United States District Court, D. North Dakota
REPORT AND RECOMMENDATION
KAREN K. KLEIN, Magistrate Judge.
Plaintiff Nicholas Dodge Bruesch ("Bruesch") submitted three proposed orders directing the defendants to show cause why a preliminary injunction and temporary restraining order should not be issued. (Doc. #44, Doc. #58, Doc. #67). Despite the titles of the proposed orders, it is clear Bruesch seeks a preliminary injunction. See Id . Bruesch previously sought a preliminary injunction in this action, and the court denied his request. (Report and Recommendation, Doc. #36; Order adopting Report and Recommendation, Doc. #46). The court refers to the entire record in considering the instant motions.
Summary of Recommendation
Bruesch has not met his burden of demonstrating he is entitled to injunctive relief under Dataphase Sys., Inc. v. C.L. Sys., Inc. , 640 F.2d 109, 113 (8th Cir. 1981). It is RECOMMENDED that Bruesch's requests for a preliminary injunction (Doc. #44, Doc. #58. Doc. #62, Doc. #67) be DENIED.
Bruesch filed a complaint pursuant to 42 U.S.C. § 1983 alleging defendants have denied him access to the courts. (Complaint, Doc. #10). His complaint alleges (1) he was denied his legal materials when he first arrived at the James River Correctional Center ("JRCC"), and (2) that since Bruesch's arrival at JRCC his access to legal materials and the law library has been restricted. Id. at pp. 3-6. Bruesch contends he missed deadlines and could not file proper documents in another action that was before this court because he had restricted access to legal materials. Id. at p. 5.
On April 2, 2013, Bruesch was transferred from the North Dakota State Penitentiary ("NDSP") to JRCC, but his personal property and legal materials were not transported with him. Id. at p. 3. Defendants contend the legal materials were "inadvertently left at NDSP, " but ultimately the materials were delivered to Bruesch on April 23, 2013. (Aff. of Mee, Doc. #33, pp.1-2). Bruesch disagrees that his legal materials were "inadvertently' left at NDSP." Instead, he contends his materials were confiscated at NDSP several weeks before his transfer to JRCC, and leaving them behind was "a calculated action." (Doc. #35, pp. 3-4).
When Bruesch first arrived at JRCC he was placed within the Special Assistance Unit (SAU) which "provides services to inmates whose unique needs or mental health problems lead to disruptive or otherwise problematic behavior serious enough to endanger the safety and security of the inmate, prison population, and/or staff." (Aff. of Mee, Doc. #33, p. 2). Defendants assert "Bruesch displayed aggressive behavior" upon arriving at JRCC which "made visits to the law library a safety and security risk." Id . Although Bruesch disputes he was a security risk upon his arrival at JRCC, he notes his behavior improved within three days after his arrival. (Doc. #35, p.5).
In support of his pending requests for a preliminary injunction Bruesch provided the court with a JRCC Case Note authored by defendant Lyle Mee. (Aff. of Bruesch, Doc. #57). Bruesch contends the Case Note demonstrates he did not display aggressive behavior upon his arrival at the facility. Id . The Case Note is dated the day after Bruesch arrived at JRCC. (Case Note, Doc. #57-1). The case note states the following:
Bruesch was transferred from NDSP for what appeared to be aggressive behavior towards staff. He signed for hi[s] SAU/JRCC handbooks and received his contact information. He expressed a lot of interest in working with staff, getting a behavior plan put together and working his way through SAU. He is concerned with getting his mail. He stated he has not received it for quite some time because of his behavior. He had appealed some level III reports and want[s] to make sure he doesn[']t run out of time to appeal them further if need be. He voiced no other concerns at this time.
Bruesch states that on April 23, 2013, the day he received his legal materials, Attorney Douglas Bahr, who represented other state defendants in another action Bruesch had pending before this court, see Bruesch v. Flanagan, D.N.D. Case No. 1:12-cv-83,  contacted the SAU at JRCC, and restrictions were then placed on Bruesch's access to legal materials and the law library at JRCC. (Complaint, Doc. #10, at pp. 4-5). Bruesch contends he missed deadlines and could not file proper documents in his other federal action because he had restricted access to legal materials. Id. at p. 5.
Defendants assert they allowed the law librarian to visit Bruesch with no time limits and provided him with requested legal materials. (Aff. of Mee, Doc. #33, p. 2). Starting in June 2013 Bruesch was allowed access to the law library at designated times and for specific durations. Id . Bruesch admits he was allowed 1.5 hours of law library time per day, including use of the law library computer. (Doc. #12-1).
Bruesch contends in his recent motions that he is again being prohibited access to the law library. (Doc. #44, p. 2). He states that because he is denied access to the law library, law computer, and "necessary law books, " he lost his case in Bruesch v. Flanagan, D.N.D. Case No. 1:12-cv-83. Bruesch states he could not properly research the case and lost "due to lack of argument." (Doc. #59, p. 2). Bruesch also states he has been unable to ...