Gray v. Perkins et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey M. Gray
v. Case No. 14-cv-386-PB
John Perkins et al.
REPORT AND RECOMMENDATION
Jeffrey M. Gray, an inmate at the New Hampshire State
Prison (“NHSP”), has filed numerous motions (doc. nos. 12, 13,
16, 19, 28-31, 34, 41, 45, and 46) seeking preliminary
injunctive relief. All but one of the defendants have objected.
See Doc. Nos. 48 and 55 (Objections).1 The requests for
injunctive relief have been referred to this magistrate judge
for a report and recommendation. See Jan. 28, 2015, Order; June
8, 2015, Order; July 10, 2015, Order.
Discussion
I. Preliminary Injunction Standard
“A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to
1Dr. Celia Englander, who is represented by separate
counsel, has not objected to the requests for injunctive relief.
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 1 of 10

2
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.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). Demonstration of both a
likelihood of success on the merits and irreparable harm in the
absence of an injunction is required to obtain preliminary
injunctive relief. See Voice of the Arab World, Inc. v. MDTV
Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)
(“‘[p]erhaps the single most important prerequisite for the
issuance of a preliminary injunction is a demonstration that if
it is not granted the applicant is likely to suffer irreparable
harm before a decision on the merits can be rendered.’”
(citation omitted)); Esso Standard Oil Co. v. Monroig–Zayas, 445
F.3d 13, 18 (1st Cir. 2006) (“‘if the moving party cannot
demonstrate that he is likely to succeed in his quest,’”
preliminary injunctive relief is properly denied without further
analysis (citation omitted)). The burden of proof on all four
preliminary injunction factors is on the movant. See Esso Std.
Oil Co., 445 F.3d at 18.
II. Injunction Requested and Objections
In his requests for preliminary injunctive relief, Gray
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 2 of 10

3
asks the court to issue an order:
 Enjoining defendants from denying Gray access to legal
resources and materials adequate to allow him to
litigate his pending matters in this court and the
state courts;
 Enjoining defendants from denying Gray access to the
Bible, religious books, and religious pamphlets
removed from his cell on October 9, 2014;
 Directing defendants to return Gray’s legal book and
other nonreligious written material removed from his
cell on October 9, 2014;
 Enjoining defendants from retaliating against Gray in
the future by transferring him to another facility, or
to less favorable NHSP housing;
 Enjoining defendants from interfering with,
inspecting, obtaining, or disclosing Gray’s
confidential and privileged mail and/or telephonic
communication, including legal mail, mail from the
Department of Veterans Affairs, and Gray’s
communications with his defense experts or
investigators; and
 Enjoining defendants from denying Gray photocopies of
the written logs documenting his incoming and outgoing
legal mail.
III. Likelihood of Success on the Merits
A. Retaliation Claim against Tripp and Perkins
Gray’s request for a preliminary injunction requiring
defendants to grant him law library access arguably arises, in
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 3 of 10

4
part, out of one claim that this court has allowed to proceed:
a claim alleging that defendants Roy Tripp and John Perkins
violated Gray’s First Amendment right to petition the government
for a redress of grievances by barring him from the library in
retaliation for his threat to bring an action against them in
federal court. The court addresses, therefore, whether Gray has
demonstrated a likelihood of success on the merits of that
retaliation claim, to the extent that his request for an
injunction granting him library access is premised upon it.
Gray wrote and filed his original complaint (doc. no. 1) on
August 29, 2014, the same day that he alleges defendants Tripp
and Perkins caused Gray to be removed and barred from the law
library. It is apparent, therefore, that Gray did not exhaust
his administrative remedies for any claim arising out of that
incident prior to filing this action, as is required by the
Prison Litigation Reform Act, 42 U.S.C. § 1997(e) (“PLRA”). See
Jones v. Bock, 549 U.S. 199, 211 (2007). This court allowed
that claim to go forward upon preliminary review as, generally,
exhaustion is an affirmative defense and is not part of the
plaintiff’s case. See id. at 216; Cruz Berríos v. González-
Rosario, 630 F.3d 7, 11 (1st Cir. 2010). Defendants have since
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 4 of 10

5
asserted PLRA exhaustion as a defense in their answer (doc. no.
40) to the complaint. Accordingly, while the claim was properly
served on the defendants, Gray’s failure to exhaust his
administrative remedies on that claim demonstrates that he is
not likely to succeed on the merits of that retaliation claim.
See Chambers v. Coplan, 82 F. App’x 710, 711 (1st Cir. 2003)
(motion for preliminary injunction may be properly denied on the
basis that plaintiff failed to exhaust his remedies for
underlying claims prior to filing suit). Accordingly, the
request for injunctive relief concerning the law library, to the
extent it arises from the August 29, 2014, retaliation claim,
should be denied.
B. Dismissed Claims
Gray’s remaining requests for injunctive relief to prevent
defendants from blocking his library access, and his requests
for preliminary injunctions to restore access to his
nonreligious written materials and to prevent interference with
his mail, all arise from claims that have been dismissed from
this action for failing to state a claim. See June 1, 2015,
Order (doc. no. 38) (accepting May 7, 2015, Report and
Recommendation (doc. no. 32) (“May 7 R&R”). It is axiomatic,
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 5 of 10

6
therefore, that Gray cannot demonstrate that he is likely to
succeed on the merits of those claims. Accordingly, the
requests for injunctive relief arising out of the facts
underlying those dismissed claims should be denied.
IV. Irreparable Harm
A. Transfer
Gray asserts, in support of his request for an order
prohibiting the defendants from transferring him, that: he is
afraid of being transferred because, as a sex offender, he would
be subject to harm in some housing situations; inmates at the
prison believe that NHSP officials frequently transfer inmates
in retaliation for filing civil lawsuits; and transfers
generally occur with very short notice to the prisoner.
Although Gray would prefer to remain in a particular facility or
housing area, he has failed to assert any facts that demonstrate
that he would be subject to irreparable harm if he were moved.
Since the day plaintiff filed this action, the defendants have
been aware of the existence of, or at least Gray’s intention to
bring, this action. In the ten months this matter has been
pending, Gray has not alleged that he was held in an unsafe
environment, or that defendants have failed to address any
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 6 of 10

7
safety concerns he has had. The court has previously found, in
the November 24, 2014, Order (doc. no. 15) denying Gray’s motion
to seal, that Gray failed to demonstrate either a significant
risk that defendants would transfer him to a different facility
or less favorable housing situation, or any particularized risk
of harm that would accrue from such a transfer, and Gray has
offered no grounds justifying this court’s reconsideration of
that determination.
Further, Gray does no more than speculate that he will be
subject to irreparable harm if he is transferred. To
demonstrate irreparable harm, Gray must state facts to show that
he might suffer harm in the future if the court fails to issue
the requested injunction. See Narragansett Indian Tribe v.
Guilbert, 934 F.2d 4, 6-7 (1st Cir. 1991) (“‘[s]peculative
injury does not constitute a showing of irreparable harm’”
(citation omitted)). Accordingly, the request for such an order
should be denied.
B. Religious Materials
Gray asserts that defendants have failed to return his
Bible, religious texts, and religious pamphlets to him after
seizing them from his cell on October 9, 2014, in violation of
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 7 of 10

8
his First Amendment rights. He seeks an order directing
defendants to refrain from denying him access to those items.
Prisoners have a First Amendment right to exercise their
religious beliefs, but the First Amendment does not require that
an inmate have access to his preferred means of doing so. Cf.
Turner v. Safley, 482 U.S. 78, 89 (1987) (in evaluating
reasonableness of impingement on a particular means of
exercising religion, court can examine whether other means of
exercising religion are available to inmate). Gray has not
asserted facts to show that he has no means, other than
possession of the specific items seized from his cell, of
exercising his religious beliefs. Gray has therefore failed to
meet his burden to demonstrate that he will be irreparably
harmed if the court fails to order defendants to return his
religious materials. Accordingly, the request for such
injunctive relief should be denied.
C. Copies of Legal Mail Logs
Gray states that from “time to time” an issue may arise in
one of his pending actions in court, in which he must
demonstrate compliance with the prison “mailbox rule,” to prove
the timeliness of a filing. Accordingly, it appears that Gray
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 8 of 10

9
has periodically requested, and received, copies of the legal
mail logs that show when he sent and received legal mail. On
one occasion, NHSP Lt. James Brown denied him a copy of a log.
Gray has not alleged, however, that he has actually been harmed
by the denial of any copy, or that he has needed a copy of a
particular log for a particular purpose, and was not provided
with a copy of that document. Further, Gray has not alleged
facts to show that he will likely need, and will not receive,
such a copy in the future. Gray has thus failed to show that he
would suffer irreparable harm in the absence of an injunction
requiring defendants to provide him with photocopies of his
legal mail logs. For that reason, Gray’s request for an order
prohibiting defendants from denying him copies of the log should
be denied.
Conclusion
For the foregoing reasons, the court recommends that Gray’s
motions seeking preliminary injunctive relief (doc. nos. 12, 13,
16, 19, 20, 28-31, 34, 41, and 46) be denied. Any objections
to this report and recommendation must be filed within fourteen
days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2).
Failure to file objections within the specified time waives the
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 9 of 10

10
right to appeal the district court’s order. See United States
v. De Jesús-Viera, 655 F.3d 52, 57 (1st Cir. 2011); Sch. Union
No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir.
2010).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
July 15, 2015
cc: Jeffrey M. Gray, pro se
Kenneth A. Sansone, Esq.
Jonathan A. Lax, Esq.
Case 1:14-cv-00386-PB Document 58 Filed 07/15/15 Page 10 of 10