Hunnewell v. Warden, Maine

Opinion

USCA1 Opinion

          February 23, 1994     [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 93-1917

DALE S. HUNNEWELL,

                                Plaintiff, Appellant,

                                          v.

                             WARDEN, MAINE STATE PRISON,

                                 Defendant, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                   [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]
                                             _____________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ___________________

               Dale S. Hunnewell on brief pro se.
               _________________
               Michael E. Carpenter, Attorney General,  and Cabanne Howard,
               ____________________                         ______________
          Deputy Attorney General, on brief for appellee.

__________________

                                  __________________

Per Curiam.   Plaintiff-appellant  Dale S.  Hunnewell, a
                 __________

            Maine inmate, appeals pro se the dismissal of his 42 U.S.C.  

            1983 action against Martin Magnusson, the warden of the Maine

            State  Prison and  the Maine  Correctional Institution-Warren

            (MCI-Warren).  With one exception, we affirm the dismissal of

            plaintiff's claims.

                                      BACKGROUND

                 Appellant filed  a complaint  in the  district court  on

            December 9, 1992.  It alleges violations under the Eighth and

            Fourteenth Amendments of the United States Constitution:  (1)

            deprivation  of  due  process when  appellant  was  placed in

            administrative segregation at  Maine State Prison  on October

            24,  1992 and  not given  a hearing;  (2) deprivation  of the

            right to earn three days  of work-related good time per month

            after his transfer to MCI-Warren on October 27, 1992; and (3)

            subjection  to unhealthy and unsafe living conditions at MCI-

            Warren.   Hunnewell seeks  prospective injunctive  relief and

            damages.  

                 Appellee   Magnusson  filed  a  motion  to  dismiss  the

            complaint, pursuant to Fed. R.  Civ. P. 12(b)(6), for failure

            to state a claim upon which relief can be granted.  On August

            9, 1993, a magistrate judge granted the motion to dismiss.1

____________________

            1.  Pursuant to 28 U.S.C.   636(c), the parties  consented to
            proceed   before   a    United   States   Magistrate   Judge.
            Accordingly, the  magistrate had  jurisdiction to direct  the
            entry of a judgment of  the district court, and appellant was
            entitled to appeal  directly to this court.  See  28 U.S.C.  
                                                         ___

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DISCUSSION

                 Appellate review of  a dismissal under Rule  12(b)(6) is

            plenary.  See, e.g., Miranda v. Ponce Fed. Bank, 948 F.2d 41,
                      ___  ____  _______    _______________

            44 (1st Cir. 1991).   The standard for assessing the adequacy

            of a  civil rights  claim is  whether, accepting the  factual

            allegations  in the complaint  as true, and  construing these

            facts  in the  light  most favorable  to  the plaintiff,  the

            pleading shows any facts which could entitle the plaintiff to

            relief.   See, e.g.,  Leatherman v. Tarrant  County Narcotics
                      ___  ____   __________    _________________________

            Intelligence  & Coordination Unit,  113 S. Ct.  1160, 1161-63
            _________________________________

            (1993); Gooley  v. Mobil  Oil Corp., 851  F.2d 513,  514 (1st
                    ______     ________________

            Cir. 1988).   Because appellant  appears pro se, we  read his

            complaint with  an  extra  degree  of solicitude.    Rodi  v.
                                                                 ____

            Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991).
            __________

                                          I.

                 We  first address appellant's  claim that he  was denied

            due process of law when he  was transferred to administrative

            segregation and never  given a hearing.2   Appellant concedes

            that the Constitution does not  endow inmates with a right to

____________________

            636(c)(3).

            2.  The record indicates that the transfer to segregation was
            an emergency transfer  motivated by a concern  that appellant
            was  engaging in an activity which could incite other inmates
            and  "jeopardize  the  orderly  management  of  the  prison."
            Hunnewell was given notice of these reasons, but there was no
            review of the transfer.

                                         -3-

remain in  the  general population.    See, e.g.,  Hewitt  v.
                                                   ___  ____   ______

            Helms, 459  U.S. 460,  467-68 (1983); Rodi,  941 F.2d  at 25.
            _____                                 ____

            Hunnewell  argues, however,  that Maine  law  creates such  a

            protected liberty interest.

                   When a prison inmate advances the claim made  here, we

            typically engage in a two step inquiry.  We first ask whether

            an  enforceable   interest  in   remaining  in   the  general

            population has been  created by the state.   See, e.g., Rodi,
                                                         ___  ____  ____

            941 F.2d at  25.  If  the answer is  affirmative, we  further

            inquire whether the plaintiff arguably received less than the

            process  that  was constitutionally  due.    See id.    Here,
                                                         ___ ___

            however,  we need  not address  the  first question.   If  we

            assume,  without  deciding,  that plaintiff  had  a protected

            liberty interest, he  was only entitled to a  review within a

            reasonable time following  his transfer to segregation.   See
                                                                      ___

            Hewitt, 459 U.S.  at 476 n.8.  Plaintiff's claim  that he was
            ______

            unconstitutionally  denied such a review is infirm because he

            was  only in administrative segregation for three days before

            being  transferred to another  institution.  Cf.  Hewitt, 459
                                                         ___  ______

            U.S.  at 477  (no  deprivation of  due  process where  review

            occurred five days after transfer).3

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            3.  In his response to the answer, Hunnewell alleges, for the
            first time,  that he remained in  administrative segregation,
            following  his  transfer  to MCI-Warren.    He  supports this
            allegation  with the claim that the conditions of confinement
            of all  inmates at  MCI-Warren, at  least until December  17,
            1992,  were   similar  to   those  imposed   on  inmates   in
            administrative segregation at Maine State Prison.  Even if we

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II.

                 We next address plaintiff's claim that at MCI-Warren, he

            is unconstitutionally denied his right to earn three days  of

            work-related  good time credits per month.4  The Constitution

            does not guarantee a right to  earn good time credits.  Wolff
                                                                    _____

            v. McDonnell, 418 U.S. 539,  557 (1974).  Accordingly, such a
               _________

            right, if it exists, must be based in state law.  

                 "[A]  state  creates  a protected  liberty  interest  by

            placing  substantive  limitations  on  official  discretion."

            Bowser v. Vose, 968 F.2d 105, 107 (1st Cir. 1992) (alteration
            ______    ____

            in original) (quoting  Olim v. Wakinekona, 461  U.S. 238, 249
                                   ____    __________

            (1983)).    The  Maine statute  governing  good  time credits

            entitles  inmates to receive credits for "observing all rules

            of the department and institution."  Me. Rev. Stat. Ann. tit.

____________________

            were to construe  Hunnewell's complaint liberally  to include
            these later allegations,  we would not alter  our conclusion.
            Hunnewell  does  not  allege that  he  was unconstitutionally
            transferred to MCI-Warren,  or that he was  treated there any
            differently than  members of  the general  prison population.
            Accordingly, he fails to  state a claim that a  review of his
            treatment at  MCI-Warren was constitutionally required.   Cf.
                                                                      ___
            Hewitt,  459 U.S. at 485-86 (Stevens, J., dissenting) (noting
            ______
            that  the  Due  Process  Clause is  implicated  only  when  a
            prisoner is  singled out  for treatment  different from  that
            imposed on the population of the prison as a whole).  

            4.  Plaintiff does not  complain that he is  totally deprived
            of  the opportunity to earn work-related good-time credits at
            MCI-Warren.   Rather, he complains that inmates at MCI-Warren
            B Side are limited to one extra good time credit  and inmates
            at MCI- Warren C Side are limited to two extra credits in any
            month, regardless of the number of days worked in that month.
            Plaintiff seeks prospective, injunctive relief.

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17A,    1253(3), (3-B).   With respect  to work-related  good

            time credits, however, the statute states:

                 Up  to  an  additional  3  days  per  month  may be
                                                              ___
                 deducted  in the case of those inmates committed to
                 the Department  of Corrections who  are assigned or
                 participating   in   work,   education   or   other
                 responsibilities within the  institution or program
                 that are determined to be  of sufficient importance
                 to warrant those deductions by the institution head
                 in   accordance   with    policy   and   guidelines
                 established by the Department of Corrections.

            Me. Rev. Stat. Ann. tit. 17A,   1253(4) (emphasis added).  No

            liberty interest in  work-related credits  derives from  this

            statute, since  it is  phrased in discretionary  terms.   See
                                                                      ___

            Bowser, 968  F.2d at  108 (no  liberty interest  derived from
            ______

            furlough  statute phrased  in discretionary terms);  see also
                                                                 ________

            Parkinson v.  State, 558 A.2d  361, 363 (Me.  1989) ("[U]nder
            _________     _____

            17-A M.R.S.A.    1253(4), work-related  good time  is not  an

            entitlement but is  awarded only at  the discretion of  Maine

            prison officials."). 

                 In support of  his claim, however, plaintiff  relies, in

            part, on policy guidelines governing good time credits issued

            by the  Maine Department of Corrections.   See Code Me.  R.  
                                                       ___

            03.201010 at 9-14.  We have, in previous cases, looked beyond

            state   statutes   and  scrutinized   administrative   rules,

            regulations,  contractual   commitments,  and  the   like  to

            determine whether a state has conferred a liberty interest on

            a prison inmate.  See, e.g., Rodi,  941 F.2d at 26 (and cases
                              ___  ____  ____

            cited  therein).    Correctional  regulations  may  create  a

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liberty  interest if they contain "specific directives to the

            decision   maker  that   if   the  regulations'   substantive

            predicates  are present, a  particular outcome  must follow."

            Kentucky Dep't of Corrections v.  Thompson, 490 U.S. 454, 463
            _____________________________     ________

            (1989).    However, not  all  written regulations  containing

            substantive criteria for action  create legitimate claims  of

            entitlement.  Some  regulations are simply advisory  to staff

            and create no rights.  See,  e.g., Miller v. Henman, 804 F.2d
                                   ___   ____  ______    ______

            421, 427 (7th  Cir. 1986), cert. denied, 484  U.S. 844 (1987)
                                       ____________

            (documents designed  to guide  prison staff,  rather than  to

            create  claims of  entitlement, do  not  establish a  liberty

            interest).

                 Because  the magistrate  judge did  not  address whether

            Maine correctional policies create an enforceable interest in

            work-related good time  credits, and the  issue has not  been

            fully briefed, we  have concluded that the best  course is to

            remand the  case for further  proceedings on this issue.   We

            express no opinion on the  merits of plaintiff's claim or the

            appropriateness of the particular relief requested.

                                         III.

                 Plaintiff's  remaining claims  involve allegations  that

            the conditions of  his confinement at MCI-Warren  violate the

            Eighth  Amendment.   He alleges  that  he is  locked up  in a

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closed-in  cell  for  twenty-three hours  a  day;5  that cell

            lights are on during the night, making it difficult to sleep;

            that the ventilation  system blows dust  and fibers into  his

            cell causing him to have  headaches and bloody noses; that he

            is not adequately protected from the  danger of a fire in his

            cell; and that he risks injury because the mirror in his cell

            is  placed too high,  and he must  stand on his  toilet if he

            wishes to see his reflection.  In addition, Hunnewell alleges

            that he  is daily  subjected to the  risk of  acquired immune

            deficiency syndrome (AIDS)  because his razor is stored  in a

            box where it intermingles with other inmates' razor such that

            it is exposed to contamination from other inmates' blood.6

                 In  order  successfully  to allege  an  Eighth Amendment

            violation, plaintiff must  first plead facts which,  if true,

            establish  an   objective  component--that   a  "sufficiently

            serious" deprivation occurred.  Wilson v. Seiter,  111 S. Ct.
                                            ______    ______

            2321,  2324 (1991).    Only  deprivations  which  deny  "`the

            minimal  civilized   measure  of   life's  necessities'   are

            sufficiently grave to  form the basis of an  Eighth Amendment

____________________

            5.  Hunnewell  has revised his  claim to  allege that  he was
            isolated for twenty-three hours a day at MCI-Warren from  the
            date of his transfer there  until December 17, 1992, when the
            out-of-cell  time period of all general population inmates at
            MCI-Warren was increased from one hour to an hour and a half.

            6.  Hunnewell concedes that this practice of storing inmates'
            razors together  has ceased.   However,  he alleges that  the
            practice  continued for  approximately  forty-eight days  and
            seeks damages for emotional distress.

                                         -8-

violation."  Id. at 2324 (quoting Rhodes v. Chapman, 452 U.S.
                         ___                  ______    _______

            337, 347  (1981)); see also  Hudson v. McMillian, 112  S. Ct.
                               ________  ______    _________

            995, 1000  (1992)  ("[E]xtreme deprivations  are required  to

            make out a condition of confinement claim.").  In addition, a

            subjective element  must be  shown--"deliberate indifference"

            on the part of the official charged with inflicting cruel and

            unusual punishment.   Wilson,  111 S. Ct.  at 2327;  see also
                                  ______                         ________

            Helling v. McKinney, 113 S. Ct. 2475, 2480 (1993).
            _______    ________

                 Plaintiff's complaints about  the lighting, ventilation,

            and  placement of  his  mirror  do  not  allege  deprivations

            sufficiently  extreme   to  establish  a   cognizable  Eighth

            Amendment claim.   See Rhodes  v. Chapman, 452 U.S.  337, 347
                               ___ ______     _______

            (1981)  (routine discomforts  are part  of  the penalty  that

            criminal offenders  pay for  their offense  against society).

            The  same is  true of  his complaint  about isolation.   See,
                                                                     ___

            e.g., Jackson  v.  Meachum, 699  F.2d 578,  581-83 (1st  Cir.
            ____  _______      _______

            1983) (holding  that  very  extended,  indefinite  segregated

            confinement, without additional deprivations, did not violate

            Eight Amendment); O'Brien v. Moriarty, 489 F.2d 941, 944 (1st
                              _______    ________

            Cir. 1974) (segregated confinement  for twenty-three hours  a

            day did not constitute cruel and unusual punishment).  

                 Plaintiff's remaining claims fail for different reasons.

            There is no question that fire safety is a legitimate concern

            under the  Eighth Amendment.   Santana  v. Collazo, 714  F.2d
                                           _______     _______

            1172,  1182  (1st  Cir.  1983), cert.  denied,  466  U.S. 974
                                            _____________

-9-

(1984).    However,  not every  deviation  from  ideally safe

            conditions  constitutes a violation of the constitution.  Id.
                                                                      ___

            Moreover,  even  liberally construed,  plaintiff's  complaint

            that his cell is unsafe due to fire hazards is conclusory and

            fails to state a claim under    1983.  See Correa-Martinez v.
                                                   ___ _______________

            Arrillaga-Belendez,  903   F.2d  49,   52  (1st  Cir.   1990)
            __________________

            (reviewing court need not credit conclusory allegations).  We

            note  that although plaintiff  states that there  are various

            (undefined) ways that an  electrical fire could start  in his

            cell, he nowhere states that MCI-Warren lacks fire detectors,

            fire extinguishers, or an evacuation plan.  

                 Hunnewell's  complaint that he has been subjected to the

            risk of acquiring  AIDS is also inadequate as  framed.  Other

            courts  have held  that there  is no  colorable    1983 claim

            where  the  alleged risk  of  contracting the  AIDS  virus is

            unsubstantiated by medical  guidelines.  See, e.g.,  Glick v.
                                                     ___  ____   _____

            Henderson, 855  F.2d 536, 539  (8th Cir. 1988).   Because the
            _________

            matter has not been adequately briefed,  we pass the question

            whether the  AIDS  virus can  be  transmitted in  the  manner

            posited and, if so, whether prison officials should have been

            aware  of  the risk  in the  fall  of 1992.   Apart  from the

            latter, plaintiff has failed to allege sufficient involvement

            or knowledge to state a   1983 claim against the warden.  See
                                                                      ___

            Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.
            ___________________    _________

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1989) (liability  under   1983  may not be predicated  upon a

            theory of respondeat superior).    

                                         IV.

                 In  sum, Hunnewell failed  to plead facts  sufficient to

            establish that  he was denied  due process by the  failure to

            hold   a  hearing  or  that  his  conditions  of  confinement

            constituted cruel and unusual punishment.  Accordingly, these

            claims  were   properly  dismissed.    As  to  his  claim  of

            unconstitutional deprivation of good time  credits, we vacate

            the dismissal  of the  complaint and remand  to the  district

            court for further proceedings.

                 Affirmed in  part; vacated  in  part and  remanded.   No
                                                                       __

            costs.
            _____

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