, 18, 19, 20, 22, 23, 25, 27, 29).
Defendants, who have not yet been served, have not entered an appearance in this case and have
not filed any opposition to the motions.
II.

Analysis
Plaintiff’s motions are somewhat difficult to comprehend and often duplicative of one

another. However, he appears to seek joinder of this action with another that he filed, a
permanent injunction, a declaratory judgment, and a default judgment.
Plaintiff seeks joinder of this action with another case that, at the time he filed the
motion, was pending before this Court. That complaint has since been dismissed and the case
closed. Accordingly, the motions for joinder will be denied.
Plaintiff seeks a preliminary injunction to prevent defendants from enforcing numerous
laws and policies, including any ban on the purchase of obscene material, any ban on segregation
of the sexes, and any bar to his accessing art and art supplies. Because a court cannot issue a

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preliminary injunction without notice to the adverse party, and the motion has not been served on
defendants, the Court will construe the motions as seeking an ex parte temporary restraining
order. To obtain such an order, a party must allege “immediate and irreparable” injury or loss
that will occur before the adverse party can be heard in opposition. Fed. R. Civ. P. 65(b). He
must also certify to the court in writing his efforts, if any, to give notice and provide reasons why
notice should not be required. Id. Plaintiff has failed to allege “immediate and irreparable”
injury or loss or to provide such a certification. Accordingly, the motions for a preliminary
injunction, construed as motions for a temporary restraining order, will be denied.
Plaintiff also seeks a declaratory judgment under Fed. R. Civ. P. 57. Again, it is unclear
what declaration he seeks That rule, however, does not provide any avenue for relief to plaintiff
at this early stage of the case. Accordingly, the motions will be denied.
Finally, plaintiff requests default judgment pursuant to Fed. R. Civ. P. 55(d), which this
Court construes as a motion for default under Fed. R. Civ. P. 55(a). However, a necessary
predicate to entry of default is that a plaintiff have properly served defendants and defendants
have been given 60 days to respond. See Fed. R. Civ. P. 12(a)(3). By the dates of his motions,
defendants had neither been served, nor had 60 days passed. Accordingly, the motions for
default will be denied.

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III.

Conclusion
For the foregoing reasons, all of plaintiff’s motions filed between March 3 and May 22,

2014, (docket numbers 15, 16, 17, 18, 19, 20, 22, 23, 25, 27, and 29) are DENIED. To the extent
the motions concern the ultimate or interim relief sought by plaintiff in this case, the denial is
without prejudice to their renewal.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: July 8, 2014

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