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Plaintiff filed this letter previously (See Dkt. # 92). The letter was docketed, but was not

considered as it was not filed as a motion nor served on opposing counsel. (Dkt. # 93). The Court

has inferred that Plaintiff intends the letter to be in support of his motion for temporary relief as it

refers to “Rule 65 relief,” and has considered it as such. 

REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MATTHEW G. SILVA,

Plaintiff,

v.

CHRISTINE GREGOIRE, et al.,

Defendants.

Case No. C05-5731 RJB/KLS

REPORT AND RECOMMENDATION

 NOTED FOR: May 11, 2007

This 42 U.S.C. § 1983 Civil Rights action has been referred to United States Magistrate

Judge Karen L. Strombom pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Before

the court is Plaintiff’s motion for a temporary injunction. (Dkt. # 104). Plaintiff’s motion was

accompanied by a declaration and exhibits (Dkt. # 100, Exh. 1-3), and a letter to Judge Bryan. (Dkt.

# 105, Exh. 1).1

 Defendants oppose Plaintiff’s motion, arguing that Plaintiff has not met the

requirements of either the traditional or alternative tests which would warrant injunctive relief under

Fed. R. Civ. P. 65. (Dkt. # 106). 

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I. INJUNCTIVE RELIEF REQUESTED

Plaintiff is a Washington State prison inmate currently incarcerated at the Washington

Corrections Center (WCC) in Shelton, Washington. Plaintiff alleges that his First and Fourteenth

Amendment rights were violated when his grievances were stolen, he was retaliated against, he was

denied a pre-transfer hearing, and denied access to the courts while incarcerated at WCC between

October and November of 2004. (Dkt. # 14). Plaintiff seeks an order: (1) prohibiting Defendants

from retaliating against him; (2) prohibiting his transfer to Airway Heights Corrections Center; (3)

granting him exceptional access to the law library; (4) ordering Defendants to return documents

that were allegedly stolen from Plaintiff in Arizona; (5) ordering replacement of the stolen

documents if they cannot be returned to him; (6) granting him access to a constitutionally adequate

law library at all times; and (7) requiring Defendants to update and expand legal materials available

in the library. (Dkt. # 104).

II. STANDARD OF REVIEW 

Under the Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA), Plaintiff is not entitled to

prospective relief unless the court enters the necessary findings required by the Act: 

The court shall not grant or approve any prospective relief unless the court finds that

such relief is narrowly drawn, extends no further than necessary to correct the

violation of a Federal right, and is the least intrusive means necessary to correct the

violation of the Federal right. The court shall give substantial weight to any adverse

impact on public safety or the operation of a criminal justice system caused by the

relief. 

18 U.S.C. § 3626(a)(1)(A) (emphasis added). 

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In civil rights cases, injunctions must be granted sparingly and only in clear and plain cases.

Rizzo v. Goode, 423 U.S. 362, 378 (1976). The purpose of a preliminary injunction is to preserve

the status quo between the parties pending a final determination on the merits. Univ. of Texas v.

Camenisch, 451 U.S. 390, 395 (1981); Chalk v. United States Dist. Ct., 840 F.2d 701, 704 (9th Cir.

1988). It is appropriate to grant in a preliminary injunction “intermediate relief of the same

character as that which may be granted finally.” De Beers Consol. Mines v. U.S., 325 U.S. 212, 220

(1945); Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997). 

In order to justify the extraordinary measure of injunctive relief under Federal Rule of Civil

Procedure 65, the moving party bears a heavy burden. Canal Authority of the State of Florida v.

Callaway, 489 F.2d 567 (5th Cir. 1974). A party seeking a preliminary injunction must fulfill one of

two standards: the “traditional” or the “alternative.” Johnson v. California State Bd. Of

Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995); Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir.

1987). Although two tests are recognized, they are not totally distinct tests. Rather, they are

“extremes of a single continuum.” Funds for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir.

1992). 

Under the traditional standard, a court may issue preliminary relief if it finds that: (1) the

moving party will suffer irreparable injury if the relief is denied; (2) the moving party will probably

prevail on the merits; (3) the balance of potential harm favors the moving party; and (4) the public

interest favors granting relief. Cassim, 824 F.2d at 795. Under the alternative standard, the moving

party may meet its burden by demonstrating either (1) a combination of probable success and the

possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships

tips sharply in its favor. Id. at 795. Under either test, Plaintiff fails to carry his burden to obtain

preliminary injunctive relief in this case. 

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III. DISCUSSION

A. Plaintiff Has Not Demonstrated That He Will Suffer Irreparable Harm

Plaintiff argues that he is entitled to the injunctive relief he seeks because he is denied access

to an adequate law library, he has received various adverse legal rulings from various courts, and he

is the victim of a conspiracy to transfer him and harass him in retaliation for his litigation practices.

(Dkt. # 101). Other than these very general allegations, however, Plaintiff offers no evidence that he

has been irreparably harmed or that he will suffer harm in the future if the Court fails to issue the

extraordinary relief requested in his motion.

To secure injunctive relief, a plaintiff must demonstrate “a very significant possibility” that 

 future harm will ensue. Nelsen v. King County, 895 F.2d 1248, 1250 (9th Cir. 1990). The burden of

showing a likelihood of a recurrence of harm is “firmly on the plaintiff.” Id. at 1251. To obtain

preliminary injunctive relief, the moving party must demonstrate exposure to a “significant risk of

irreparable harm” absent the requested judicial intervention. Associated General Contractors of

California, Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991); Caribbean

Marine Services Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). The moving party “must do

more than merely allege imminent harm,” he “must demonstrate immediate threatened injury as a

prerequisite to preliminary injunctive relief.” Associated General Contractors, 950 F.2d at 1410. 

Plaintiff makes several general and unsupported allegations but offers no evidence upon

which this Court may adequately determine whether he has suffered actual harm or is likely to suffer

future harm. For example, Plaintiff alleges generally that he is being denied the use of an “adequate”

law library; that he requires the use of a library “until such time as he is able to address the damage

he has sustained to pending cases he is litigating, and requires Defendants to provide him with a

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“constitutionally adequate” law library. (Dkt. # 104 at 1-2). It is true that prisoners have a federal

constitutional right of access to the courts guaranteed by the Fourteenth Amendment. See Bounds v.

Smith, 430 US. 817, 821 (1977); see also Royse v. Superior Court, 779 F.2d 573 (9th Cir.1986). 

However, "prison law libraries and legal assistance programs are not ends in themselves, but only the

means for ensuring ‘a reasonably adequate opportunity to present claimed violations of fundamental

constitutional rights to the courts.’" Lewis v. Casey, 518 US. 343, 351, 116 S. Ct. 2174, 135 L. Ed.

2d 606 (1996); Bounds, 410 US. at 825.

The Ninth Circuit has established a two-step analysis for determining whether a right of

 access claim has merit. First, the Court decides "whether the claimant alleges a denial of

adequate law libraries or adequate assistance from persons trained in the law." Sands v. Lewis,

886 F.2d 1166, 1171 (9th Cir. 1989). If the claim does not involve denial of either, the court

must determine whether the plaintiff alleges an actual injury to court access. Id. "An ‘actual

injury’ is a specific instance where an inmate was actually denied access to the courts. Sands, 886 at

1171. In order to state a claim for relief, the plaintiff must establish either that (1) he was denied

access to an adequate law library or trained legal assistance or (2) he was actually denied access to

the courts. Id. A “temporary deprivation of an inmate's legal materials does not, in all cases, rise to

a constitutional deprivation." Vigliotto v. Terry, 873 F.2d 1201, 1202-03 (9th Cir. 1989). An

"actual injury" is a specific instance where an inmate was actually denied access to the courts. Id. 

Plaintiff has not made even a preliminary showing for a denial of access to courts claim. Nor

has he explained how the Defendants have participated in any of the harms he describes. There is no

evidence that any of the Defendants denied Plaintiff access to a law library, have not provided

Plaintiff with exceptional law library access, if needed, stole Plaintiff’s documents in Arizona, or

were involved in Plaintiff’s incarceration in Arizona. 

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Plaintiff also requests an order prohibiting his transfer to Airway Heights Corrections Center. 

Inmates have no right to placement in a particular correctional institution. See, Meachum v. Fano,

427 U.S. 215, 225 (1976). Moreover, there is no evidence that such a transfer is imminent or even

contemplated. Therefore, Plaintiff’s request for an order preventing his transfer to Airway Heights,

must be denied. 

For the foregoing reasons, the undersigned recommends that Plaintiff’s request for injunctive

relief be denied.

B. Plaintiff Has Not Demonstrated That He Will Prevail On The Merits

Plaintiff has made no argument that he will prevail on the merits of his lawsuit. In addition,

Defendants have filed a motion for summary judgment on Plaintiff’s claims (Dkt. # 87). That motion

is presently the subject of a separate Report and Recommendation, in which the undersigned is

recommending that Plaintiff’s claims be dismissed. Plaintiff did not respond to that motion and the

Court may consider Plaintiff’s failure to respond as an admission that the motion for summary

judgment has merit. CR7(b)(2). 

Accordingly, Plaintiff’s motion for temporary injunctive relief may be denied on the basis that

Plaintiff has not met his burden of demonstrating a likelihood of prevailing on the merits. 

3. C. Plaintiff Has Not Demonstrated That The Burden Of Potential Harms Favors The

Plaintiff or That the Public Interest Favors Granting Relief

There is no evidence before the Court that Defendants violated the law or abused their own

policies. Plaintiff has simply stated that he is the subject of retaliation and that he does not have

adequate legal access, without providing evidence to support either assertion. Accordingly, the

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undersigned recommends that Plaintiff’s motion for injunctive relief may be denied on the basis that

Plaintiff has failed to meet his burden of demonstrating that the burden of potential harm favors him

or that the public interest favors granting him the relief he seeks.

IV. CONCLUSION

For the foregoing reasons, the undersigned recommends that Plaintiff’s motion for preliminary

injunction (Dkt. # 104) be DENIED. A proposed order accompanies this Report and

Recommendation. 

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure,

the parties shall have ten (10) days from service of this Report to file written objections. See also

Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes

of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on May 11, 2007, as noted in the

caption. 

DATED this 12th day of April, 2007.

A

Karen L. Strombom

United States Magistrate Judge

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