Opinion
C.A. No. 01-065 T
June 5, 2001
Report and Recommendation
The pro se plaintiff, Fred Dewitt, has filed the instant cause of action pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights. The plaintiff is currently incarcerated at the Adult Correctional Institution("ACI"), in Cranston, Rhode Island. Named as defendants are officials at the ACI.
Presently before the Court is the motion of the plaintiff for a preliminary injunction, pursuant to Fed.R.Civ.P. 65(a). The defendants have objected to the instant motion. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the plaintiff's motion be denied. I have determined that a hearing is not necessary. See Campbell Soup Co., v. Giles, 47 F.3d 467, 469 (1st Cir. 1995).
Background
Plaintiff Fred DeWitt has filed a complaint alleging a violation of his First, Fifth, Eighth, Ninth, and Fourteenth Amendment rights. In sum, plaintiff alleges that officials at the ACI are unconstitutionally preventing his wife, a former correctional officer, from visiting him at the prison. Plaintiff's instant motion, however, does not relate to the allegations asserted in the complaint. In the instant motion, plaintiff asserts that the officials at the ACI are not complying with provisions of the Morris rules, which allegedly require prison officials to "page" an inmate when unexpected visitors arrive to visit that inmate. Plaintiff, in the instant motion, seeks to have this Court order the defendants to "page" him when unexpected visitors arrive to see him.
Discussion
A court will issue a preliminary injunction to preserve the status quo and to prevent irreparable harm until the court has an opportunity to rule on the merits of the complaint. Thus, a moving party must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint. See Penn v. San Juan Hospital. Inc., 528 F.2d 1181, 1185 (10th Cir. 1975); Devose v. Herrington, 42 F.3d 470 (8th Cir. 1994).
Here, DeWitt's motion for a preliminary injunction is not related to preserving the district court's decision making power over the merits of his 42 U.S.C. § 1983 lawsuit. To the contrary, DeWitt's motion is based upon new assertions that are distinct from the claims raised in the Complaint. Accordingly, these new assertions cannot provide the basis for a preliminary injunction, and the plaintiff's motion should be denied.
Alternatively, the plaintiff's motion for a preliminary injunction should be denied because the plaintiff has not demonstrated that he would be likely to succeed on the merits. See Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991). Plaintiff brought the claim asserted in the instant motion allegedly pursuant to the so calledMorris rules. The Morris rules are state made rules and are to be enforced, if at all, in the state's jurisdiction. doctor v. Wall, 2001 WL 410737 (D.R.I.); Cugini v. Ventetuolo, 781 F. Supp. 107 (D.R.I. 1992). Thus, plaintiff is unlikely to succeed on the merits.
In considering whether to grant or deny a preliminary injunction, the movant must demonstrate the following four elements: (1) the likelihood of the movant's success on the merits;(2) the potential for irreparable injury;(3) the relevant balance of hardships if the restrainer does or does not issue;(4) and the effect on the public interest of a grant or denial of the motion. See Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991). Failure to demonstrate any one of these four elements prohibits the granting of a preliminary injunction.
Alternatively, if the plaintiff had brought this claim based upon a constitutional violation, he similarly has failed to demonstrate a likelihood of success of the merits. Incarceration brings about the necessary withdrawal or limitation of many privileges and rights. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800 (1974). A prisoner retains only those rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.Id. Prisoners do not have an unfettered right to visitation. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904 (1989); See e.g. Spear v. Sowders, 71 F.3d 626 (7th Cir. 1995).
In the instant motion, the plaintiff does not complain that he is denied visitation privileges. Rather, he complains of not being "paged" when an unexpected visitor arrives to see him. Since the Constitution does not endow the plaintiff with unfettered visitation, nor does it entitled him to be "paged" when unexpected visitors arrive to see him.
Conclusion
Accordingly, for the above mentioned reasons, I recommend that plaintiff's motion for a preliminary injunction be denied. Any objection to this report and recommendation must be specific and must be filed with the clerk of court within ten days of its receipt. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st dir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Company, 616 F.2d 603 (1st Cir. 1980).