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Court Orders Return of Disks
Charles Oropallo is a New Hampshire state prisoner. Pursuant to prison regulations, in 1991 Oropallo ordered a Smith Corona word processor with disk storage capacity. In 1992, prison rules changed, prohibiting the possession of "computers" with a memory storage capacity. As a result, his disks were confiscated by prison officials. In 1994 the New Hampshire state supreme court accepted Oropallo's petition for a writ of habeas corpus. Oropallo filed suit in federal court pursuant to 42 U. S.C. § 1983 claiming that the confiscation of his disks violated his right of access to the courts because the disks contained his pleadings, notes and other information needed to litigate his habeas corpus petition in the state supreme court. Oropallo sought a Preliminary Injunction (PI) seeking the return of some 60 disks.
The court noted that prisoners retain a constitutional right of meaningful access to the courts. Under the standard used in weighing petitions for PIs the court notes that a moving plaintiff must prove: 1) that they will suffer irreparable injury if the injunction is not granted; 2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; 3) the plaintiff has shown a likelihood of success on the merits; and 4) that the public interest will not be adversely affected by the granting of the injunction.
Using these standards the court granted Oropallo's motion for a PI. The court held that Oropallo's state court proceedings were at a critical juncture and that if the disks were not returned to him he would suffer irreparable harm. The court ordered prison officials to return 12 of the 60 disks, which the court had examined and held relevant to the action, holding that Oropallo had shown a likelihood of success on the merits. The court's order was that prison officials had to allow Oropallo to print out the entire contents of the 12 disks in question after which the disks would be returned to the court and the court would release them to one of Oropallo's representatives. See: Oropallo v. Ackerman, 856 F. Supp 35 (D NH 1994).
The court noted that prisoners retain a constitutional right of meaningful access to the courts. Under the standard used in weighing petitions for PIs the court notes that a moving plaintiff must prove: 1) that they will suffer irreparable injury if the injunction is not granted; 2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; 3) the plaintiff has shown a likelihood of success on the merits; and 4) that the public interest will not be adversely affected by the granting of the injunction.
Using these standards the court granted Oropallo's motion for a PI. The court held that Oropallo's state court proceedings were at a critical juncture and that if the disks were not returned to him he would suffer irreparable harm. The court ordered prison officials to return 12 of the 60 disks, which the court had examined and held relevant to the action, holding that Oropallo had shown a likelihood of success on the merits. The court's order was that prison officials had to allow Oropallo to print out the entire contents of the 12 disks in question after which the disks would be returned to the court and the court would release them to one of Oropallo's representatives. See: Oropallo v. Ackerman, 856 F. Supp 35 (D NH 1994).
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Related legal case
Oropallo v. Ackerman
| Year | 1994 |
|---|---|
| Cite | 856 F.Supp 35 (D NH 1994) |
| Level | District Court |
Charles J. Oropallo v. Loran Ackerman, et al
Civil No. 93-209-SD
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
856 F. Supp. 35; 1994 U.S. Dist. LEXIS 13486
April 28, 1994, Decided
COUNSEL: [**1] Charles J. Oropallo, PRO SE, Concord, NH.
For WARDEN, NEW HAMPSHIRE STATE PRISON, MICHAEL J. CUNNINGHAM, Individually, LOREN ACKERMAN, Individually, LOREN ACKERMAN, in his official capacity as an employee of the NH Dept. of Corrections, COMMISSIONER, NH DEPARTMENT OF CORRECTIONS, RONALD L. POWELL, Individually, MICHAEL BROWN, in his official capacity as an employee of the NH Dept. of Corrections, MICHAEL BROWN, Individually, STEVEN SOULE, in his official capacity as an employee of the NH Dept. of Corrections, STEVEN SOULE, Individually, LAURENT DROUIN, in his official capacity as an employee of the NH Dept. of Corrections, LAURENT DROUIN, Individually, DENNIS LACERTE, in his official capacity as an employee of the NH Dept. of Corrections, DENNIS LACERTE, Individually, STEPHEN J. JUDGE, in his official capacity as an employee of the NH Dept. of Corrections, STEPHEN J. JUDGE, Individually, ROBERT K. DREW, in his official capacity as an employee of the NH Dept. of Corrections, ROBERT K. DREW, Individually, JOHN DOES, As yet unidentified numbers 1 through 3, defendants: Lucy C. Hodder, Esq., Office of Attorney General Civil Bureau, Concord, NH.
JUDGES: Devine
OPINIONBY: SHANE DEVINE
OPINION: [*36] ORDER
Plaintiff brings this action under 42 U.S.C. ç 1983 n1 for denial of his fundamental constitutional right of access to the courts. The defendants in this action are employees of the New Hampshire Department of Corrections and are named in their individual and official capacities. n2
n1 In relevant part, 42 U.S.C. ç 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
n2 Although the United States Supreme Court has held that "neither a State nor its officials acting in their official capacities are 'persons' under ç 1983," Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), it has also reiterated that, "Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under ç 1983 because 'official-capacity actions for prospective relief are not treated as actions against the State.' Kentucky v. Graham, 473 U.S. [159], 167 n.14 [(1985)]; Ex parte Young, 209 U.S. 123, 159-160, 52 L. Ed. 714, 28 S. Ct. 441 (1908)." Id., 491 U.S. at 71 n.10.
[**2]
This order addresses plaintiff Charles J. Oropallo's motion for a temporary restraining order and/or preliminary injunction ordering that defendants allow him to receive his data disks previously removed from the prison.
1. Factual Background
Plaintiff is currently incarcerated in New Hampshire State Prison (NHSP). With permission from the Warden of NHSP, plaintiff purchased a Smith Corona PWP (Personal Word Processor) in 1991. Thereafter, plaintiff received data disks for the word processor through the mail. Plaintiff used this word processor to prepare legal documents and store them on sixty data disks.
In March 1994, the New Hampshire Supreme Court accepted the case of Oropallo, Charles J. v. Commissioner of Corrections, No. 93-855, based on plaintiff's petition for a writ of habeas corpus. On April 25, 1994, the Clerk's Office of the New Hampshire Supreme Court informed this court that briefs in said case would be due within one to three months. The Attorney General for the State of New Hampshire, counsel for the defendants in the instant action, is counsel for the defendant in case No. 93-855.
Pursuant to NHSP rules prohibiting inmates from possessing computer [**3] hardware with information storage capacity, plaintiff's data disks were confiscated and removed from NHSP on June 30, 1992.
In its order of March 30, 1994, this court stated,
The determinative issue in this 42 U.S.C. ç 1983 action is whether plaintiff Charles J. Oropallo's constitutional right of access to the courts is being infringed by officials at New Hampshire State Prison (NHSP) by his being denied access to certain Smith Corona PWP (Personal Word Processor) data disks containing his legal papers.
March 30, 1994, Order at 1.
In said order, the court requested the parties to submit by April 15, 1994, "sworn [*37] affidavits on the issue of whether 'the loss of [the] particular documents [contained on said data disks] deprived [plaintiff] of the ability to participate meaningfully in the legal process . . . .' Sowell v. Vose, 941 F.2d 32, 35 (1st Cir. 1991)." In response, on April 5, 1994, plaintiff filed Plaintiff's Sworn Affidavit in Compliance with 3/30/94 Order. On April 18, 1994, defendants indicated to the court that they would not submit such affidavit. Defendants' Statement Regarding Prejudice at 1. Further, [**4] the court ordered plaintiff to submit the data disks to this court by April 15, 1994. n3 The data disks were submitted to the court on plaintiff's behalf on April 6, 1994.
n3 The court noted that plaintiff had alleged that the data disks had been retrieved outside NHSP by an elderly acquaintance he identified as Sophie F. DeForte. Plaintiff has further alleged that Ms. DeForte was unable to print the contents of his data disks onto paper.
The court further notes that plaintiff currently retains possession of his word processor.
The court has examined plaintiff's sixty data disks and has determined that twelve contain information relevant to plaintiff's petition for a writ of habeas corpus. See Appendix to this Order.
In his affidavit, plaintiff states,
1. During the course of about a one year period, I acquired sixty word processor disks in good faith through proper property channels at no expense to the State. These disks are of a special variety usable only on the specific word processor made by Smith Corona [**5] that I own and possess through permission of the Warden. The primary purpose for my disks was to store my legal notes, correspondence, and pleadings. As a secondary purpose, I utilized them for purposes of my New England College course work, in which I am enrolled through the prison.
2. At the time when I started accumulating my disks, the prison was endeavoring to limit the quantity of paperwork in possession of inmates, and storing my pleadings on notes on disks was an ideal method of complying with the administration's wishes. On my disks, inter alia, I organized and built pleadings for a petition for a writ of habeas corpus attacking what I believe to have been an unlawful conviction in State court leading to my being incarcerated. . . .
3. Most of the arguments and research used within the various notes and pleadings contained on my disks were acquired over the years from numerous attorneys with whom I no longer have any way to contact. My notes and pleadings consist of data I typed in from numerous paper notes and files that became redundant as a result of being typed onto disk - since I had no idea in the world that the disks would be declared contraband to force me to get [**6] rid of them. I now cannot replace this information.
. . . .
6. The pleadings contained within these disks would take possibly years for me to develop once again, if I could ever do so. By not being allowed to have my disks and complete my habeas petition, I am effectively being barred from participating meaningfully in the legal process. Not only did I make my point perfectly clear to members of the administration regarding the disks containing my legal work and that they were denying me access to the courts by taking them, but the administration was directly aware of this according to Mr. Laurent Drouin's statements to me indicating that "investigations" was reading the disks, and that they (the disks) appeared to contain nothing but my legal work.
7. I have never had any intent to utilize my disks for any wrongful or illegal purposes, and my record consisting of over my nine years of incarceration (with only two disciplinary infractions on my record) fully supports my overall propensity and willingness to abide by the rules.
In their Memorandum of Law in Support of their Motion to Dismiss, defendants assert,
It is clear that plaintiff is merely alleging that his inability to [**7] keep extensive storage documents on disks makes keeping up with his prodigious litigiousness more difficult. Ten years ago few, if any, of the most prestigious law firms had memory [*38] capacity, yet litigation proceeded, and courts were accessed.
Id. at 8.
2. Plaintiff's Right of Access Claim
The right of access is a discrete, constitutional right, derived from various constitutional sources. It springs in part from the due process clause, Wolff v. McDonnell, 418 U.S. 539, 579, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); the privileges and immunities clause, Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142, 148, 52 L. Ed. 143, 28 S. Ct. 34 (1907); and the First Amendment, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972). See generally Ryland v. Shapiro, 708 F.2d 967, 971-72 (5th Cir. 1983). The right of access is fundamental. Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977).
It follows logically that the allegation of intentional violation of the right of access to the courts states a cause of action under ç 1983.
Simmons v. Dickhaut, 804 F.2d 182, 183 (1st Cir. 1986), [**8] aff'd, 961 F.2d 1565 (1st Cir. 1992).
However, the First Circuit has held that,
The loss of a few documents is not inherently prejudicial. Absent some further showing that the loss of those particular documents deprived [plaintiff] of the ability to participate meaningfully in the legal process, a court cannot say that a constitutional deprivation has occurred.
Sowell v. Vose, supra, 941 F.2d at 35.
3. Preliminary Injunction
In this Circuit, the standards for granting preliminary injunctive relief are unambiguous:
(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.
Asseo v. Centro Medico del Turabo, 900 F.2d 445, 454 (1st Cir. 1990) (quoting Women's Community Health Ctr., Inc. v. Cohen, 477 F. Supp. 542, 544 (D. Me. 1979)).
a. Irreparable [**9] Injury
The court finds the evidence before it sufficient to demonstrate that in the absence of injunctive relief plaintiff will suffer irreparable harm by being denied access, at a critical moment in his proceeding before the New Hampshire Supreme Court, to the voluminous and relevant legal research and writings contained in the twelve data disks identified in the Appendix attached hereto.
b. Injury versus Harm to Defendant/Public Interest
The injunctive relief contemplated by the court would be confined to an order requiring defendants to provide plaintiff with access to the twelve data disks identified in the Appendix for the sole purpose of permitting plaintiff, at his own expense and using his own word processor, to print the contents of said data disks onto paper. The court is satisfied that such order would not interfere with the state's interest in the prison's prohibition against the possession of computer hardware with information storage capacity because said order would not allow plaintiff the use of said data disks for any purpose other than the recovery of his habeas corpus petition material.
c. Likelihood of Success on the Merits
Based on the evidence before [**10] it, the court finds that plaintiff has shown he is likely to prevail on the merits of his claim for intentional violation of his right of access to the courts.
Conclusion
The court herewith grants plaintiff's motion for a preliminary injunction (document 33) to the extent that it herewith orders defendants, beginning, at the latest, on Friday, May 6, 1994, to provide plaintiff with access to the twelve data disks identified in the Appendix for the sole purpose of permitting plaintiff, at his own expense and using his own word processor, to print the contents of said data disks onto paper. Such access shall be provided until plaintiff has printed [*39] the contents of said data disks onto paper. n4 Thereafter, defendants shall return said data disks to this court, whereupon this court will release plaintiff's sixty data disks to the custody of a representative of the plaintiff.
n4 The court notes that nothing in this order is to be construed as requiring defendants to permit plaintiff to retain said data disks for any other use.
[**11]
SO ORDERED.
Shane Devine, Senior Judge
United States District Court
April 28, 1994
________________________________________________________________________________
APPENDIX
DISKS AND FILES CONTAINED THEREIN
Disk Label Relevant File
"State v. Oropallo, 3/85 Trial Transcript "Transcript
Excerpts, Starting File" (Side A of Data Excerpt 1"
Disk No. 1)
"State v. Oropallo, 3/85 Trial Transcript "Transcript
Excerpts, Dictionary" (Side B of Disk 1) Excerpt 2"
"State v. Oropallo, 3/85 Trial Transcript "Transcript
Excerpts" (Side B of Disk 2) Excerpt 3"
[Unlabeled] (Side A of Disk 3) "Cases"
"Oropallo v. Cunningham, Petition for "Briefs in Support:
Writ of Habeas Corpus, Petition, #1, 10"
Dictionary, Brief Sections"
(Side A of Disk 4)
"Oropallo v. Cunningham, Petition for "Briefs in Support:
Writ of Habeas Corpus, Remaining Brief #2, 3, 4, 5, 6, 21"
Sections" (Side B of Disk 4)
"Oropallo v. Cunningham, Petition for "Briefs in Support:
Writ of Habeas Corpus, Remaining Brief #8, 10, 11, Cov"
Sections" (Side A of Disk 5)
"Oropallo v. Cunningham, Petition for "Briefs in Support:
Writ of Habeas Corpus, Remaining Brief #9, 12, 13, 14, 15
Sections" (Side B of Disk 5) 16, 17, 18"
"Oropallo v. Cunningham, Petition for "Briefs in Support":
Writ of Habeas Corpus, Remaining Brief #7, 20, 22
Sections & Dictionary" (Side A of Disk 6)
"Oropallo v. Cunningham, Petition for "Appt Counsel
Writ of Habeas Corpus, Supplemental Motion", "Petition
Motions," (Side B of Disk 6) for Writ", Brief in
Support #19", "Brief
in Support App",
"Pauper Motion",
"Brief in Support
#23
DISKS AND FILES CONTAINED THEREIN
"Habeas Corpus Supporting Brief, "Briefs in Support:
Argument 0, 1, Habeas Specific #0, 1"
Dictionary" (Side A of Disk 7)
"Habeas Corpus Supporting Brief, "Briefs in Support:
Argument 2, 3, 5, 6, 21" 2, 3, 4, 5, 6, 21
(Side B of Disk 7)
"Habeas Corpus Supporting Brief, "Briefs in Support:
Argument 8, 10, 11, Cover" #8, 10, 11, Cov"
(Side A of Disk 8)
"Habeas Corpus Supporting Brief, "Briefs in Support:
Arguments 9, 12, 13, 14, 15, 16, 17, 18" 9, 12, 13, 14, 15,
(Side B of Disk 8) 16, 17, 18"
"Habeas Corpus Supporting Brief, "Briefs in Support:
Arguments 7, 20, 22, General Setup, 7, 20, 22
Habeas Specific Dictionary
(Side A of Disk 9)
"Habeas Corpus Supporting Brief, "Brief in Support
Arguments 19, 23, Appendix, General App", "Pauper
Setup, Court Hierarchy, Pauper Motion, Mition", "Petition
Counsel Appointment, Petition for A Writ for Writ", "Brief in
of Habeas Corpus" (Side B of Disk 9) Support #23", Appt
Counsel Motion",
"Brief in Support
#19"
"Information Copies on Hand" "Cases"
(Side A of Disk 10)
"Legal Materials, Assorted Petitions/ "11/91 Habeas &
Writs/Motions" (Side B of Disk 11) Brief"
[Unlabeled] "Briefs in Support:
(Side A of Disk 12) #8, 10, 11, Cov"
[Unlabeled] Briefs in Support:
(Side B of Disk 12) 9, 12, 13, 14, 15,
16, 17, 18"
________________________________________________________________________________
[**12]
Civil No. 93-209-SD
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
856 F. Supp. 35; 1994 U.S. Dist. LEXIS 13486
April 28, 1994, Decided
COUNSEL: [**1] Charles J. Oropallo, PRO SE, Concord, NH.
For WARDEN, NEW HAMPSHIRE STATE PRISON, MICHAEL J. CUNNINGHAM, Individually, LOREN ACKERMAN, Individually, LOREN ACKERMAN, in his official capacity as an employee of the NH Dept. of Corrections, COMMISSIONER, NH DEPARTMENT OF CORRECTIONS, RONALD L. POWELL, Individually, MICHAEL BROWN, in his official capacity as an employee of the NH Dept. of Corrections, MICHAEL BROWN, Individually, STEVEN SOULE, in his official capacity as an employee of the NH Dept. of Corrections, STEVEN SOULE, Individually, LAURENT DROUIN, in his official capacity as an employee of the NH Dept. of Corrections, LAURENT DROUIN, Individually, DENNIS LACERTE, in his official capacity as an employee of the NH Dept. of Corrections, DENNIS LACERTE, Individually, STEPHEN J. JUDGE, in his official capacity as an employee of the NH Dept. of Corrections, STEPHEN J. JUDGE, Individually, ROBERT K. DREW, in his official capacity as an employee of the NH Dept. of Corrections, ROBERT K. DREW, Individually, JOHN DOES, As yet unidentified numbers 1 through 3, defendants: Lucy C. Hodder, Esq., Office of Attorney General Civil Bureau, Concord, NH.
JUDGES: Devine
OPINIONBY: SHANE DEVINE
OPINION: [*36] ORDER
Plaintiff brings this action under 42 U.S.C. ç 1983 n1 for denial of his fundamental constitutional right of access to the courts. The defendants in this action are employees of the New Hampshire Department of Corrections and are named in their individual and official capacities. n2
n1 In relevant part, 42 U.S.C. ç 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
n2 Although the United States Supreme Court has held that "neither a State nor its officials acting in their official capacities are 'persons' under ç 1983," Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), it has also reiterated that, "Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under ç 1983 because 'official-capacity actions for prospective relief are not treated as actions against the State.' Kentucky v. Graham, 473 U.S. [159], 167 n.14 [(1985)]; Ex parte Young, 209 U.S. 123, 159-160, 52 L. Ed. 714, 28 S. Ct. 441 (1908)." Id., 491 U.S. at 71 n.10.
[**2]
This order addresses plaintiff Charles J. Oropallo's motion for a temporary restraining order and/or preliminary injunction ordering that defendants allow him to receive his data disks previously removed from the prison.
1. Factual Background
Plaintiff is currently incarcerated in New Hampshire State Prison (NHSP). With permission from the Warden of NHSP, plaintiff purchased a Smith Corona PWP (Personal Word Processor) in 1991. Thereafter, plaintiff received data disks for the word processor through the mail. Plaintiff used this word processor to prepare legal documents and store them on sixty data disks.
In March 1994, the New Hampshire Supreme Court accepted the case of Oropallo, Charles J. v. Commissioner of Corrections, No. 93-855, based on plaintiff's petition for a writ of habeas corpus. On April 25, 1994, the Clerk's Office of the New Hampshire Supreme Court informed this court that briefs in said case would be due within one to three months. The Attorney General for the State of New Hampshire, counsel for the defendants in the instant action, is counsel for the defendant in case No. 93-855.
Pursuant to NHSP rules prohibiting inmates from possessing computer [**3] hardware with information storage capacity, plaintiff's data disks were confiscated and removed from NHSP on June 30, 1992.
In its order of March 30, 1994, this court stated,
The determinative issue in this 42 U.S.C. ç 1983 action is whether plaintiff Charles J. Oropallo's constitutional right of access to the courts is being infringed by officials at New Hampshire State Prison (NHSP) by his being denied access to certain Smith Corona PWP (Personal Word Processor) data disks containing his legal papers.
March 30, 1994, Order at 1.
In said order, the court requested the parties to submit by April 15, 1994, "sworn [*37] affidavits on the issue of whether 'the loss of [the] particular documents [contained on said data disks] deprived [plaintiff] of the ability to participate meaningfully in the legal process . . . .' Sowell v. Vose, 941 F.2d 32, 35 (1st Cir. 1991)." In response, on April 5, 1994, plaintiff filed Plaintiff's Sworn Affidavit in Compliance with 3/30/94 Order. On April 18, 1994, defendants indicated to the court that they would not submit such affidavit. Defendants' Statement Regarding Prejudice at 1. Further, [**4] the court ordered plaintiff to submit the data disks to this court by April 15, 1994. n3 The data disks were submitted to the court on plaintiff's behalf on April 6, 1994.
n3 The court noted that plaintiff had alleged that the data disks had been retrieved outside NHSP by an elderly acquaintance he identified as Sophie F. DeForte. Plaintiff has further alleged that Ms. DeForte was unable to print the contents of his data disks onto paper.
The court further notes that plaintiff currently retains possession of his word processor.
The court has examined plaintiff's sixty data disks and has determined that twelve contain information relevant to plaintiff's petition for a writ of habeas corpus. See Appendix to this Order.
In his affidavit, plaintiff states,
1. During the course of about a one year period, I acquired sixty word processor disks in good faith through proper property channels at no expense to the State. These disks are of a special variety usable only on the specific word processor made by Smith Corona [**5] that I own and possess through permission of the Warden. The primary purpose for my disks was to store my legal notes, correspondence, and pleadings. As a secondary purpose, I utilized them for purposes of my New England College course work, in which I am enrolled through the prison.
2. At the time when I started accumulating my disks, the prison was endeavoring to limit the quantity of paperwork in possession of inmates, and storing my pleadings on notes on disks was an ideal method of complying with the administration's wishes. On my disks, inter alia, I organized and built pleadings for a petition for a writ of habeas corpus attacking what I believe to have been an unlawful conviction in State court leading to my being incarcerated. . . .
3. Most of the arguments and research used within the various notes and pleadings contained on my disks were acquired over the years from numerous attorneys with whom I no longer have any way to contact. My notes and pleadings consist of data I typed in from numerous paper notes and files that became redundant as a result of being typed onto disk - since I had no idea in the world that the disks would be declared contraband to force me to get [**6] rid of them. I now cannot replace this information.
. . . .
6. The pleadings contained within these disks would take possibly years for me to develop once again, if I could ever do so. By not being allowed to have my disks and complete my habeas petition, I am effectively being barred from participating meaningfully in the legal process. Not only did I make my point perfectly clear to members of the administration regarding the disks containing my legal work and that they were denying me access to the courts by taking them, but the administration was directly aware of this according to Mr. Laurent Drouin's statements to me indicating that "investigations" was reading the disks, and that they (the disks) appeared to contain nothing but my legal work.
7. I have never had any intent to utilize my disks for any wrongful or illegal purposes, and my record consisting of over my nine years of incarceration (with only two disciplinary infractions on my record) fully supports my overall propensity and willingness to abide by the rules.
In their Memorandum of Law in Support of their Motion to Dismiss, defendants assert,
It is clear that plaintiff is merely alleging that his inability to [**7] keep extensive storage documents on disks makes keeping up with his prodigious litigiousness more difficult. Ten years ago few, if any, of the most prestigious law firms had memory [*38] capacity, yet litigation proceeded, and courts were accessed.
Id. at 8.
2. Plaintiff's Right of Access Claim
The right of access is a discrete, constitutional right, derived from various constitutional sources. It springs in part from the due process clause, Wolff v. McDonnell, 418 U.S. 539, 579, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); the privileges and immunities clause, Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142, 148, 52 L. Ed. 143, 28 S. Ct. 34 (1907); and the First Amendment, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972). See generally Ryland v. Shapiro, 708 F.2d 967, 971-72 (5th Cir. 1983). The right of access is fundamental. Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977).
It follows logically that the allegation of intentional violation of the right of access to the courts states a cause of action under ç 1983.
Simmons v. Dickhaut, 804 F.2d 182, 183 (1st Cir. 1986), [**8] aff'd, 961 F.2d 1565 (1st Cir. 1992).
However, the First Circuit has held that,
The loss of a few documents is not inherently prejudicial. Absent some further showing that the loss of those particular documents deprived [plaintiff] of the ability to participate meaningfully in the legal process, a court cannot say that a constitutional deprivation has occurred.
Sowell v. Vose, supra, 941 F.2d at 35.
3. Preliminary Injunction
In this Circuit, the standards for granting preliminary injunctive relief are unambiguous:
(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.
Asseo v. Centro Medico del Turabo, 900 F.2d 445, 454 (1st Cir. 1990) (quoting Women's Community Health Ctr., Inc. v. Cohen, 477 F. Supp. 542, 544 (D. Me. 1979)).
a. Irreparable [**9] Injury
The court finds the evidence before it sufficient to demonstrate that in the absence of injunctive relief plaintiff will suffer irreparable harm by being denied access, at a critical moment in his proceeding before the New Hampshire Supreme Court, to the voluminous and relevant legal research and writings contained in the twelve data disks identified in the Appendix attached hereto.
b. Injury versus Harm to Defendant/Public Interest
The injunctive relief contemplated by the court would be confined to an order requiring defendants to provide plaintiff with access to the twelve data disks identified in the Appendix for the sole purpose of permitting plaintiff, at his own expense and using his own word processor, to print the contents of said data disks onto paper. The court is satisfied that such order would not interfere with the state's interest in the prison's prohibition against the possession of computer hardware with information storage capacity because said order would not allow plaintiff the use of said data disks for any purpose other than the recovery of his habeas corpus petition material.
c. Likelihood of Success on the Merits
Based on the evidence before [**10] it, the court finds that plaintiff has shown he is likely to prevail on the merits of his claim for intentional violation of his right of access to the courts.
Conclusion
The court herewith grants plaintiff's motion for a preliminary injunction (document 33) to the extent that it herewith orders defendants, beginning, at the latest, on Friday, May 6, 1994, to provide plaintiff with access to the twelve data disks identified in the Appendix for the sole purpose of permitting plaintiff, at his own expense and using his own word processor, to print the contents of said data disks onto paper. Such access shall be provided until plaintiff has printed [*39] the contents of said data disks onto paper. n4 Thereafter, defendants shall return said data disks to this court, whereupon this court will release plaintiff's sixty data disks to the custody of a representative of the plaintiff.
n4 The court notes that nothing in this order is to be construed as requiring defendants to permit plaintiff to retain said data disks for any other use.
[**11]
SO ORDERED.
Shane Devine, Senior Judge
United States District Court
April 28, 1994
________________________________________________________________________________
APPENDIX
DISKS AND FILES CONTAINED THEREIN
Disk Label Relevant File
"State v. Oropallo, 3/85 Trial Transcript "Transcript
Excerpts, Starting File" (Side A of Data Excerpt 1"
Disk No. 1)
"State v. Oropallo, 3/85 Trial Transcript "Transcript
Excerpts, Dictionary" (Side B of Disk 1) Excerpt 2"
"State v. Oropallo, 3/85 Trial Transcript "Transcript
Excerpts" (Side B of Disk 2) Excerpt 3"
[Unlabeled] (Side A of Disk 3) "Cases"
"Oropallo v. Cunningham, Petition for "Briefs in Support:
Writ of Habeas Corpus, Petition, #1, 10"
Dictionary, Brief Sections"
(Side A of Disk 4)
"Oropallo v. Cunningham, Petition for "Briefs in Support:
Writ of Habeas Corpus, Remaining Brief #2, 3, 4, 5, 6, 21"
Sections" (Side B of Disk 4)
"Oropallo v. Cunningham, Petition for "Briefs in Support:
Writ of Habeas Corpus, Remaining Brief #8, 10, 11, Cov"
Sections" (Side A of Disk 5)
"Oropallo v. Cunningham, Petition for "Briefs in Support:
Writ of Habeas Corpus, Remaining Brief #9, 12, 13, 14, 15
Sections" (Side B of Disk 5) 16, 17, 18"
"Oropallo v. Cunningham, Petition for "Briefs in Support":
Writ of Habeas Corpus, Remaining Brief #7, 20, 22
Sections & Dictionary" (Side A of Disk 6)
"Oropallo v. Cunningham, Petition for "Appt Counsel
Writ of Habeas Corpus, Supplemental Motion", "Petition
Motions," (Side B of Disk 6) for Writ", Brief in
Support #19", "Brief
in Support App",
"Pauper Motion",
"Brief in Support
#23
DISKS AND FILES CONTAINED THEREIN
"Habeas Corpus Supporting Brief, "Briefs in Support:
Argument 0, 1, Habeas Specific #0, 1"
Dictionary" (Side A of Disk 7)
"Habeas Corpus Supporting Brief, "Briefs in Support:
Argument 2, 3, 5, 6, 21" 2, 3, 4, 5, 6, 21
(Side B of Disk 7)
"Habeas Corpus Supporting Brief, "Briefs in Support:
Argument 8, 10, 11, Cover" #8, 10, 11, Cov"
(Side A of Disk 8)
"Habeas Corpus Supporting Brief, "Briefs in Support:
Arguments 9, 12, 13, 14, 15, 16, 17, 18" 9, 12, 13, 14, 15,
(Side B of Disk 8) 16, 17, 18"
"Habeas Corpus Supporting Brief, "Briefs in Support:
Arguments 7, 20, 22, General Setup, 7, 20, 22
Habeas Specific Dictionary
(Side A of Disk 9)
"Habeas Corpus Supporting Brief, "Brief in Support
Arguments 19, 23, Appendix, General App", "Pauper
Setup, Court Hierarchy, Pauper Motion, Mition", "Petition
Counsel Appointment, Petition for A Writ for Writ", "Brief in
of Habeas Corpus" (Side B of Disk 9) Support #23", Appt
Counsel Motion",
"Brief in Support
#19"
"Information Copies on Hand" "Cases"
(Side A of Disk 10)
"Legal Materials, Assorted Petitions/ "11/91 Habeas &
Writs/Motions" (Side B of Disk 11) Brief"
[Unlabeled] "Briefs in Support:
(Side A of Disk 12) #8, 10, 11, Cov"
[Unlabeled] Briefs in Support:
(Side B of Disk 12) 9, 12, 13, 14, 15,
16, 17, 18"
________________________________________________________________________________
[**12]