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Asemani v. Warden

United States District Court, D. Maryland

March 30, 2017

BILLY G. ASEMANI, #339-096 Plaintiff
v.
WARDEN, Defendant

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.

         Pending is self-represented Plaintiff Billy G. Asemani's "emergency petition" for injunctive relief. (ECF 1). Kathleen Green, former Warden at Eastern Correctional Institution ("ECI")[1] has filed a Motion to Dismiss, or in the Alternative, a Motion for Summary Judgment. (ECF No. 19). Also pending are Asemani's filing titled "Motion for Substitution of Parties Pursuant to FRCP No. 25, Notice of Withdrawal of Denial of Access to the Library Claim and Motion for Extension of Time to Respond to Defendant's Answer" (ECF No. 23) and a Motion to Substitute Party. (ECF No. 24).

         Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, which will be treated as a Motion for Summary Judgment, is ready for disposition and a hearing is unnecessary. See Local Rule 105.6 (D. Md. 2016). Asemani's Motion to Withdraw Denial of Access to the Library Claim (contained in ECF No. 23), will be treated as a Motion for Voluntary Dismissal under Fed.R.Civ. P. 41(a), and GRANTED. Asemani's Motion to Substitute Party (contained in ECF No. 23, 24) IS DENIED. Asemani's Motion for an Extension of Time to file a Response after Substitution of Party (contained in ECF No. 23) IS DENIED as moot. Defendant's dispositive Motion (ECF No. 19), treated as a Motion for Summary Judgment (ECF No. 19), IS GRANTED. Judgment will be entered in favor of Defendant.

         BACKGROUND

         Asemani is incarcerated at ECI in Westover, Maryland. Asemani alleges that he is permitted insufficient library time to work on his legal cases, has insufficient postage to send out his legal mail, and it takes too long to receive non-legal mail at ECI. (ECF No. 1). He claims that because his prisoner account balance has not been less than $4.00 for the past thirty days, he did not yet qualify as an indigent inmate, and there was no provision at ECI to provide him with postage for his outgoing legal mail. (ECF No. 1 at p. 1.).

         Asemani asserts that he requires one to two hours of library time per week to work on his post-conviction petition and to meet certain filing deadlines. He does not, however, specify the deadline dates, what he needs to file, or why library access is necessary. Id. at p. 3. Notably, he does not claim he actually missed any filing deadlines. Asemani claims that in the first.45 days after his transfer to ECI, he was allowed only one library visit and it was for one hour. Id. Additionally, he complains that ECI mailroom staff delivers non-legal mail only once every two or three weeks, which delays his receipt of correspondence from parties who assist him with his legal activities. Asemani admits those assisting him are not members of the legal community, and as such, their incoming mail is not considered legal mail. Id. at p. 2. Asemani does not explain who these parties are or how they assist him with legal matters. As relief, Asemani asks for "reasonable, workable, practical, and unhindered access to the courts." ECF No. 1 at p. 3.

         On April 4, 2016, Asemani filed Administrative Remedy Procedure ("ARP") request ECI-0650-16, complaining that because his prisoner account balance had not fallen below $4.00 in the past thirty days, he was ineligible for indigent inmate status which would excuse his inability to pay for legal mailings. He stated that it would be at least three weeks before he was eligible for indigent inmate status and there was no provision at ECI to provide him with postage for his outgoing legal mail in the meantime. (ECF No. 1-1). In the ARP, Asemani indicated that four pieces of legal mail had been returned to him for insufficient funds. (ECF 1-1). He also indicated that he had 15 active legal cases in various federal and state courts. Id. Of these, trial dates were approaching in two cases. Id. Asemani stated that when he was housed at Western Correctional Institution ("WCI"), he had "reached an understanding with the Business Office" that when charges for postage were posted to his account and there were insufficient funds, the amount of the postage was debited to the "owed or due balance" account and he would pay the charge at another time. Id. Asemani proposed initiating such an arrangement to resolve his ARP. Id.

         DEFENDANT'S RESPONSE

         Asemani transferred to ECI on March 4, 2016, from WCI. (ECF No. 19-2 ¶ 1, Decl. of Susan Shumaker, ECI Litigator Coordinator). He filed this Complaint on April 20, 2016. As an inmate on Protective Custody ("PC"), he receives up to one and one-half hours of library time each week. Id. ¶3. Since July 22, 2016, Asemani has held a prison job in the library which gives him additional time to access library resources. As a result, he receives more library time than the typical inmate at ECI. Id.

         On April 4, 2016, Asemani filed ARP #ECI-ARP-0650-16 concerning his difficulty obtaining postage stamps and purported mail delays. He was asked to resubmit his ARP with more information, which he did on April 8, 2016. Id. ¶4. The ARP was dismissed because Asemani had the opportunity to purchase stamps but declined, and he did not qualify as indigent to excuse him from paying postage. Id. Further, there was no evidence to support his claim that the mailroom was not sending out his mail. Id. Between March 4, 2016, when Asemani transferred to ECI, and April 20, 2016, when he filed this Complaint, Asemani did not file any other ARPs concerning his mail, access to the courts, or library time. Id.

         Asemani has filed two relevant grievances with the Inmate Grievance Office ("IGO"). Both were filed after he filed the instant Complaint and dismissed on July 29, 2016. Asemani filed the first grievance, on May 24, 2016, as an appeal of ARP-0723-16, complaining his outgoing mail at ECI had been returned for insufficient postage. ECF No. 19-3 at ¶ 3(b) (Decl. of Robin Woolford, IGO Deputy Director). The IGO dismissed the first grievance on July 29, 2016, for failure to state a claim. Id. Asemani's second grievance was filed on June 3, 2016, and challenged the disposition of ARP-0650-16. Id. at ¶ 3(a). In it, he also complained that his legal mail had been returned due to insufficient funds and repeated his concerns about postage. Id.

         STANDARD OF REVIEW

         1. MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

         To obtain a preliminary injunction, a movant must demonstrate: 1) that he is likely to succeed on the merits; 2) that he is likely to suffer irreparable harm in the absence of preliminary relief; 3) that the balance of equities tips in his favor; and 4) that an injunction is in the public interest. See Winter v. Natural Resources Defense Council, Inc.,555 U.S. 7, 20 (2008). All four elements must be satisfied. The Real Truth About Obama, Inc. v. Federal Election Commission,575 F.3d 342, 346 (4th Cir. ...


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