United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES MAGISTRATE JUDGE
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
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).
obtain a preliminary injunction, a plaintiff must show the
(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.
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 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
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. Local Civil Rule 7.05(B), D.S.C.
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).
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.
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
foregoing reasons, this Court recommends that
Petitioner's motion for an “immediate