Hunnewell v. Warden, Maine
Hunnewell v. Warden, Maine
Hunnewell v. Warden, Maine
Opinion
USCA1 Opinion
February 23, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1917
DALE S. HUNNEWELL,
Plaintiff, Appellant,
v.
WARDEN, MAINE STATE PRISON,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Dale S. Hunnewell on brief pro se.
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Michael E. Carpenter, Attorney General, and Cabanne Howard,
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Deputy Attorney General, on brief for appellee.
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Per Curiam. Plaintiff-appellant Dale S. Hunnewell, a
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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
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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,
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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
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Intelligence & Coordination Unit, 113 S. Ct. 1160, 1161-63
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(1993); Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st
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Cir. 1988). Because appellant appears pro se, we read his
complaint with an extra degree of solicitude. Rodi v.
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Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991).
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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
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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.
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remain in the general population. See, e.g., Hewitt v.
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Helms, 459 U.S. 460, 467-68 (1983); Rodi, 941 F.2d at 25.
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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,
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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,
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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
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Hewitt, 459 U.S. at 476 n.8. Plaintiff's claim that he was
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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
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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
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v. McDonnell, 418 U.S. 539, 557 (1974). Accordingly, such a
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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
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in original) (quoting Olim v. Wakinekona, 461 U.S. 238, 249
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(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.
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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.
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Hewitt, 459 U.S. at 485-86 (Stevens, J., dissenting) (noting
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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
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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
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Bowser, 968 F.2d at 108 (no liberty interest derived from
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furlough statute phrased in discretionary terms); see also
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Parkinson v. State, 558 A.2d 361, 363 (Me. 1989) ("[U]nder
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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.
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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
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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
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(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
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421, 427 (7th Cir. 1986), cert. denied, 484 U.S. 844 (1987)
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(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.
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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
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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.
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violation." Id. at 2324 (quoting Rhodes v. Chapman, 452 U.S.
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337, 347 (1981)); see also Hudson v. McMillian, 112 S. Ct.
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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
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Helling v. McKinney, 113 S. Ct. 2475, 2480 (1993).
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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
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(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,
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e.g., Jackson v. Meachum, 699 F.2d 578, 581-83 (1st Cir.
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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
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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
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1172, 1182 (1st Cir. 1983), cert. denied, 466 U.S. 974
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(1984). However, not every deviation from ideally safe
conditions constitutes a violation of the constitution. Id.
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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.
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Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)
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(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.
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Henderson, 855 F.2d 536, 539 (8th Cir. 1988). Because the
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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
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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
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costs.
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