Underwood v. Lampert et al

Filing 112

OPINION & ORDER: Plaintiff's Motions for Temporary Restraining Order and/or Preliminary Injunction 44 & 61 are Denied. Signed on 7/26/18 by Judge Marco A. Hernandez. **14 PAGE(S), PRINT ALL** (Dennis Underwood, Prisoner ID: 14306562) (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DENNIS BURTON UNDERWOOD,
Plaintiff,
2:16-CV-1321-PK
OPINION AND ORDER
v.

JANELL ROCHESTER, MARK NOOTH,
WILLIAM KING, MAUREEN ROSSI, and
BRAD CAIN,
Defendants.
HERNANDEZ, District Judge:
Plaintiff Dennis Burton Underwood, an incarcerated prisoner proceeding pro se and in

Jonna pauperis, filed this action against defendants Robert Lampe1i and Janell Rochester on June

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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
Lampe1i, 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 foutih 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 librmy 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 retaliato1y conduct
King threatened him with bodily hmm, 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 Fomieenth Amendment right to
seek legal redress and to proceed prose, the liability of defendant King under Section 1983 for
the violation of his purported First Amendment due process rights and/or his purpmied Fifth,

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Sixth, and/or Foutieenth Amendment right to seek legal redress and to proceed prose, and the
liability of defendant Rossi for the violation of his purported Fifth, Sixth, and/or Foutieenth
Amendment right to seek legal redress and to proceed prose. Underwood seeks award of
compensato1y and punitive money damages from the defendants in unspecified amounts, this
co mi's declaration that Underwood "has the right to reasonable law libra1y access," and
injunctive relief to enjoin defendants to provide him with "reasonable law library access" and to
prevent "King from contacting [Underwood]." This co mi has federal question jurisdiction over
Underwood's claims pursuant to 298 U.S.C. § 133 l(a).
Now before the comi are Underwood's motion (ECF No. 44) for a tempormy restraining
order and/or preliminmy injunction to require defendants "to provide a constitutionally adequate
grievance system" at SRCI and to enjoin "defendant King from having fmiher contact with
[Underwood] at any hearings" and Underwood's motion (ECF No. 61) for a temporary restraining
order and/or preliminmy 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 fo11h below,
Underwood's motions (ECF Nos. 44, 61) are denied.

LEGAL STANDARD
A preliminmy 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 preliminmy 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 iITeparable harm in the absence of preliminary relief, (iii) the balance

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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
ineparable hmm 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 preliminmy 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 preliminaiy injunction may be
granted "ifthere is a likelihood of itTeparable injuty to plaintiff; there are serious questions going
to the merits; the balance of hardships tips shmply in favor of the plaintiff; and the injunction is
in the public interest." MR. 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 prohibitoty, preliminary injunction. See Martin v. Int'! Olympic Comm., 740 F.2d
670, 675 (9th Cir. 1984) ("In cases such as the one before us in which a patty seeks mandatoty
preliminmy relief that goes well beyond maintaining the status quo pendente lite, comis should
be extremely cautious about issuing a preliminmy injunction"), citing Anderson v. United States,
612 F.2d 1112, 1114 (9th Cir. 1980). Mandatoty 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. ofS. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994).
The standard for granting a tempormy restraining order is "substantially identical" to the

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standard for granting a preliminmy injunction, Stuhlbarg Int'/ 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 tempora1y 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 ineparable injmy, 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 effmis made to give notice and the reasons why it should not be
required." Fed. R. Civ. P. 65(b)(l).

MATERIAL FACTS
I.

The Parties
Plaintiff Underwood is an incarcerated prisoner cmTently housed in the Snake River

Conectional Institution. Defendant Rochester is employed as a law librmy 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 fmih 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 infmmal communications, ... the inmate

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[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 Co1Tections 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-291109-0140(2). "An inmate grievance may request review of just one matter, action, or incident per
inmate grievance form." OAR-291-109-0140(l)(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 pe1mitted to grieve any
claim or issue "that the inmate is pursuing in pending litigation in state or federal courts."
OAR-291-109-0140(3)(h). A grievance will not be processed unless it is received by the
applicable grievance coordinator on foim CD 117 "within 30 calendar days of the date of the
incident giving rise to the grievance." OAR-291-109-0150(2).
Inmates are pe1mitted to file "no more than two initial inmate grievances in any one week

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or six in any calendar month," other than grievances regarding sexual abuse, and other than
separate grievances grieving multiple ODOC staff members in connection with the same
incident. OAR-291-109-0180(1). Grievances filed in excess of those limits are summarily
denied with the notation that the inmate has committed "abuse" of the grievance system. Id
Upon receipt of an inmate grievance, a grievance coordinator is required to "assign the
grievance a number," date stamp the grievance, "and record its receipt in an inmate grievance
log" and to "send a grievance receipt to the inmate." OAR-291-109-0160(1) and (l)(a). The
grievance coordinator is then required to coordinate with the ODOC employee best suited to
respond to the grievance, and to send the inmate's grievance to that person "for reply." OAR291-109-0160(1)(b). The response must "be retumed to the grievance coordinator for processing
within 21 calendar days." OAR-291-109-0160(l)(c). Following such processing, the grievance
coordinator is required to send the inmate copies of both the grievance and the response, and to
retain copies for the grievance coordinator's files, all within "45 days from the date the grievance
was received" by the grievance coordinator, "unless further investigation is necessmy."
OAR-291-109-0160(2). In the event the grievance coordinator fails to complete processing of
the grievance within 45 days of its receipt, "the grievance coordinator will make an effort to
notify the inmate of the status of the grievance." Id. "If the inmate does not receive a response
within the allotted time frame, he/she may contact the grievance coordinator." Id.
"If at any time the grievance coordinator determines the inmate has pursued his/her
grievance through state or federal comis, the grievance process will cease and the grievance will
be retumed to the inmate." OAR-291-109-0160(4). "A grievance that has been returned to [an]
inmate by the grievance coordinator for procedural reasons cannot be appealed." OAR-291-109-

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0160(5).
An inmate may appeal the institutional response to the inmate's grievance by and through
"the grievance appeal fonn (CD 117c)." OAR-291-109-0170(l)(a). Any such appeal "must be
submitted to the grievance coordinator together with the original grievance, attachments, and
staffresponse(s)." Id The scope of the originally submitted grievance cannot be expanded on
appeal, and the inmate is not permitted to add new info1mation regarding the grieved incident on
appeal, except where such information was unavailable to the inmate at the time the original
grievance was filed. See id. Any such appeal must be received by the grievance coordinator
"within 14 days from the date that the grievance response was sent to the inmate from the
grievance coordinator." OAR-291-109-0170(1)(b). The grievance coordinator is required to
send the appeal to the "functional unit manager," who is required to respond to the appeal "within
30 calendar days." OAR-291-109-0170(l)(c). The grievance coordinator is then required to
send the functional unit manager's appeal response to the inmate. See id.
In the event an inmate wishes to appeal the functional unit manager's decision regarding a
grievance appeal, the inmate may do so "using the grievance appeal form (CD 1l7c)."
OAR-291-109-0170(2)(a). Any such appeal "must be submitted to the grievance coordinator
together with the original grievance, attachments, staff responses, and documentation related to
the first grievance appeal." Id. The grievance coordinator must receive any such appeal "within
14 calendar days from the date that the first grievance appeal response was sent to the inmate
from the grievance coordinator." OAR-291-109-0170(2)(c). As with the first appeal, appeal of
the functional unit manager's response cannot expand the scope of the original grievance, and
cannot adduce new information regarding the originally grieved incident, except where such

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information was unavailable to the inmate at the time the original grievance or first appeal was
filed. See OAR-291-109-0170(2)(a). The grievance coordinatoris required to forward any such
appeal to "the Assistant Director having authority to review and resolve the issue." Id.
The Assistant Director with such authority is required to respond to any such appeal from
a functional unit manager's grievance appeal response "within 30 calendar days."
OAR-291-109-0170(2)(e ). "The Assistant Director's ... decision on an inmate's grievance
appeal is final, and is not subject to further [administrative] review." OAR-291-109- 0170(2)(f).

III.

The Parties' Material Evidentiary Proffers
Underwood offers his declaration testimony that while housed at SRCI he has attempted

to avail himself of the grievance procedures available there, but has had grievances rejected on
unspecified grounds, see Declaration (ECF No. 45) of Dennis Underwood ("Underwood Deel.
I"), iii! 1-2, has not been provided with the rules governing the filing of grievances, see id.,

iJ 4,

has appeared for an appeal "hearing" only for the hearing to be canceled, see id., iJ 3, and has
been threatened with harm in the event he filed further grievances containing false accusations,
with the consequence that he refrained for a time from further availment of the grievance system,
see id., iii! 6-7, 16-17.
Underwood offers his further declaration testimony that he needs to perfo1m legal
research in connection with his pending appeal from the conviction that resulted in his
incarceration at SRCI, see Declaration (ECF No. 62) of Dennis Underwood ("Underwood Deel.
II"), iii! 2-3, 6-9, 12-13, 18, 21, 23, 25, that some of his legal work product was "inexplicably
erased" from a thumb drive while stored at SRCI, id., iJ 14, and that he faces restrictions on his
access to the SRCI law libra1y, including restriction of ce1tain law texts to in-libra1y use only,

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restriction on law library access time to 2.5 hours per week for computer use and 1 hour per week
for legal research, failure to have a "comprehensive policy" for handling inmate requests for
additional law libraty time, prohibition against retaining copies of legal documents, prohibition
against retaining drafts of legal work product, restrictions on printing documents, restrictions on
the hours when the law libraty is accessible to inmates, restrictions on inmates employed to assist
the SRCI law library coordinators providing assistance to other inmates, restrictions on talking in
the law library, see id., iii! 70-71, 72, 74, 75-77, 86, 88-89, 94-96, 99, 100, 102.
Defendants offer into evidence the declaration testimony of defendant King that he has
met with Underwood on only one occasion, see Declaration (ECF No. 58) of Bill King ("King
Deel."), iii! 6, 10, that he has never on any occasion threatened Underwood in any manner, see id,

ifil 5, 10, 14, 15, 16, and that he investigated Underwood's allegations of misconduct by
defendant Rochester, that he was unable to corroborate them in any degree, and that Underwood's
statements regarding Rochester's conduct were internally inconsistent in significant respects, see

id., irir 6, 8, 10-12.
ANALYSIS
Because defendants have responded to Underwood's motions now before the comt, I
evaluate the merits of the motions under the standard applicable to motions for preliminary
injunction rather than the standard applicable to motions for temporaty restraining orders.

I.

Undenvood's Motion (ECF No. 44) for Immediate Injunctive Relief Regarding the
SRCI Grievance System and Regarding Contact with Defendant King at Hearings
A.

Underwood's Entitlement to Immediate Injunctive Relief Regarding the
SRCI Grievance System

Underwood is clearly not entitled to the injunctive relief he seeks in connection with the

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grievance system available to him at SRCI. First, he cannot show that he is likely to prevail on
the merits in connection with any claims arising out of any defects in the SRCI grievance system
because his claims do not in any sense arise out of any such defects, and this, without more, is
sufficient grounds to deny the requested relief. See, e.g., De Beers Consol. Mines v. US., 325
U.S. 212, 220 (1945); see also Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); Colvin v.

Caruso, 605 F.3d 282, 299-300 (6th Cir. 2010); Omega World Travel, Inc. v. Trans World
Airlines, 111F.3d14, 16 (4th Cir. 1997); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
1994). Second, because under the Prison Litigation Refonn Act (the "PLRA") the consequence
of a co11'ectional institution's failure to provide an adequate grievance system is that inmates
seeking to bring claims in federal court regarding the conditions of their confinement are excused
from the obligation to exhaust available administrative remedies before bringing their claims, see
42 U.S.C. § 1997e(a), Ross v. Blake, 136 S. Ct. 1850, 1859-1860 (2016), Nunez v. Duncan, 591
F.3d 1217, 1226 (9th Cir. 2010), Underwood cannot establish that any such failure - even if
proven - would result in itTeparable injury ifthe requested injunctive relief were not granted.
Third, in light of the relatively minor burden imposed by the restrictions and the need for
institutions like SRCI to allocate limited law-library resources equitably among those in need of
them, nothing in the record before the court has any tendency to suggest that the balance of
equities would tip in Underwood's favor on this issue. Fourth, for the same reason, nothing in
the record before the court has any tendency to suggest that the requested injunctive relief would
be in the public interest. Fifth, for the same reasons discussed above in connection with the first

Winter factor (plaintiffs likelihood of prevailing on the merits), the request for injunctive reliefin
connection with SRCI's grievance system raises no serious question going to the merits of

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Underwood's claims. For the foregoing reasons, Underwood's motion (ECF No. 44) for a
temporary restraining order and/or preliminaty injunction is DENIED to the extent Underwood
seeks injunctive relief in connection with the grievance system at SRCI.

B.

Underwood's Entitlement to Immediate Injunctive Relief Regarding Contact
with Defendant King at Hearings

Underwood is likewise not entitled to the injunctive relief he seeks in connection with
contact with defendant King at heat'ings. First, in light of King's declaration testimony directly
contradicting Underwood's allegations and testimony regarding his conduct, I cannot find on the
cutTent record that Underwood has established a significant likelihood of success on the merits of
his claim against King. Second, nothing in the record suggests that Underwood is likely to suffer
irreparable hmm in the event he is required to have contact with King at hearings. Third, again in
light of King's declaration testimony, I do not find that the balance of equities tips in
Undetwood's favor. Fomih, similarly in light of King's declaration testimony, I do not find that
the record establishes that the requested injunctive relief would be in the public interest. Fifth,
nothing in the record raises serious questions going to the merits of Underwood's claim against
King. For the foregoing reasons, Underwood's motion (ECF No. 44) for a temporaty restraining
order and/or preliminmy injunction is DENIED to the extent Underwood seeks injunctive relief
in connection with contact with King at hearings.

II.

Undenvood's Motion (ECF No. 61) for Immediate Injunctive Relief Regarding the
Adequacy of the SRCI Law Library and Inmate Access Thereto
As I noted in my Order (ECF No. 9) dated August 8, 2016, denying Underwood's

previous motion for immediate injunctive relief in connection with SRCI's law libraty and law
library policies, in Bounds v. Smith, 430 U.S. 817, 828 (1977), the Supreme Court held that "the

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fundamental constitutional right of access to the courts requires prison authorities to assist
inmates in the preparation and filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons trained in the law." However,
prisoners do not have "an abstract, freestanding right to a law libra1y or legal assistance" and a
prisoner "caffilot establish relevant actual injmy simply by establishing that the prison's law
library ... is subpar in some theoretical sense." Lewis v. Casey, 518 U.S. 343, 351 (1996).
Rather, a prisoner must demonstrate that he has suffered actual injmy to contemplated or existing
litigation. Id. at 351-53; see also Hebbe v. Pliler, 627 F.3d 338, 343-344 (9th Cir. 2010) (a
prisoner may state a claim if he was impermissibly denied the oppo11unity to appeal his
conviction). Moreover, "[s]peculative inju1y does not constitute irreparable injmy sufficient to
warrant granting a preliminmy injunction." Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d
668, 674 (9th Cir. 1988).
As I found in coffilection with Underwood's previous motion, Underwood is not entitled
to the immediate injunctive relief he requests by and through the motion now before the court.
First, Underwood has failed to establish either a significant likelihood of success on the merits of
his access to the comis claim or that he is likely to suffer irreparable injury in the event the
requested injunctive relief is not granted, in that his allegations and declaration testimony do not
suggest that he has experienced or will experience any actual irreparable injmy as a consequence
of the SRCI law librmy's purpmted inadequacy or ofSRCI's policies regarding law libra1y access,
such as inability to present his claims or meet his filing deadlines, but rather merely that he has
been forced to seek and obtain extensions from the Oregon Com1 of Appeals. Such delays do not
constitute actionable actual inju1y sufficient to give rise to an access to the courts claim. See

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Lewis, 518 U.S. at 346-349. Second, for the same reasons, Underwood has not established either
that the balance of the equities tips in his favor in connection with his access to the courts claim
or that the requested injunctive relief would be in the public interest. Fifth, likewise for the same
reasons, Underwood has not established the existence of serious questions going to the merits of
his claim. For the foregoing reasons, Underwood's motion (ECF No. 61) for a tempormy
restraining order and/or preliminmy injunction to require defendants to provide an adequate law
library at SRCI as well as meaningful inmate access thereto is DENIED.
CONCLUSION

For the reasons set forth above, Underwood's motions (ECF Nos. 44, 61) for temporaty
restraining order and/or preliminmy iajunction are DENIED.

Dated this

~th day of July, 2018.
onorable Mar o A. Hernande
United States District Judge

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