1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RONALD KEAL et al. ,

Plaintiffs,

v.

THE STATE OF WASHINGTON, et al.,

Defendants.

Case No. C05-5737RJB

REPORT AND

RECOMMENDATION

NOTED FOR:

OCTOBER 13TH, 2006

This 42 U.S.C. § 1983 Civil Rights action has been referred to the undersigned Magistrate Judge

pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR

3, and MJR 4. Before the court is Plaintiff’s “Emergency Motion for a Temporary Restraining Order.” 

(Dkt. # 158). Plaintiff asks for an order enjoining defendants from retaliation. Mr. Keal describes his

issues as follows:

1. Denial of legal calls. (Prison officials will no longer let him make “legal calls” to

attorneys unless he can show there is a client attorney relationship between him and the

attorney he is trying to call).

2. Legal Access.

3. Document evidence.

4. Witness statements pertaining to this case.

5. Denial of adequate medical treatment.

Case 3:05-cv-05737-RJB-JKA Document 169 Filed 09/15/06 Page 1 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 2

6. Denial of medical records.

7. Opening of legal mail

(Dkt. # 158, page 1). He asks the motion be granted without notice to the defendants, however, the

motion was noted for three weeks from the date of filing and defendants have responded. (Dkt # 161). 

While the motion is signed by both plaintiffs it appears to the court that the signature blocks were

executed by the same person as the printing is similar. Plaintiffs are warned that where both parties must

sign a document and one party is executing the signature, a notation to the court such as “signed with the

approval” is needed. (Dkt. # 158). 

Defendants represented by the Washington State Attorney General’s Office have responded to

plaintiff’s motion, addressed Mr. Keal’s issues individually, and oppose the motion. (Dkt. # 161). 

Having reviewed the exhibits, argument, and the record, the court recommends the motion be

DENIED. 

STANDARD OF REVIEW

The basic function of injunctive relief is to preserve the status quo ante litem pending a

determination of the action on the merits. Los Angeles Memorial Coliseum Com'n v. National

Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). A party seeking injunctive relief must fulfill

one of two standards, the "traditional" or the "alternative." Cassim v. Bowen, 824 F.2d 791, 795

(9th Cir. 1987). 

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. . . . 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. (citations omitted).

DISCUSSION

1. Legal calls.

The record placed before the court shows Mr. Keal has tried to make numerous legal phone

calls to attorneys who do not represent him. (Dkt # 158 Exhibit 2); (Dkt. # 161, Exhibits 1,

Case 3:05-cv-05737-RJB-JKA Document 169 Filed 09/15/06 Page 2 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 3

Attachments C and E). Mr. Keal is in violation of the Department of Corrections legal call policy

which allows for calls to a person’s attorney.

Legal calls are not made on the normal monitored phone lines. The inmates counselor must

make arrangements for the call. Here, Mr. Keal’s counselor contacted the attorneys and learned

there is no client attorney relationship with Mr. Keal and the attorneys refused to accept the collect

calls. (Dkt. # 161, Page 6, Exhibit 1, Attachment E). In one instance the person Mr. Keal was

trying to call was no longer an active bar member. (Dkt. # 158, Exhibit 2).

Mr. Keal was placed on restrictions as a result of his abuse of the system. He may still make

a legal call but to do so he must be able to verify the person he is trying to call is his attorney. 

Mr. Keal fails to show any injury. His relationship and ability to speak with an attorney who

represents him has not been impaired.

2. Legal Access.

Mr. Keal complains because prison officials have confiscated a video tape from him. The

tape is allegedly from the visiting room on the day Mr. Keal and Mrs. Keal lost their visiting

privileges. (Dkt. # 158, Exhibit 3). 

Prison officials indicate inmates are not allowed to have video tapes and the tape was allowed

in to another prison in error. (Dkt # 161, Exhibit 1). Pursuant to policy Inmates are only allowed to

view video tape of court proceedings. While the video tape in question may be evidence, plaintiff

has not shown injury. Nothing appears to prevent him from having the tape sent to court. There is

no motion before the court to allow him to view the tape. Again, plaintiff has not shown injury.

3. Copies.

Mr. Keal complains he cannot challenge loss of good time in a Personal Restraint Petition or

Writ “by using documents to base my pleadings upon and use as exhibits.” (Dkt. # 158, Exhibit 3).

The court interprets the pleadings as a request for free copies of records in the Department of

Corrections possession.

Plaintiffs are proceeding in forma pauperis, however, this status does not waive the costs

associated with litigation other than the filing fee. Plaintiffs must pay for all other costs of litigation,

Case 3:05-cv-05737-RJB-JKA Document 169 Filed 09/15/06 Page 3 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 4

including the cost of obtaining original copies of documents such as medical records, or information

in his files. Thereafter, copies are provided (debited against the inmates account) to an in forma

pauperis inmate. Plaintiff has failed to show any actual injury. Further, he has failed to plead, with

any specificity, what documents he is requesting or why the documents are necessary to this action. 

The court notes plaintiff is using exhibits in his possession to support this motion, thus, prison

officials will copy pleadings which have documents attached as exhibits. (Dkt. # 158). At the

current time plaintiff is not entitled to relief on this issue. 

4. Inmate to inmate correspondence, (witness statements).

Plaintiff alleges he sent a request for inmate to inmate correspondence to his counselor but

did not receive a response. (Dkt. # 158, Exhibit 3). Defendants indicate they did not receive a

request for inmate to inmate correspondence. (Dkt. # 161). This appears to be the issue raised by

plaintiff as “denial of witness statements pertaining to this case.” (Dkt. # 158, page 1). Plaintiff

references exhibit 5 in his pleadings but does not articulate this issue with any degree of specificity. 

Plaintiff indicates he wishes to correspond with five inmates whom he identifies in a letter to

Richard Morgan. (Dkt. # 158, Exhibit 5). He does not indicate what information he believes the five

inmates may have, or why he cannot place this evidence before the court through another means,

such as his own affidavit. Again, plaintiff fails to show injury. Plaintiff should renew his request to

prison authorities using the proper channel, not a letter to the superintendent. This will provide

prison officials the opportunity to properly address this issue and clarify the record prior to any court

intervention. 

5. Medical Treatment.

Mr. Keal alleges he is being denied adequate medical treatment for his hip, his back, and a

chipped tooth. (Dkt. # 158 Exhibits 1, 6,).

The record shows Mr. Keal suffers from degenerative disk disease and is being treated for

that condition. (Dkt. # 158, Exhibit 6). The legal standard with regard to a claim of this nature is

fairly well established. An inmate's Eighth Amendment rights are violated if he or she is treated with

deliberate indifference to his or her serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 106

Case 3:05-cv-05737-RJB-JKA Document 169 Filed 09/15/06 Page 4 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 5

(1976); Jones v. Johnson, 791 F.2d 769, 771 (9th Cir. 1986). The indifference to medical needs

must be substantial; a constitutional violation is not established by negligence or "an inadvertent

failure to provide adequate medical care." Estelle, 429 U.S. at 105-106; see Anthony v. Dowdle,

853 F.2d 741, 743 (9th Cir. 1988). Similarly, a difference in opinion as to diagnosis or treatment

does not establish a constitutional violation. Shields v. Kunkle, 442 F.2d 409, 410 (9th Cir. 1971).

Plaintiff’s conclusory allegation that the treatment he is receiving is “inadequate” does not

fulfill the requirement for injunctive relief. Mr. Keal has not shown he will suffer irreparable injury if

the relief is denied. He has failed to meet his burden of proof with regards to this issue.

Mr. Keal also complains he chipped a tooth, (Dkt. # 158, Exhibit 1). He fails to show prison

officials refuse to see him or treat him for this alleged injury. Again, plaintiff has failed to show he is

entitled to injunctive relief.

6. Medical records.

Plaintiff does not articulate this claim with any degree of specificity. The record shows

plaintiff is able to obtain and present medical records to this court. (Dkt. # 158, Exhibit 6). The

court does not know what specific problem or issue the plaintiffs are asking the court to address. 

This portion of the motion does not warrant further consideration at this time given the vagueness of

the pleading.

7. Opening of legal mail.

In support of his request for injunctive relief on this issue plaintiff provides a number of

documents. (Dkt. # 158, Exhibit 7). The first is an envelope from “Merrick, Holfstedt & Lindsay,

P.S.”. The envelope is not marked as legal mail and plaintiff has not provided any information as to

the contents of the letter. The notation from the corrections officer delivering the letter indicates the

correspondence was opened on delivery. 

If plaintiff wishes to have correspondence treated as legal mail he needs to instruct his

counsel to clearly mark the envelop as “Legal Mail.” While the return address may have alerted a

person to the chance the mail was legal correspondence, the address is not dispositive of that fact

and there is not any invocation of the client attorney relationship.

Case 3:05-cv-05737-RJB-JKA Document 169 Filed 09/15/06 Page 5 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 6

Plaintiff’s next exhibit is a form allowing Mr. Keal to correspondence with his wife as they

are co-parties to this litigation. The response shows that correspondence between Mr. and Mrs. Keal

is subject to search and will not be treated as legal mail. (Dkt. # 158, Exhibit 7).

The legality of prison officials searching incoming or outgoing mail to determine if it contains

information that endangers the orderly operation of a facility is well settled. Thornburgh v. Abbott,

490 U. S. 401 (1989). By becoming co-plaintiffs the plaintiff’s do not in anyway lessen the

reasoning or justification allowing search of correspondence between Mr. and Mrs. Keal. Inmate to

spouse communication is simply not entitled to the same protection as correspondence to an attorney

or the court. Plaintiff fails to show irreparable harm or that the balance of potential harm favors the

moving party. 

Further, Mr. Keal may not seek injunctive relief on this issue until and unless he exhausts all

administrative remedies available to him prior to seeking injunctive relief. Jones v Carlson, 495 F.2d

209 (5th Cir. 1974). Although not controlling authority the analysis of this Fifth circuit case is

further supported by the passage of the Prison Litigation Reform Act which requires inmates exhaust

administrative remedies prior to filing suits regarding conditions of confinement. Plaintiff’s are not

entitled to relief on this issue. 

8. Potpourri.

The forgoing Report addresses all issues in petitioner’s motion for injunctive relief. Exhibits

attached to the motion (Dkt. # 158) make reference to other areas of dissatisfaction, (see Dkt. 158-

8), which are not issues raised in the motion. This is called to the District Judge’s attention to assure

the court that this writer is not overlooking those issues, but does not see them as relevant to the

case at bar. 

CONCLUSION

Plaintiffs have failed to show they are entitled to any injunctive relief in this action. Accordingly, the

motion should 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. 

Case 3:05-cv-05737-RJB-JKA Document 169 Filed 09/15/06 Page 6 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 REPORT AND RECOMMENDATION - 7

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 October 13th, 2006, as

noted in the caption.

DATED this 14th day of September, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge 

Case 3:05-cv-05737-RJB-JKA Document 169 Filed 09/15/06 Page 7 of 7