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Gray v. Zenk

United States District Court, D. New Hampshire

August 1, 2017

Jeffrey M. Gray
v.
Michael A. Zenk, Warden, New Hampshire State Prison

          Jeffrey M. Gray, pro se

          Elizabeth C. Woodcock, Esq.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE

         Before the court in this habeas action are plaintiff Jeffrey M. Gray's four motions seeking preliminary and permanent injunctive relief.[1] See Doc. Nos. 17, 18, 23, 34. Respondent objects. See Doc. No. 32. The motions have been referred to the undersigned magistrate judge for a Report and Recommendation as to disposition. See Sept. 15, 2016 Order; Oct. 20, 2016 Order; Feb. 27, 2017 Order.

         Background

         Gray is serving a lengthy prison sentence for a felony sexual assault which is currently on appeal. He has filed this habeas action challenging the constitutionality of his conviction and sentence.

         Gray alleges that on September 2, 2016 and February 6, 2017, prison officials seized the legal materials Gray had in his possession at those times, and have withheld those materials from him since their seizure, pursuant to New Hampshire Department of Corrections Policy and Procedure Directive ("PPD") 9.02(N), which took effect in 2016, limiting the amount of legal material an inmate may possess. PPD 9.02(N) also requires legal materials that exceed that volume to be sent out of the prison or destroyed. Gray asserts that the resulting lack of access to his legal materials threatens his constitutionally protected rights to meaningfully access the courts and to petition the government for a redress of grievances. Gray seeks an Order from this court requiring the prison to allow him to access his legal materials, and to allow him to keep materials at the prison, in a manner that allows him access to those materials, in excess of what is permitted by PPD 9.02(N), asserting that he needs such materials to litigate his active cases in this court and the state courts.

         Gray also asserts that prison officials threatened to transfer him to less favorable housing conditions in retaliation for exercising his First Amendment right to petition the government for a redress of grievances. Gray therefore seeks an Order from this court prohibiting prison officials from moving him out of state, or within the state but to less favorable housing conditions, during the pendency of this action.

         Discussion

         I. Preliminary Injunction Standard

         "'A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, " of the claims underlying his action, "that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'" Glossip v. Gross, 135 S.Ct. 2726, 2736 (2015) (citation omitted). The court may rule on a motion for a preliminary injunction on the papers if it has before it "'adequate documentary evidence upon which to base an informed, albeit preliminary conclusion, '" and the parties have been afforded '' 'a fair opportunity to present relevant facts and arguments to the court, and to counter the opponent's submissions.'" Campbell Soup Co. v. Giles, 47 F.3d 467, 470-71 (1st Cir. 1995) (citations omitted). The parties have had such an opportunity to date, and an additional opportunity for briefing is provided by the objection period that follows the issuance of this Report and Recommendation.

         II. Availability of Relief

"Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus." An inmate's challenge to the circumstances of his confinement, however, may be brought under § 1983.

Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam)); see also Nelsonv. Campbell, 541 U.S. 637, 643 (2004) ("constitutional claims that merely challenge the conditions of a prisoner's confinement, whether the inmate seeks monetary or injunctive relief, fall outside of [the core of habeas corpus] and may be brought pursuant [42 U.S.C] § 1983 in the first instance"); Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). Where a habeas petitioner "seeks relief unrelated to his habeas petition. . . [t]he court does not have jurisdiction to consider such claims as part of a habeas petition." Kyricopoulos v. Murphy, No. ...


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