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UNITED STATES DISTRICT COURT

DISTRICT OF RHODE ISLAN D

GORDON C . REID

v. MISC. No. 06-44S

WARREN F. DOWALIBY,

Superintendent, Strafford County

Department of Corrections, et als.

REPORT AND RECOMMENDATION

Lincoln D. Almond, United States Magistrate Judge

Plaintiff, Gordon C. Reid, is a federal pretrial detainee placed at the Strafford County

Department of Corrections (the "SCDOC") in Dover, New Hampshire. On May 12, 2006, Plaintiff

filed a Complaint against several employees of the SCDOC and the U.S. Marshal for the District of

New Hampshire pursuant to 42 U.S.C. § 1983 challenging his conditions of confinement and

claiming denial of access to law materials . He also filed a Motion to Proceed In Forma Pauperis

("IFP") and a Motion for Temporary Restraining Order ("TRO"). His IFP Motion was granted by

the District of New Hampshire and then this matter was transferred to the District of Rhode Island

because of the recusal of all of the New Hampshire Judges .' The case was assigned to District Judge

William Smith and, on May 25, 2006, he referred Plaintiff s Motion for TRO (Document No . 10)

to this Court for preliminary review, findings and recommended disposition . 28 U.S.C. §

636(b)(1)(B); LR Cv 72(a).

' It appears from the docket that the New Hampshirejudges recused because of the presence of their District's

U.S. Marshal as a named defendant.

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Background

Plaintiff has requested an expedited hearing on his Motion for TRO because his crimina l

prosecution is scheduled for trial on or about July 18, 2006.2 Plaintiff was indicted of one count of

Hobbs Act robbery on April 13, 2005 and has been detained on that charge since on or about April

22,2005. See United States v. Reid, CR 05-57JD (D.N.H.). Plaintiff is ro se in this case and pro

se with stand-by counsel in the criminal case.

On June 2, 2006, this Court ordered that Plaintiff's Complaint and Motion for TRO be served

on Defendants and a written response to Plaintiff's Motion for TRO be filed. On June 14, 2006,

Defendant Monier filed a response to Plaintiff s Motion for TRO and also a Motion to Dismiss this

action pursuant to Fed . R. Civ. P. 12(b)(1) and 12 (b)(6) (Document No. 14)? For the reasons that

follow, I recommend that Plaintiff's Motion for TRO be DENIED . After reviewing Plaintiffs

Verified Complaint, the parties' memoranda of law and the docket in Plaintiff's pending New

Hampshire criminal case, I conclude that an evidentiary hearing is not necessary . See Camnbell

Soup Co. v. Giles, 47 F.3d 467, 470 (1s` Cir. 1995) (An evidentiary hearing is not an indispensable

requirement when a court rules on a request for injunctive relief under Fed . R. Civ. P. 65).

Discussion

As the party moving for preliminary injunctive relief, Plaintiff bears the burden to

demonstrate (I) the potential for immediate, irreparable injury ; (2) the likelihood of success on the

merits of the case; (3) the relevant balance of hardships if the injunction does not issue; and (4) the

' Plaintiff s first criminal trial ended on February 22, 2006 as a mistrial .

' Since Defendant Monier's "cross" motion to dismiss has not been referred to this Court and is not yet ripe

for decision, this Court will not address the request for dismissal .

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effect on the public interest of a grant or denial of the motion . See Narragansett Indian Tribe v.

Guilbert, 934 F.2d 4, 5 (1 ' Cir. 1991). A failure to demonstrate one of the requirements necessitates

a denial of the motion for preliminary injunctive relief.

Here, Plaintiff has failed to demonstrate a likelihood of success on the merits, and his Motion

for TRO should be denied on that basis. In his Verified Complaint, Plaintiff generally challenges

his conditions of confinement as a pretrial detainee and contends that such conditions constitute cruel

and unusual punishment. He also specifically claims that certain disciplinary restrictions placed

upon him at the SCDOC violated his right to access to the Court . Plaintiff's Motion for TRO

focuses on the access claim, and he requests that the Court issue an order directing Defendants to

provide him with access to a telephone, the "attorney phone," and the law computer, and to return

his law books, legal files, writing implements, stationery and legal mail . Plaintiff also seeks an order

prohibiting Defendants in the future from seizing his legal files, writing implements or stationery ;

withholding, altering and/or inspecting his legal mail, papers or files ; and interfering or obstructing

his access to the Court.

Although a criminal defendant has a Sixth Amendment right to represent himself, that right

does not require unlimited access to a law library or law materials. See Kane v. Garcia Esnitia, 126

S . Ct. 407, 408 (2005) (citing cases). When stand-by counsel is available to assist a criminal

defendant, his right to represent himself and his right to have access to a law library or legal

materials can be subject to reasonable restrictions. See, e.g., United States v. Sarno, 73 F.3d 1470,

1491 (9h Cir. 1995) (right of access must be balanced against the legitimate security needs or

resource constraints of the prison); Caton v. Maze, 995 F.2d 881, 881 (8h Cir. 1993); Barham v.

Powell, 895 F.2d 19, 23 (1s` Cir. 1990); Milton v. Morris, 767 F.2d 1443, 1446 (9" Cir. 1985) .

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Plaintiff has failed to show a likelihood of success on the merits for two primary reasons .

First, it is apparent from a review of the docket in Plaintiff's pending criminal case that he is trying

to relitigate matters in this case which have been raised and decided in his criminal case . For

instance, on April 27, 2006, Plaintiff filed a Motion for Access to the Court (Document No . 278),

a Motion for Stay of Proceedings (DocumentNo . 277) and a Motion for Protective Order (Document

No. 279) in United States v. Reid, CR 05-57 JD (D.N.H.). These Motions essentially raise the same

issues presented in Plaintiff s Motion for TRO in this case .

On May 15, 2006, District Judge Joseph A. DiClerico, Jr. denied the Motion for Stay noting

that Plaintiff had been given "ample time" to prepare for his second criminal trial (a retrial), he was

"very well prepared in the first trial," he had six months to prepare between trials and there were no

significant new issues to be addressed in the second trial . (Document No . 285). Judge DiClerico

also pointed out that Plaintiff has access to court appointed stand-by counsel "for assistance ." Id.

Further, on May 31, 2006, Judge DiClerico found that Plaintiff had regained access to his law

computer, legal files, writing implements and "attorney phone" privileges, and thus he denied the

Motions for a Protective Order and Access to the Court as moot. (Document No . 304).

Here, Plaintiff is seeking to relitigate issues that he has already pursued in his criminal case

and that have been finally adjudicated by Judge DiClerico . It is well established that the doctrine

of collateral estoppel or issue preclusion "bars relitigation of any factual or legal issue that was

actually decided in previous litigation." Grella v. Salem Five Cent Say . Bank, 42 F.3d 26, 30 (1"

Cir. 1994) (citation omitted) . See also Johnson v . Mahoney, 424 F.3d 83 (V Cir. 2005) (applying

collateral estoppel in a suit arising under 42 U .S .C . § 1983). If Plaintiff is unhappy with Judge

DiClerico's rulings, his recourse is to challenge Judge DiClerico's rulings on direct appeal if hi s

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second trial results in a conviction . Plaintiff s recourse is not to commence a separate civil action

and to seek a second bite at the apple . As the presiding trial judge in the criminal case, Judge

DiClerico is in the best position to address the issues raised in Plaintiff s Motion for TRO and to

ensure Plaintiff s right to a fair trial . See Metro Med. Supply, Inc . v. Shalala, 959 F. Supp. 799, 804

(M.D. Tenn. 1996) ("defendants cannot, by bringing ancillary equitable proceedings, circumvent

federal criminal procedure"); cf. Younger v. Harris, 401 U.S . 37 (1971) (plaintiff in federal civil

rights action not entitled to equitable relief against state court prosecution) .

Second, the lack of merit to Plaintiff s access claim is evidenced by the claim itself. Plaintiff

alleges that his writing implements, stamps and envelopes were seized, and he seeks an injunction,

in part, ordering their return. However, Plaintiff was able to prepare and file a seventeen-page

handwritten Complaint, a four-page handwritten Motion for TRO and a Motion to Proceed IFP in

this case. These documents were received and filed by the Court on May 12, 2006 and dated by

Plaintiff on May 5, 2006 . Further, in his criminal case, Plaintiff s actions do not suggest any denial

of access. Since the commencement of his criminal case in April2005, Plaintiff has filed over eighty

Motions in that case, as well as other additional notices and miscellaneous filings. Since this civil

suit was commenced, he has filed nearly twenty Motions. Finally, Judge DiClerico, who has

observed Plaintiff first-hand and has presided over his criminal case since May 13, 2005, found that

Plaintiff had not been denied access to the Court, was very well prepared in his first trial and had

ample time to prepare for the second trial . U.S. v. Reid, CR 05-57JD (D.N.H.) (Document Nos. 285

and 304).

For the reasons discussed above, this Court finds that Plaintiff has not met his burden under

Fed. R. Civ. P. 65 to establish a likelihood of success on the merits to warrant preliminary injunctiv e

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relief. Accordingly, I recommend that Plaintiff s Motion for TRO (Document No. 10) be DENIED.

Any objection to this Report and Recommendation must be specific and must be filed with the Clerk

of the Court within ten (10) days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72. Failure to file

specific objections in a timely manner constitutes waiver of the right to review by the District Court

and the right to appeal the District Court's decision . See United States v. Valencia-Copete, 792 F.2d

4, 6 (1` Cir. 1986); Park Motor Marthic v . Ford Motor Co 616 F.2d 603, 605 (1 ' Cir. 1980).

LING&N D. ALMOND

United States Magistrate Judge

June 23, 2006

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