ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil 80-0106).
Before Adams, Rosenn and Higginbotham, Circuit Judges. Argued May 19, 1981. Reargued In Banc Nov. 23, 1981. Before Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
On January 30, 1980, appellants Royce Kerchner*fn1 and Bernard Ryan, inmates at the State Correctional Institution at Rockview (Rockview) filed a class action civil rights complaint under 42 U.S.C. § 1983 seeking preliminary and final injunctive relief against two prison officials. Appellants contended that defendants were required by the sixth and fourteenth amendments to provide indigent inmates with free legal supplies including pads, pens, pencils, photocopying, and postage. Three issues are presented for consideration: first, whether the district court erred when it denied the inmates' motion for a preliminary injunction; second, whether this Court has appellate jurisdiction to review at this time the district court's denial of class certification; and finally, assuming there is jurisdiction over the denial of class certification, whether the trial court abused its discretion in denying class certification. We believe that the district court did not err in denying the motion for preliminary injunctive relief, and affirm the judgment of the district court in this regard. Because we conclude, however, that the order denying class certification is not now appealable, we do not reach the merits of the third issue.
Kerchner and Ryan brought suit against Dr. J. F. Mazurkiewicz, the Superintendent of Rockview, and Gary R. Gerber, the Librarian at Rockview, for their alleged refusal to provide without cost certain legal supplies and documents both to the named plaintiffs and to other allegedly indigent inmates. In this respect, Pennsylvania law provides that: "Adequate legal size paper shall be available in institution commissaries for purchase by inmates." 37 Pa.Code § 93.2(a). The inmate handbook for Rockview further provides:
LEGAL MATERIAL AND NOTARY PUBLIC
1. You may purchase any legal material you believe to be valuable to you in seeking legal remedies. The amount permitted in your cell at any one time may be limited depending on individual circumstances.
2. Some legal materials are available at the institutional library for your use.
3. The institution will provide notary service for documents requiring notarization. A request slip should be directed to the Records Office in the institution for Notary Public Services.
As a result of the operation of the above policy, Kerchner complains that he has been "forced ... to pay for legal supplies and materials in seeking ... legal remedies ... despite his indigency and (has been) placed ... in the position of either foregoing these supplies and materials in the pursuit of legal remedies or giving up the few amenities available in prison life." P 16, Plaintiffs' Complaint, Appendix at 10.
Kerchner earns $35.00 per month from his institutional job. During his incarceration Kerchner has had less than $60.00 in his institutional account at any one time; his average balance through January 2, 1980 was approximately $21.72. Ryan's average balance was $12.00; on January 2, 1980, he had $25.85 in his institutional account. Appendix at 19-23.
At the outset it must be stressed that the appellants did not establish that there was any instance in which they were unable to pursue any legal action because of the cost of legal supplies and photocopying. Rather, they assert that in being required to use their own limited funds they have been or will be deprived of certain unspecified amenities. The first issue before us, then, is simply whether the district court erred in denying a preliminary injunction that would have required the Commonwealth to supply, without cost to the named plaintiffs, pads, pens, pencils, postage, photocopying and other legal materials when the plaintiffs had funds in their institutional accounts sufficient to purchase those items.*fn2
A preliminary injunction is not granted as a matter of right. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S. Ct. 573, 66 L. Ed. 2d 473 (1980). It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party "will be irreparably injured pendente lite if relief is not granted." Id. at 136; Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir. 1980). The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. Eli Lilly & Co., 630 F.2d at 136. The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision. Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972). Consequently, the scope of appellate review of a trial court's ruling is narrow. Unless the trial court abused its discretion, or committed an error in applying the law, we must take the judgment of the trial court as presumptively correct. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357 (3d Cir. 1980).
In this instance, the case was referred to Magistrate Raymond J. Durkin, who wrote a thoughtful opinion and recommendation. He concluded that the plaintiffs failed to carry their burden to show either "a probability of success on the merits or that they will suffer irreparable harm if the preliminary injunction is not granted." Appendix at 57. Magistrate Durkin found that
there has been no demonstration in the complaint or other documents that any prisoner has not been able to perfect and pursue a legal action due to the written policy concerning postage and the policy regarding paper and writing utensils, even if informal. With respect to the specific matters in dispute, it is recognized by plaintiffs that each inmate is permitted without cost to mail 10 one-ounce first class letters or the equivalent thereof in postage per month up to $1.50, and there has been no demonstration that any prisoner who exceeded this limit and was without funds and found himself in an emergency situation with respect to court matters was refused postage. In the absence of such demonstration, it would appear that prison officials would be free to establish some limitation on free postage.
With respect to the matter of free photocopying, plaintiffs once again have not pointed to any instance in which an inmate was actually denied access to the courts by reason of being unable to photocopy documents when he did not have the funds to pay for the photocopying service.
Appendix at 58, 60. The district court approved and adopted the Magistrate's recommendation to deny the preliminary injunction "for the reasons set forth in his report." Appendix at 69.
On appeal, the inmates reiterate their claim that they were irreparably harmed because they were forced into a position in which they had "to choose to forego legal remedies for the few "amenities of prison life' they have funds to purchase, or forego these "amenities in pursuit of legal remedies.' " Appendix at 53. But appellants do not in any way specify what these amenities are. Nor do they allege that they were deprived of their basic necessities. They assert merely that they have "clear" constitutional rights that are being violated, and that the violation of constitutional rights for ...