Roy v. Stanley , 110 F. App'x 139 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2431
STEVEN J. ROY,
Plaintiff, Appellant,
v.
PHIL STANLEY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Steven J. Roy on brief pro se.
Peter W. Heed, Attorney General, and Andrew B. Livernois,
Assistant Attorney General on brief for appellees.
October 1, 2004
Per Curiam. Plaintiff Steven J. Roy appeals pro se from the
district court's denial of his motion for a preliminary injunction
on the ground that he had failed to demonstrate a likelihood of
succeeding on the merits of his claims under 42 U.S.C. § 1983. On
appeal, Roy argues that the district court erred in denying
preliminary injunctive relief as to his claims that the warden and
other staff of the New Hampshire State Prison for Men ("NHSP"),
where he is incarcerated, violated his First Amendment, Due Process
and Equal Protection rights by cutting off his telephone
communication with the software company which he ran before
becoming incarcerated ("the Company").1
"The criteria for the grant of a preliminary injunction
are the familiar four: likelihood of success, risk of irreparable
harm, the balance of the equities and the public interest."
Langlois v. Abington Housing Authority, 207 F.3d 43, 47 (1st Cir.
2000). "Likelihood of success is the touchstone of the preliminary
injunction inquiry." Philip Morris, Inc. v. Harshbarger, 159 F.3d
670, 674 (1st Cir. 1998). The standard of review "depends upon the
issue under consideration. Generally speaking, pure issues of law
(e.g., the construction of a statute) are reviewed de novo,
1
In his brief, Roy states that he is "withdraw[ing]" his
appeal from the denial of preliminary injunctive relief as to his
claim that he has been "blacklisted" from computer jobs in
retaliation for his previous litigation against defendants.
2
findings of fact for clear error, and 'judgment calls' with
considerable deference depending upon the issue." Id.We agree with the district court that Roy has failed to
show likelihood of success on the merits of any of the claims
pursued in this appeal. In order to succeed on his § 1983 claims,
Roy must show violation of a right secured by federal law. Fournier
v. Reardon, 160 F.3d 754, 756 (1998). Roy appeals from the denial
of preliminary injunctive relief as to his claims that the prison
restriction on his telephone access violated his rights under the
First Amendment, Due Process Clause, and the Equal Protection
Clause.
I. First Amendment
Roy argues that the district court erred in denying
preliminary injunctive relief on his claim that by cutting off
telephone access to the Company and "others interested in receiving
his intellectual property," defendants violated his First Amendment
rights to free speech and free association. We agree with the
district court's conclusion that "Roy's stated desire to engage in
telephone communications for the purpose of generating revenue and
goodwill for his outside business, and to independently license his
intellectual property are not constitutionally-protected
interests." Magistrate Judge's Report and Recommendation, 9/3/03,
p. 34.
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"Prisoners have no per se constitutional right to use a
telephone." United States v. Footman, 215 F.3d 145, 155 (1st Cir.
2000); see also Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir.
2002) (characterizing First Amendment right as the right to
communicate with persons outside prison walls and use of a
telephone as merely one "means of exercising that right"); Pope v.
Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996) (characterizing
First Amendment right at issue in challenge to telephone
restrictions as the "right to communicate with family and
friends"); Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989)
(stating that "[a] prisoner has no right to unlimited telephone
use"). Moreover, "a prisoner has no recognized right to conduct a
business while incarcerated." French v. Butterworth, 614 F.2d 23,
24 (1st Cir. 1980). Having failed to identify a First Amendment
right on which the challenged restriction impinges, Roy has not
demonstrated a likelihood that he would succeed on the merits of
that claim.
II. Due Process
Roy appeals from the denial of a preliminary injunction
on his second claim in his amended complaint, that the telephone
restrictions deprived him of a liberty interest in "continuing to
preserve his beneficial interest in [the Company]," without due
process. Amended Complaint, ¶ 67. "[A] prisoner retains [no]
unrestricted right under the fourteenth amendment to operate a
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business." French, 614 F.2d at 25. The Supreme Court has held that
"States may under certain circumstances create liberty interests
which are protected by the Due Process Clause. But these interests
will be generally limited to freedom from restraint which . . .
imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life." Sandin v. Conner, 515
U.S. 472, 484 (1995).
Roy has not demonstrated a likelihood of establishing
that such a liberty interest has been created in this case. Roy
has not shown that restrictions barring prisoners from running a
business from prison are atypical, and "an inmate's subjective
expectations are not dispositive of the liberty-interest analysis."
Dominique v. Weld, 73 F.3d 1156, 1160 (1st Cir. 1996). Roy suggests
that the fact that he had communicated with the Company by
telephone for eight years prior to the imposed restriction
establishes a liberty interest. However, a change to more
restrictive (but not "atypical") conditions of confinement does not
alone create a liberty interest. See id. (holding that prisoner's
removal from work release program and transfer to medium security
facility did not meet Sandin standard).2
2
Roy also argues that an alleged settlement agreement entered
into with defendants in 1995, following related litigation, created
a liberty interest, but he fails to show a likelihood of succeeding
on that claim. The district court found that, in the 1995
settlement, "NHSP allowed Roy to resume his telephone access to the
Company and his business friends, but did not exempt him from its
prohibition against inmates conducting business while incarcerated,
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The district court, in declining to dismiss the second
claim of the amended complaint for failure to state a claim,
suggested that a prohibition on running a business which did not
recognize "exceptions for occasional communications necessary to
protect property legitimately acquired prior to incarceration,"
might be "atypical" under Sandin. However, we need not decide that
issue because Roy does not challenge the telephone restrictions on
that basis. Instead, he claims that preventing him from continuing
on an ongoing basis to dictate software to the Company over the
telephone deprives him of a liberty interest without due process.
He has failed to show a likelihood of succeeding on the merits of
that claim.
III. Equal Protection Claim
Roy appeals from the district court's denial of
preliminary injunctive relief on his claim that his equal
protection rights were violated because the prison prohibits him
from selling his intellectual property while allowing other inmates
to sell their handmade products through the prison's "hobbycraft"
program. Roy has not claimed to be part of a "suspect class." And,
as discussed above, prisoners do not have a fundamental right
either to telephone access or to conduct a business from prison.
nor did NHSP agree to permit Roy to receive compensation for his
communications." 9/3/03 Report and Recommendation, pp. 5 - 6. Roy
has not shown that that finding was clearly erroneous.
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Since there is no suspect classification here
involved, nor any deprivation of fundamental
rights, the ordinary equal protection test is
extremely deferential. The standard formula
is that a non-suspect classification is
unconstitutional only if no legitimate basis
can be imagined to support it. And "support"
means only that a legislature . . . could
provide a rational basis for the choice.
Beauchamp v. Murphy, 37 F.3d 700, 707 (1st Cir. 1994).
We agree with the district court that "allow[ing] inmates
to receive compensation for their works sold through an approved
and prison-supervised program is readily distinguishable from Roy's
desire to engage in unsupervised outside business activities."
9/3/03 Report and Recommendation, p. 20, n.5. Defendants'
testimony at the first preliminary injunction hearing articulated
a rationale for the rule that easily satisfies the "rational basis"
test. See 1/14/03 Report and Recommendation, p. 8. Roy has failed
to demonstrate a likelihood that he could prevail on the merits of
his equal protection claim.
The district court's denial of preliminary injunctive
relief is affirmed.
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