Ash-Shaheed v. FCI Berlin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Salahudin Ash-Shaheed
v. 	Case No. 21-cv-227-LM
FCI Berlin
REPORT AND RECOMMENDATION
Plaintiff Salahudin Ash-Shaheed, proceeding pro se, is an
inmate at the Federal Correction Institution in Berlin, N.H.
(“FCI Berlin”). 	Before the court for preliminary review is
plaintiff’s complaint (Doc. No. 1), in which he asserts that FCI
Berlin and a prison employee violated his constitutional rights.
See 28 U.S.C. § 1915A(a) and LR 4.3(d)(1). 	Also before the
court is plaintiff’s motion for a temporary restraining order
(Doc. No. 3) which is addressed in this Report and
Recommendation.
Preliminary Review
The court conducts a preliminary review of prisoner
complaints filed in forma pauperis. 	See LR 4.3(d)(1); see also
28 U.S.C. §§ 1915(e)(2), 1915A. 	The court construes pro se
complaints liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). 	Claims may be dismissed, sua sponte, if,
among other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
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claim upon which relief may be granted. 	See 28 U.S.C. §§
1915(e)(2), 1915A(b)(1); LR 4.3(d)(1)(A). 	In considering
whether the complaint states a claim, the court determines
whether, stripped of legal conclusions, and with all reasonable
inferences construed in plaintiff's favor, the complaint
contains “sufficient factual matter, accepted as true, to ’state
a claim to relief’” upon which relief can be granted. 	Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Background and Claims
Construing his filings liberally, the plaintiff asserts a
claim that an FCI Berlin employee named Napier violated his
constitutional rights by opening certain mail sent from this
court without plaintiff being present. 	Mot. for Temp.
Restraining Order (Doc. No. 3) at ¶ 2.
Interference with legal mail implicates a prison inmate's
rights to access to the courts and free speech as guaranteed by
the First and Fourteenth Amendments to the U.S. Constitution.
Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). 	To state a
viable constitutional claim based on interference with legal
mail, a plaintiff must allege that the defendant “took or was
responsible for actions that ‘hindered [a plaintiff's] efforts
to pursue a legal claim.’” 	Id. (quoting Monsky v. Moraghan, 127
F.3d 243, 247 (2d Cir. 1997)). 	“In balancing the competing
interests implicated in restrictions on prison mail, courts have
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consistently afforded greater protection to legal mail than to
non-legal mail, as well as greater protection to outgoing mail
than to incoming mail.” 	Id. 	With respect to interference with
incoming mail, as plaintiff alleges here, this court has
recognized:
Not all mail that a prisoner receives from a legal
source will implicate constitutionally protected legal
mail rights. Indeed, even mail from a legal source may
have little or nothing to do with protecting a
prisoner's access to the courts and other governmental
entities to redress grievances or with protecting an
inmate's relationship with an attorney.
El v. Hazlewood, No. 19-CV-647-JL, 2020 U.S. Dist. LEXIS 103435,
at *10, 2020 WL 3086289, at *4 (D.N.H. May 7, 2020), report and
recommendation adopted sub nom. Re El v. FCI Berlin, Warden, No.
19-CV-647-JL, 2020 U.S. Dist. LEXIS 101518, 2020 WL 3086273
(D.N.H. June 9, 2020) (quoting Sallier v. Brooks, 343 F.3d 868,
874 (6th Cir. 2003)); see also Pinson v. U.S. Dep't of Justice,
No. CV 12-1872 (RC), 2015 WL 13673660, at *2 (D.D.C. July 28,
2015) (finding that “contents of mail from a court need not be
accorded the same protections given to the contents of mail from
a prisoner’s attorney”) (citing McCain v. Reno, 98 F. Supp. 2d
5, 7 (D.D.C. 2000)). 	“The relationship of a court with a
prisoner does not raise the same concerns about privilege and
confidentiality as does the relationship between a prisoner and
his or her lawyer.” 	Id. (quoting McCain, 98 F. Supp. 2d at 7);
see also Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996)
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(“[M]ail from the courts, as contrasted to mail from a
prisoner’s lawyer, is not legal mail.”); Anctil v. Fitzpatrick,
No. 1:16-CV-00107-JAW, 2018 U.S. Dist. LEXIS 210121, at *35,
2018 WL 6579153, at *13 (D. Me. Dec. 13, 2018) (inmate's receipt
of “mail from the courts that was previously opened, or was read
to him by a member of staff, does not establish a constitutional
violation”), R&R adopted, No. 1:16-CV-00107-JAW, 2019 U.S. Dist.
LEXIS 20558, at *1-*2, 2019 WL 501467, at *1 (D. Me. Feb. 8,
2019).
Finally, plaintiff has not demonstrated that the delay in
processing his incoming mail from the court caused him any
actual injury in violation of his constitutional rights. 	cf.
Lewis v. Casey, 518 U.S. 343, 351 (1996). 1 	Accordingly, the
district judge should dismiss plaintiff’s complaint for failure
to state a claim upon which relief can be granted.
Temporary Restraining Order
Having recommended the dismissal of plaintiff's mail-
interference claim, the court turns to plaintiff's motion for a
temporary restraining order.
A temporary restraining order under Federal Rule of Civil
Procedure 65 is appropriate only when conditions exist which
1 Although plaintiff asserts that his ability to serve
defendants with a complaint and summons in other cases in this
court in compliance with Fed. R. Civ. P. 4(m) was “eviscerated,”
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pose a threat of an “immediate and irreparable injury, loss, or
damage” to the applicant if the conduct of the opposing party is
not restrained until a hearing can be held on an application for
preliminary injunction. 	See Fed. R. Civ. P. 65(b). 	The
requirements of Rule 65(b) are “stringent” and “reflect the fact
that our entire jurisprudence runs counter to the notion of
court action taken before reasonable notice and an opportunity
to be heard has been granted both sides of a dispute.” 	Granny
Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers
Local No. 70 of Alameda Cty., 415 U.S. 423, 439 (1974).
Because Ash-Shaheed has failed to state a claim upon which
relief can be granted, for the reasons described in the previous
section, he has, necessarily, failed to carry his burden of
showing that is threatened with “immediate and irreparable
injury.” 2 	Accordingly, his request for a temporary restraining
order should be denied.
doc. no. 1-2, at 2, both of plaintiff’s civil cases in this
court were dismissed before service would have taken place. 	See
Ash-Shaheed v. Bozzelli, No. 20-cv-359-JD (D.N.H. Aug. 12,
2020); Ash-Shaheed v. Vaintrub, No. 19-cv-1037-JL (D.N.H. July
20, 2020) appeal docketed, No. 20-1882 (1st Cir. Sept. 14,
2020).
2 Independent of his failure to state a claim for relief,
plaintiff also failed to indicate that he made any effort to
give notice to the defendant or why such notice should not be
required. 	This failure, standing alone, is a sufficient basis
to deny relief. 	See Fed. R. Civ. P. 65(b)(1)(B).
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Conclusion
For the foregoing reasons, the court recommends that the
district judge:
• dismiss plaintiff’s complaint (Doc. No. 1) for failure to
state a claim; and
• deny plaintiff’s motion for a temporary restraining order
(Doc. No. 3).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court's order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
___________________
Andrea K. Johnstone
United States Magistrate Judge
cc: 	Salahudin Ash-Shaheed, pro se
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