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McCombs v. State

United States District Court, D. South Carolina, Charleston Division

June 21, 2019

John McCombs, Petitioner,
v.
State of South Carolina, Respondent.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

         This action has been filed by Petitioner, pro se and in forma pauperis, pursuant to 28 U.S.C. § 2241, alleging that his criminal conviction and subsequent commitment as a sexually violent predator are unlawful. Petitioner is in the custody of the South Carolina Sexually Violent Predator Program (the “Program”) of the South Carolina Department of Mental Health. Currently before the Court is Petitioner's Emergency Motion for Immediate Injunction. (Dkt. No. 12.) Petitioner asks that the Court order the employees at the Program to fulfill his request to make copies beyond the 25 pages allowed by the Program. (Id.) He states that without this injunctive relief, he will “not be able to fulfill the process of service obligation upon the submission of a brief.” (Id. at 1.) He states that the Program's refusal to fulfill his copy request amounts to a denial of access to the courts. (Id. at 2.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends the Court deny Petitioner's motion.

         STANDARD

         A preliminary injunction “protect[s] the status quo . . . to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litigation, 333 F.3d 517, 525 (4th Cir. 2003) (abrogated on other grounds by eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)). A preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

         To obtain a preliminary injunction, a plaintiff must show the following:

(1) That he is likely to succeed on the merits,

(2) that he is likely to suffer irreparable harm in the absence of preliminary relief,

(3) that the balance of equities tips in his favor, and

(4) that an injunction is in the public interest. Winter, 555 U.S. at 20.

         DISCUSSION

         Upon review, the Court finds that Petitioner has failed to make the required showing under Winter. As an initial matter, Petitioner has failed to demonstrate a likelihood of success on the merits of his claim for injunctive relief. The Supreme Court has stated that prisoners[1] must be allowed access to the courts that is “adequate, effective and meaningful.” Bounds v. Smith, 430 U.S. 817, 822 (1977) (holding that prisons must give inmates access to law libraries or direct legal assistance). However, “inmates do not have unlimited rights to photocopies or photocopying machines.” Lyons v. Clark, 694 F.Supp. 184, 188 (E.D. Va. 1988), aff'd, 887 F.2d 1080 (4th Cir. 1989); see also Carroll v. North Carolina Department of Corrections, No. 91-7562, 1991 WL 158146 (4th Cir. 1991) (Pro se prisoners may hand write legal papers to submit for submission to the Court); Johnson v. Moore, 948 F.2d 517, 521 (9th Cir. 1991) (“A denial of free photocopying does not amount to a denial of access to the courts.”); Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989) (“numerous courts have rejected any constitutional right to free and unlimited photocopying”). To state a claim, therefore, Petitioner must show that his access to the courts was effectively impeded by the denial, not just that the denial was unreasonable. See Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985); Jones v. Franzen, 697 F.2d 801, 803 (7th Cir. 1983) (holding that if denial of access “is unreasonable but not impeding [plaintiff] has not made out a prima facie case of violation of his constitutional rights.”).

         Here, Petitioner has attached his request for copies to his motion. The request form states Petitioner is “in need of copies, in order to file a brief in court, and the brief is ninety-four (94) pages in length. I already have the Order from the Federal District Court, so the filing needs to be completed.” (Dkt. No. 12-1.) Based on this request, it appears Petitioner misunderstands what is required of him at this stage in the proceedings. The Court issued an Order authorizing service in this action on June 6, 2019. (Dkt. No. 10.) In that Order, the only directive given to Petitioner was that “any documents filed subsequent to the initial pleading must be served on the parties.” (Id. at 2.) Service has only just been authorized, and the docket does not show that a summons has yet been served on Respondent. Further, Plaintiff's 94-page brief exceeds the page limit provided by Local Civil Rule 7.05, which states that “no memorandum shall exceed” 35 pages in the case of an initial brief and 15 pages in the case of any reply.[2] Local Civil Rule 7.05(B), D.S.C.

         In short, there is no reason for Petitioner to submit a brief at this time. Thus, the Court cannot find that Petitioner's access to the courts has been effectively impeded by the denial of the photocopying request. See, e.g., Briggs v. S.C. Dep't of Corr., No. 9:13-cv-1348-RMG, 2014 WL 1278173, at *14 (D.S.C. Mar. 27, 2014) (finding “nothing improper” about prison response to plaintiff s request for photocopies “that documents that have been solely originated, written, typed or created by an inmate are not copied”); Dugar v. Coughlin, 613 F.Supp. 849, 853 (S.D.N.Y. 1985) (Indigent prisoner litigants are not entitled to free photocopies or unlimited free postage).

         Next, Petitioner has failed to make a clear showing that he will suffer irreparable harm absent the injunctive relief. Petitioner indicates that Program policy allows him “up to 25 copies per month at no cost.” (Dkt. No. 12 at 1.) There is no indication that he is being categorically denied a right to make photocopies. Rather, he must pay for the photocopies, once he has exceeded the 25-copy limit. Such facts do not amount to a risk of irreparable harm.

         Finally, Petitioner has failed to establish that the balance of equities tips in his favor, and he has failed to show that an injunction is in the public interest. As Petitioner has not demonstrated a likelihood of success on the merits or more than a possibility of irreparable harm, and because the balance of the equities and the public interest involved do not warrant the extraordinary remedy of injunctive relief, Petitioner's motion for preliminary injunction should be denied.

         CONCLUSION

         For the foregoing reasons, this Court recommends that Petitioner's motion for an “immediate ...


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