                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          FEB 11 1997
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    RONALD LEE SMITH,

               Plaintiff-Appellant,

         and                                           No. 96-1211
                                                    (D.C. No. 94-K-123)
    ALONZO BUGGS,                                        (D. Colo.)

               Plaintiff,

    v.

    ROY ROMER, GALE NORTON,
    ARISTEDES ZAVARAS, DONICE
    NEAL, and JOHN HADLEY,

               Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before TACHA, EBEL, and BRISCOE, Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff Ronald Lee Smith appeals from the district court’s order

dismissing one claim of his pro se civil rights action filed pursuant to 42 U.S.C. §

1983 and entering summary judgment on the remaining claims. 1 We review the

district court’s rulings de novo, Roman v. Cessna Aircraft Co., 55 F.3d 542, 543

(10th Cir. 1995) (dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a

claim); Wolf v. Prudential Ins. Co., 50 F.3d. 793, 796 (10th Cir. 1995) (the grant

or denial of summary judgment motion), and affirm.

      Plaintiff is a convicted felon who has been assigned to administrative

segregation at the Colorado State Penitentiary (CSP), which is the highest custody

level in the most controlled environment of the Colorado Department of

Corrections (DOC). He alleges that defendants, Roy Romer (the governor of

Colorado); Gale Norton (the attorney general of Colorado); Aristedes Zavaras (the

executive director of the DOC); Donice Neal (the superintendent of CSP); and

John Hadley (the program director of CSP) have violated his civil rights by (1)



1
      Plaintiff Alonzo Buggs failed to sign the notice of appeal, and thus is not a
proper party to the appeal. See 10th Cir. R. 3.1.

                                         -2-
subjecting him to cruel and unusual punishment, (2) interfering with his access to

courts, and (3) depriving him of due process of the law.


I.    Cruel and Unusual Punishment

      The Eighth Amendment, applicable to the states through the Due Process

Clause of the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 666

(1962), prohibits the infliction of cruel and unusual punishment on those

convicted of crimes. A successful Eighth Amendment challenge to conditions of

confinement requires a showing on an objective component, concerning the

seriousness of the deprivation, and a subjective component, concerning the

culpable state of mind of prison officials. See Wilson v. Seiter, 501 U.S. 294,

298 (1991).

      The objective component of the test is satisfied only if the alleged

deprivations deny “‘the minimal civilized measure of life’s necessities.’” Id. at

298 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In examining an

assertion that numerous conditions interact to form cruel and unusual punishment,

a court must be aware that

      Some conditions of confinement may establish an Eighth Amendment
      violation ‘in combination’ when each would not do so alone, but only
      when they have a mutually enforcing effect that produces the
      deprivation of a single, identifiable human need such as food,
      warmth, or exercise--for example, a low cell temperature at night
      combined with a failure to issue blankets. . . . Nothing so amorphous
      as ‘overall conditions’ can rise to the level of cruel and unusual

                                        -3-
      punishment when no specific deprivation of a single human need
      exists.

Wilson, 501 U.S. at 304-05 (citations omitted).

      Inmates assigned to administrative segregation at CSP 2 are confined to their

individual cells for approximately twenty-three hours a day. Plaintiff argues that

this extended cell time constitutes cruel and unusual punishment in view of (1)

the lack of cleaning service or, alternatively, the need for hotter water and

additional cleaning supplies in the cell; (2) the eating of meals in the cell, within

a few feet of the toilet; (3) the limited vocational, educational and recreational

services offered through a television set in the cell; (4) the restriction of exercise

to one hour a day in an individual exercise cell; (5) the presence of a night light

that inmates cannot turn off; and (6) unsanitary and unventilated shower stalls.

      Only the allegations relating to conditions in the shower stalls satisfy the

objective prong of the Eighth Amendment test. The other complaints in

plaintiff’s inventory do not relate to life’s necessities. Confinement to a cell for

twenty-three hours a day does not necessarily amount to a constitutional violation.

See Anderson v. County of Kern, 45 F.3d 1310, 1316-17 (9th Cir. 1995); see also



2
      The DOC definition of administrative segregation is “the confinement of an
inmate in the most secure, controlled environment available . . . for the purpose of
protecting the security of the facility, staff, inmates and the public.” DOC Reg.
202-2. The DOC periodically evaluates inmates to determine if they may be
advanced through levels of security. DOC Reg. 600-1.

                                          -4-
Peterkin v. Jeffes, 855 F.2d 1021, 1029 (3d Cir. 1988) (confinement for twenty-

two hours a day). As to the allegations concerning cell cleanliness, it is

undisputed that inmates are provided with at least a minimal amount of cleaning

supplies. Requiring inmates to eat meals in cells that they must clean themselves

does not present an excessive risk to inmate health or safety. Cf. Wishon v.

Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (observing that prison officials are

not responsible for allegedly unsanitary cell conditions where prisoner is provided

with supplies to do his own cleaning).

      Prisoners have no constitutional right to a range of educational or

vocational opportunities during incarceration. See id., 978 F.2d at 450.

Similarly, they have a right to exercise, but not recreation. A CSP exercise cell

meets minimum standards for exposure to fresh air and exercise. See Housley v.

Dodson, 41 F.3d 597, 599 (10th Cir. 1994); see also Harris v. Fleming, 839 F.2d

1232, 1236 (7th Cir. 1988) (holding no Eighth Amendment violation where

prisoner had shown that he was denied yard or recreation time, but not all

exercise). Finally, difficulty in sleeping caused by a night light with the

brightness of a nine-watt bulb falls far short of an extreme deprivation.

      The trial court properly entered summary judgment on these aspects of

plaintiff’s case. Separately or in combination, they do not deprive CSP inmates

of a single human need. However, the allegation that inmates have fainted in the


                                         -5-
shower from lack of ventilation raises a legitimate concern and meets the

objective component of the Eighth Amendment test. Therefore, the claim must be

evaluated under the subjective component, which requires a showing of

“deliberate indifference” on the part of prison officials. Wilson, 501 U.S. at 298.

Deliberate indifference can be found if the prison official knew of and

disregarded an excessive risk to inmate health or safety. “[T]he official must both

be aware of facts from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference.” Farmer v. Brennan,

511 U.S. 825, 114 S. Ct. 1970, 1979 (1994).

      Plaintiff makes no relevant 3 allegations concerning the knowledge or

intentions of the individuals named as defendants. In fact, he does not allege

sufficient facts to demonstrate a culpable mental state on the part of any prison

official, named or unnamed. The record shows that officials identified a shower

ventilation problem when the facility first opened and attempted to correct the

condition. Plaintiff asserts that incidents of fainting have been reported, but does

not provide a time frame. The claim relating to conditions in the shower stalls

was properly dismissed. 4

3
      In his brief, plaintiff argues at length that defendants’ political
considerations led to the conditions at CSP. This argument is irrelevant to an
Eighth Amendment analysis.
4
      The district court dismissed the claim against all defendants, including the
                                                                       (continued...)

                                         -6-
II.   Right of Access to the Courts

      Plaintiff claims that CSP’s policies and procedures infringed upon his

constitutional right of access to the courts, see Bounds v. Smith, 430 U.S. 817,

821 (1977), by providing him with insufficient access to library materials and

inadequate assistance from legal personnel.

      There is no independent right of access to a law library or legal assistance.

Lewis v. Casey, 116 S. Ct. 2174, 2179-80 (1996). An inmate cannot make out a

claim “simply by establishing that his prison’s law library or legal assistance

program is sub-par in some theoretical sense.” Id. at 2180. The inmate must

show that the denial of legal resources hindered his efforts to pursue a

nonfrivolous claim. Id. at 2179, 2182; see also Penrod v. Zavaras, 94 F.3d 1399,

1403 (10th Cir. 1996). Further, “the injury requirement is not satisfied by just

any type of frustrated legal claim.” Lewis, 116 S. Ct. at 2182. The claim must

involve a direct or collateral attack on the inmate’s sentence or a challenge to the

conditions of confinement. Id.




4
 (...continued)
superintendent of CSP, based on plaintiff’s failure to allege personal participation
in the asserted violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976). Because Farmer provides a more appropriate framework for
conditions of confinement cases, we do not analyze the district court’s reasoning
on this issue.

                                         -7-
         Plaintiff failed to allege or establish that he was injured by the alleged

inadequacies in CSP’s legal access and assistance programs. His conclusory

statement that he lost two cases “as the result of no legal assistance provided or

available,” Reply Brief at 6, is insufficient to withstand a summary judgment

motion. He provided no information concerning the type of cases that he “lost,”

the procedural posture of the cases, the merits of the cases, or the nature of the

assistance sought from CSP legal personnel. 5 The district court correctly

determined that defendants are entitled to summary judgment on the legal access

claim.


III.     Due Process of the Law

         Plaintiff’s final claim, asserting deprivation of due process of the law,

raises two possible theories: substantive due process and procedural due process.

To the extent that plaintiff is alleging that conditions at CSP amount to a

substantive due process violation, the claim is “essentially coextensive with

Eighth Amendment prohibitions against cruel and unusual punishment, and . . .

the Eighth Amendment serves as the primary source of protection for convicted

prisoners.” Lunsford v. Bennett, 17 F.3d 1574, 1583 (7th Cir. 1994). In the


5
       We note that CSP conditions did not impede the prosecution of this case.
Plaintiff filed the complaint on January 11, 1994, less than two months after his
CSP reception date of November 23, 1993. He missed no court-imposed
deadlines.

                                            -8-
absence of cruel and unusual punishment, there can be no deprivation of

substantive due process rights. Id.

      Moreover, plaintiff’s assignment to administrative segregation at CSP does

not provide him with a procedural due process claim. Neither the Constitution

nor Colorado prison rules and regulations create a liberty interest in prisoners’

classifications. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (concerning

the Constitution); Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994)

(concerning Colorado provisions). Summary judgment is the appropriate

disposition of plaintiff’s due process claim.

      After analyzing plaintiff’s arguments and examining the entire record, we

find no basis of error upon which to reverse. The judgment of the district court

is, therefore, AFFIRMED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




                                         -9-
