UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gary Dewayne Johnson

v. Civil No. 07-cv-161-PB

Angela Poulin, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Gary Johnson has filed a civil rights

action, pursuant to 42 U.S.C. § 1983, challenging a number of the

conditions of his confinement. He now brings two motions seeking

preliminary injunctive relief (document nos. 16, 17 & 38). 

Johnson particularly seeks to enjoin the alleged deprivation of

hygiene items and access to the library by defendants. A hearing

on the first motion for injunctive relief was held before me on

October 4, 2007. I directed the parties to file affidavits of

fact supporting their positions on the second motion for

injunctive relief so that I might, if possible, decide the second

motion in conjunction with the first, and without an additional

hearing. The parties have complied with that request (document

nos. 40 & 46) and have provided sufficient information to enable

me to resolve the pending motions. For the reasons explained

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herein, I recommend that the plaintiff’s requests for preliminary

injunctive relief be denied.

Background

1. Facts Concerning Johnson’s Use of the Law Library

Based on the evidence presented at the October 4, 2007,

evidentiary hearing and alleged in the parties’ affidavits

(document nos. 40 & 46), I find the facts as follows. On March

6, 2007, Johnson was in the law library conducting legal research

to support a challenge to his criminal conviction. As part of

that search, he entered the term “licked her anus” into

LexisNexis (“Lexis”), the New Hampshire State Prison Northern New

Hampshire Correctional Facility (“NCF”) law library’s

computerized legal research system. At that time, an inmate

employed in the law library warned Johnson that his Lexis

research was subject to being monitored by library staff, and

that he should not conduct his current search as it contained

inappropriate terminology. NCF library supervisor Angela Poulin

(“Poulin”) testified that monitoring of inmate research by

library staff is done to prevent and/or identify improper usage

of Lexis, as the Lexis search terms entered can be seen by other 

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inmates and can, therefore, be used by inmates to communicate

with one another.

While Johnson was logged into the Lexis system on March 6,

2007, an unidentified inmate in the law library was conducting

searches under the name of inmate Darren Starr, who was not in

the library at this time. These “Starr searches” were very

sexually explicit and did not appear to have been appropriate to

any legitimate research that was occurring. Although Poulin

cannot definitively identify who conducted the Starr searches,

and readily admitted at the hearing that it could have been any

one of a number of inmates, Poulin believed that it was Johnson

who conducted those searches. 

Several days later, Johnson returned to the law library. At

that time, Johnson logged into the Lexis system and searched for

the term “masturbated a bull” in order to find a specific New

Hampshire case that contained that phrase, and that was relevant

to the challenge to his criminal case. After that incident,

Poulin spoke to Johnson’s unit manager, Robert Thyng, and advised

him of Johnson’s searches and her concerns regarding the Starr

searches. In response, Thyng recommended that Poulin charge

Johnson with disciplinary infractions for the two searches in his

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own name, which she did. Johnson went to a disciplinary hearing,

was found guilty, and was given a number of sanctions by the

hearing officer. 

In addition to the disciplinary sanctions, Thyng banned

Johnson from the NCF recreational and law libraries for a period

of thirty days. Because Johnson had legal matters pending, Thyng

advised Johnson that he would be allowed to request specific

cases or documents from the library by submitting an inmate

request slip. Feeling that this was insufficient to meet his

research needs, Johnson requested that a person trained in the

law be appointed to conduct research on Johnson’s behalf. Thyng

denied the request. Poulin, however, testified that, in the

event Johnson is again banned from the library, he can make a

general research request in addition to requests for specific

documents, and that research would be conducted on his behalf. 

It appears that this information was not actually communicated to

Johnson prior to Poulin’s testimony at the October 4 hearing.

Johnson’s right to use the library was reinstated on or

about May 20, 2007. On May 23, 2007, Johnson went to the library

to have Poulin copy documents for him. Although she has a

twenty-four hour window in which to complete a copy request, and

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1Although Johnson was provided with law library times in

August and September, he was not able to utilize all of the time

because he had eye surgery.

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Johnson’s request was lengthy, Poulin agreed to copy the

documents right away. Johnson stood outside of Poulin’s office

waiting for his copies while she worked. Poulin at first

suggested, and then requested, that Johnson have a seat while she

completed the work. Poulin testified that instead of complying

with that request, Johnson stood at her office door in an

antagonistic and intimidating manner. As she felt threatened by

Johnson, Poulin asked a correctional officer to remove Johnson

from the library. Johnson was subjected to disciplinary action

for the incident. Thyng again banned Johnson from the NCF

libraries, this time for a period of ninety days, and threatened

to ban him indefinitely for any further infraction. Johnson’s

right to access the library was reinstated in August 2007, and he

has not since been banned from the library.1

Johnson claims that in August 2007, a new policy for making

law library appointments was instituted which was designed

specifically to deny him access to the law library. The

evidence, however, demonstrated that the policy was posted in

August 2007, at various locations around the prison and applied

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immediately to all inmates. The new policy continued the

practice of requiring inmates to fill out inmate request slips to

request library time, which the librarian responds to by granting

inmates specific appointments. The August 2007 policy adds an

additional step, however, that requires the inmate to sign the

inmate request slip after the librarian responds to acknowledge

the appointment. Then, the pink “staff” copy of the inmate

request slip is returned to the librarian with the inmate’s

signature, which confirms the appointment. According to the

policy, the appointment is voided if the staff copy of the

request is not returned to the library signed by the inmate.

Poulin asserts, by affidavit, that the policy is intended to

prevent scheduling difficulties and misunderstandings in the

prison law library. The evidence showed that on October 17,

2007, and October 26, 2007, Johnson requested regular and

extended law library time for the month of November by submitting

request slips. Although Johnson followed the new procedure and

returned the staff slip for the extended hours request, he failed

to return the staff copy of his form for the regular library

hours appointment. As a result, his regular hours were cancelled

but his extended hours were not. Poulin sent Johnson a memo

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2I note that on November 7, 2007, Poulin charged Johnson

with a disciplinary infraction for failing to attend or cancel

his “scheduled” regular law library appointment on that date. I

find it curious that Johnson would be disciplined for failing to

come to an appointment that, per the policy, had not been

confirmed, and had, therefore, been voided. This incident alone,

however, is insufficient to demonstrate that the policy itself is

unreasonable or was created as a retaliatory measure to punish

Johnson for pursuing legal action against Poulin.

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advising him of two ways in which he could have his November

hours reinstated. Johnson did not seek to have that time

reinstated. No evidence, aside from Johnson’s bald assertion,

was presented to show that this policy was created by Poulin in

November and applied only to Johnson in retaliation for his

pending lawsuit against her.2

2. Facts Concerning Hygiene Items

The evidence at the hearing showed that during the summer of

2007, Johnson, at various times, was without one or more of the

toiletries he believed that he needed to maintain proper hygiene,

and that he was unable to afford to buy these items himself at

the canteen. Johnson testified that he made a number of requests

for free items from the prison, and that he was sporadically

supplied with some hygiene supplies and was deprived of other

necessary items for longer than was reasonable. The evidence at

the hearing demonstrated that he was not consistently provided

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with a complete set of toiletries during that time period, but

that he did receive small amounts of toiletries without charge in

response to several of his requests. 

Johnson also testified that, by the time of the hearing, his

financial situation had improved, and that he had all of the

hygiene items he needed and the ability to purchase more should

the need arise. Johnson did not present any evidence to indicate

that he was likely to be unable to purchase the items for himself

in the foreseeable future.

Discussion

1. Standard of Review

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

the underlying action. See Jean v. Mass. State Police, 492 F.3d

24, 26-27 (1st Cir. 2007). Such a situation arises when some

harm from the challenged conduct could not be adequately

redressed with traditional legal or equitable remedies following

a trial. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102

F.3d 12, 18 (1st Cir. 1996) (finding irreparable harm where legal

remedies are inadequate); see also Acierno v. New Castle County,

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40 F.3d 645, 653 (3d Cir. 1994) (explaining irreparable harm and

its effect on the contours of preliminary injunctive relief). 

Absent irreparable harm, there is no need for a preliminary

injunction. The need to prevent irreparable harm, however,

exists only to enable the court to render a meaningful

disposition on the underlying dispute. See CMM Cable Rep., Inc.

v. Ocean Coast Props., 48 F.3d 618, 620-21 (1st Cir. 1995)

(explaining the purpose of enjoining certain conduct as being to

“preserve the ‘status quo’ . . . to permit the trial court, upon

full adjudication of the case’s merits, more effectively to

remedy discerned wrongs.”); see also Stenberg v. Cheker Oil Co.,

573 F.2d 921, 925 (6th Cir. 1978) (“The purpose of a preliminary

injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on

the merits.”).

A preliminary injunction cannot issue unless the moving

party satisfies four factors which establish its need for such

relief. See Esso Std. Oil Co. v. Monroig-Zavas, 445 F.3d 13, 17-

18 (1st Cir. 2006) (discussing the requisite showing to obtain a

preliminary injunction); see also Ross-Simons, 102 F.3d at 18-19

(explaining the burden of proof for a preliminary injunction). 

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3Johnson initially asserted several more claims which,

however, were dismissed following the statutorily mandated

preliminary review of prisoner complaints. See 28 U.S.C. §

1915A.

10

Those factors are: “(1) the likelihood of success on the merits;

(2) the potential for irreparable harm [to the movant] if the

injunction is denied; (3) the balance of relevant impositions,

i.e., the hardship to the nonmovant if enjoined as contrasted

with the hardship to the movant if no injunction issues; and (4)

the effect (if any) of the court’s ruling on the public

interest.” Esso Std. Oil, 445 F.3d at 18. If the plaintiff is

not able to show a likelihood of success on the merits, the

remaining factors “become matters of idle curiosity,”

insufficient to carry the weight of this extraordinary relief on

their own. See id. (the “sine qua non of the four-part inquiry

is likelihood of success on the merits”). Yet, “the predicted 

harm and the likelihood of success on the merits must be

juxtaposed and weighed in tandem.” Ross-Simons, 102 F.3d at 19. 

Johnson is incarcerated at NCF, where he claims he has been

denied: (1) access the courts, (2) adequate hygiene items, (3)

adequate protection while in prison, (4) due process prior to

being banned from the library, (5) adequate mental health care, 

(6) and that he has been subject to defamation.3 His motions for

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preliminary injunction are based only on the claims regarding the

alleged deprivation of hygiene items, improper monitoring of

research, and inadequate access to the law libraries, legal

research, and the courts. He now seeks: (1) retroactive pay in

the amount of $400, (2) the provision of free necessary hygiene

items, (3) the reinstatement of a cell feed pass, (4) an order to

stop the monitoring of his legal research, (5) adequate access to

the law library or other means by which he can conduct necessary

legal research, and (6) the rescission of the August 2007 policy

for making law library appointments. Applying the standard as

set out above, I consider each of these bases for injunctive

relief.

2. Retroactive Pay and Cell Feed Pass

The claim underlying the request for retroactive pay was

dismissed on December 10, 2007, and, therefore, cannot support

the requested injunctive relief. Accordingly, it will not be

considered the claim further.

At the hearing, Johnson withdrew his request for

reinstatement of his cell feed pass. I will not, therefore,

consider this claim any further as a basis for the preliminary

injunction now sought.

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3. Denial of Hygiene Items

a. Likelihood of Success on the Merits

Prison officials have an obligation to provide Johnson with

humane conditions of confinement, including “the minimal

civilized measure of life’s necessities.” See Wilson v. Seiter,

501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S.

337, 347 (1981)). This Court has previously held that

“[s]anitary living conditions and personal hygiene are among the

necessities of life protected by the Eighth Amendment.” See

Kenyon v. Cheshire County Jail Adm’r, No. Civ. 92-515-M, 1994 WL

529925, *3 (D.N.H. 1994) (citations omitted). Such a

deprivation, however, must be “sufficiently grave” to violate the

Eighth Amendment and, therefore, be actionable under § 1983. See

Wilson, 501 U.S. at 298. Here, the evidence showed that Johnson

was subjected to a temporary and partial denial of hygiene items,

but that the prison was not unresponsive to his hygiene needs. 

Johnson did not meet his burden of proving that the deprivation

of hygiene items was serious enough to warrant a finding that the

prison’s failure to provide all of the requested toiletries

constituted cruel and unusual punishment. Accordingly, I find

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that Johnson failed to demonstrate that he is likely to succeed

on the merits of his Eighth Amendment claim.

b. Irreparable Harm

Further, even if Johnson had demonstrated that he was likely

to succeed on the merits of his claim for a deprivation of

hygiene items, he failed to demonstrate that he would suffer

irreparable harm absent an injunction. Johnson testified that he

presently has sufficient hygiene items to meet his needs, and he

is currently able to purchase sufficient hygiene items from the

prison canteen. I therefore recommend that the request for an

injunction ordering the prison to provide Johnson with hygiene

items be denied.

4. Denial of Access to the Courts

a. Denial of Access to Legal Research

I. Likelihood of Success on the Merits

The prison is required to provide Johnson with meaningful

access to legal research materials; they may do so by providing

him with direct access to the library or providing him with the

assistance of a person trained to conduct legal research. See

Bounds v. Smith, 430 U.S. 817, 828 (1977) ( The right of access

“requires prison authorities to assist inmates in the preparation

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and filing of meaningful legal papers by providing prisoners with

adequate law libraries or adequate assistance from persons

trained in the law.”); see also Lewis v. Casey, 518 U.S. 343,

350-51 (1996); Carter v. Fair, 786 F.2d 433, 435 (1st Cir. 1986). 

The evidence at the hearing showed that during the times he was

banned from the library, Johnson was not given the opportunity to

conduct general legal research, because he was only told that he

could obtain specific documents and cases. This evidence is

sufficient to show that, if any of his pending legal matters were

prejudiced by this deprivation, he is likely to succeed on the

merits of that claim.

ii. Irreparable Harm

The evidence at the hearing showed that Johnson currently

has access to the NCF law library, and there does not appear to

be any impending threat that he will again be banned from the

library, absent an infraction of rules on his part. Should a ban

on Johnson’s use of the library be imposed in the future,

however, the Court relies on Poulin’s testimony that generalized

legal research is available to inmates who are not permitted in

the library. This is sufficient to remove any lingering need for

an injunction by this Court against such a ban as the evidence

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4During the hearing, I orally denied Johnson’s request for

twenty hours a week of library time as being without a

constitutional basis.

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shows that any future bans on his access to the library will not

result in a denial of his right to access the courts. 

Accordingly, I recommend that Johnson’s request to be reinstated

to the law library, as well as his request not to be banned from

the library in the future, be denied as unnecessary to protect

him from irreparable harm.4

b. Monitoring of Legal Research

Johnson claims that Poulin, as well as an inmate employee of

the law library, have been monitoring his legal research. At the

hearing, Johnson asserted a general right not to have his legal

“work product” monitored. Johnson claims that this right is

particularly acute here, where Poulin is a defendant in Johnson’s

pending legal action. Absent a showing, however, that he was

actually prejudiced in the prosecution of his civil action, I

cannot find that such a right exists. Lewis, 518 U.S. at 351. 

Johnson has made no such showing; he did not demonstrate that he

was inhibited in pursuing a particular legal action or otherwise

harmed simply because his work was subject to monitoring. To the

extent that Johnson alleged that he was limited from conducting a

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particular search, he did not contend that the limitation had

actually resulted in prejudice to a civil case. In fact, Poulin

testified at the hearing that inmates with legitimate research

projects can research terms that might otherwise be

objectionable, but that those inmates should first notify her of

their intention to search those terms if they are unable to use

alternative language to conduct searches. Johnson did not

attempt alternative means of searching for his information, and

did not discuss the reasons for his searches with Poulin or any

other prison official prior to entering the search terms into the

computerized research system. Further, Poulin testified that

while legal searches can be monitored, and are monitored to

prevent certain institutional problems, Poulin also testified

that she does not make a frequent practice of monitoring inmate

research, because her other responsibilities do not leave her

enough time to regularly conduct such monitoring.

I find, therefore, that Johnson failed to demonstrate that

he was likely to succeed on his underlying claim that his legal

research was being improperly monitored. To the extent Johnson’s

civil rights action challenges the validity of the regulation

permitting monitoring of legal work, I find that Johnson has

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failed to demonstrate that the policy was unreasonable or

otherwise deprived him of his right to access the courts. To the

contrary, I find that the evidence at the hearing showed that the

policy was reasonable, as it was directly related to a legitimate

interest of the prison in institutional security, and does not

unduly hamper legitimate legal research. Since Johnson is

unlikely to succeed on this claim, I recommend that Johnson’s

request for injunctive relief to prevent monitoring of Lexis

searches be denied.

Conclusion

For all the reasons stated herein, I recommend that both of

Johnson’s requests for preliminary injunctive relief (document

nos. 16, 17 & 38) be denied. Any objections to this report and

recommendation must be filed within ten (10) days of receipt of

this notice. Failure to file objections within the specified

time waives the right to appeal the district court’s order. See

Unauthorized Practice of Law Comm. v. Gordon, 979 F.2d 11, 13-14

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(1st Cir. 1992); United States v. Valencia-Copete, 792 F.2d 4, 6

(1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 15, 2008

cc: Gary Dewayne Johnson, pro se

Danielle Leah Pacik, Esq.

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