BURGESS v. HERRON
Filing
6
MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 11/02/2011. RECOMMENDED that Petitioner's Motion for an Injunctive Order Requiring Prison Officials to Provide Access to Legal Material (Docket Entry 5 ) be DENIED. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TERRY J. BURGESS,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
JOEL HERRON, ADMINISTRATOR,
Defendant.
1:11CV420
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
matter
comes
before
the
undersigned
United
States
Magistrate Judge for a recommended ruling on Petitioner’s Motion
for an Injunctive Order Requiring Prison Officials to Provide
Access to Legal Material (Docket Entry 5). (See Docket Entry dated
Oct. 25, 2011; see also 28 U.S.C. § 636(b)(1) (providing that
United States Magistrate Judges may not dispose of motions for
injunctive
motions).)
relief,
but
may
enter
recommendations
as
to
such
For the reasons that follow, the Court should deny
Petitioner’s instant Motion.
This case began when Petitioner filed a form Petition under 28
U.S.C. § 2254 (Docket Entry 2), along with a form Application to
Proceed without Prepayment of Fees and Affidavit (Docket Entry 1).
The Court (per United States Magistrate Judge Wallace W. Dixon)
accepted the Petition for filing without prepayment of the $5.00
filing fee, but stayed the case and (based on the record of
deposits into Petitioner’s prison account) required Petitioner to
pay the $5.00 filing fee within 30 days.
(Docket Entry 3.)
Petitioner objected (Docket Entry 4) and that matter remains
pending (see
Docket Entries dated June 15, 2011, to present
(reflecting no further action on Petitioner’s Objections)).
With
his
instant
Motion,
Petitioner
seeks
an
injunction
“requiring [Respondent] to provide [Petitioner] with access to
legal material such as, but not limited to:
(1) A word-processor
and, or computer with internet access, to retrieve case citations,
under supervision of administrative staff for at least five-hours
a week, except holidays and sufficient emergencies . . . [and] (2)
. . . [the] Federal Rules of Crim. Procedure, [the] Federal Rules
of Evidence[, the] Federal Rules of Civil Procedure . . . [and a]
Black’s Law Dictionary or Barron’s Law Dictionary[.]”
Entry 5 at 1 (internal quotation marks omitted).)
(Docket
In addition,
Petitioner asks that the injunction direct Respondent “to provide
xeroxing
of
authenticated
documents
.
.
.
.”
(Id.
at
2.)
Petitioner cites as authority for these requests only Bounds v.
Smith, 430 U.S. 817, 821-28 (1977) (plurality opinion).
Docket Entry 5 at 1-2.)
(See
Petitioner’s reliance upon Bounds to
support his requested injunction fails for at least two reasons.
First, the United States Supreme Court has substantially
limited the reach of Bounds.
See Lewis v. Casey, 518 U.S. 343, 354
(1996) (ruling that, to the extent Bounds “suggest[ed] that the
State must enable the prisoner . . . to litigate effectively once
2
in court, . . . [t]hese elaborations upon the right of access to
the courts have no antecedent in our pre-Bounds cases, and we now
disclaim them” (emphasis in original)).
right
recognized
in
Bounds
“does
Properly understood, the
not
extend
‘further
than
protecting the ability of an inmate to prepare a petition or
complaint.’”
Wrenn v. Freeman, 894 F. Supp. 244, 248 (E.D.N.C.
1995) (quoting Wolff v. McDonnell, 418 U.S. 539, 576 (1974)) (first
set of internal quotation marks from earlier Eastern District of
North Carolina case omitted). Petitioner obviously had the ability
to prepare a petition and thus he has no right to any further
court-ordered assistance.
Second, “[c]ourts have held that [the establishment of North
Carolina
Prisoner
Legal
Services
(“NCPLS”)]
satisfies
the
Constitution’s requirement that inmates be given meaningful access
to the courts.”
Coil v. Peterkin, No. 1:08CV145, 2009 WL 3247848,
at *10 (M.D.N.C. Oct. 5, 2009) (unpublished) (citing Wrenn’s
collection of cases).
present
NCPLS
plan
Accord Wrenn, 894 F. Supp. at 249 (“[T]he
offers
North
Carolina
inmates
that
constitutionally mandated level of assistance necessary to protect
their right of ‘meaningful access’ to the courts.”). Such holdings
are imminently reasonable, given the level of assistance afforded
to prisoners via NCPLS:
“NCPLS initially screens prisoner claims
to determine if they are frivolous.
provide or decline representation.
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NCPLS then decides whether to
If NCPLS determines that
appointment of counsel is not required in the action, NCPLS will
still provide advice and assistance to [a prisoner].”
Lee, 18 Fed. Appx. 164, 166 (4th Cir. 2001).
Fowler v.
For example, even
when it does not opt to represent a prisoner, NCPLS provides forms
the prisoner can use (like the forms used by Petitioner in this
case).
See Coil, 2009 WL 3247848, at *10.
In sum, Petitioner asks the Court to order Respondent to
provide him with a particular level of “access to legal materials
that [he] . . . like[s],” Wrenn, 894 F. Supp. at 249, but his
demands in this regard represent a “luxury [to which] inmates are
not entitled,” id.
IT IS THEREFORE RECOMMENDED that Petitioner’s Motion for an
Injunctive Order Requiring Prison Officials to Provide Access to
Legal Material (Docket Entry 5) be DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 2, 2011
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