
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 93-2048        No. 94-1142                                  BRENDAN MCGUINNESS,                                Plaintiff, Appellant,                                          v.                               LARRY E. DUBOIS, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Brendan M. McGuinness on brief pro se.            _____________________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Rosemary Ford, on briefs for appellees.        _____________                                 ____________________                                     May 11, 1994                                 ____________________                 Per  Curiam.    The  plaintiff, Brendan  McGuinness,  an                 ___________            inmate at the Massachusetts Correctional Institution at Cedar            Junction, filed  a complaint, pursuant  to 42 U.S.C.    1983,            against eight prison administrators and officers.  McGuinness            has appealed a district court order granting summary judgment            in  favor of  the defendants  and denying  his request  for a            preliminary injunction.  We affirm.1                                          I.                 We  review  the  grant  of  summary  judgment  de  novo,            employing the same standards  as is required of  the district            court,  Webb v. Internal Revenue Serv., 15 F.3d 203, 205 (1st                    ____    ______________________            Cir.  1994), and mindful of our  duty to review the record in            the light most favorable to the nonmoving party, Shinberg  v.                                                             ________            Bruk, 875 F.2d 973, 974 (1st Cir. 1989).            ____                      A  motion for  summary  judgment must  be                      granted if  "there is no genuine issue as                      to  any material fact  and ... the moving                      party  is entitled  to  a  judgment as  a                      matter of  law."  Fed. R.  Civ. P. 56(c).                      To  succeed, the  moving party  must show                      that there is  an absence of  evidence to                      support  the nonmoving  party's position.                      Having done  so, the burden shifts to the                      nonmoving   party    to   establish   the                      existence of an issue  of fact that could                      affect  the outcome of the litigation and                      from which  a reasonable jury  could find                      for the opponent.  It is settled that the                      nonmovant   may   not   rest  upon   mere                      allegations,  but  must adduce  specific,                                            ____________________            1.  Our   affirmance  of  the   grant  of   summary  judgment            necessarily is an affirmance of the denial of the preliminary            injunction request.  We, therefore, do not address separately            the preliminary injunction issue.                                         -2-                      provable  facts demonstrating  that there                      is  a  triable  issue.    There  must  be                      sufficient    evidence    favoring    the                      nonmoving party  for a  jury to  return a                      verdict for that party.  If the  evidence                      is   merely   colorable    or   is    not                      significantly probative, summary judgment                      may be granted.            Rogers v. Fair, 902  F.2d 140, 143 (1st Cir.  1990) (internal            ______    ____            quotations and citations omitted).                                         II.                 In February 1992, McGuinness  admitted to attempting  to            flush his sweatshirt  down the toilet  in his cell.   He  was            found guilty of three  disciplinary offenses2 with respect to            this  incident.   McGuinness'  institutional folder  was then            reviewed.  He had  had 44 disciplinary reports in  two years,            including  six   assaults  on  staff,   four  violations  for            possession of a  weapon, and two  drug-related offenses.   At            the  time of  the flushing  incident,  McGuinness was  in the            prison's Departmental Segregation Unit (DSU) for assaulting a            staff  member.   After  reciting  this,  the hearing  officer            stated:                      [t]his  inmate exhibits  assaultive along                      with disruptive behavior both  in general                      population and segregation.   The conduct                      that the inmate has displayed makes him a                      viable candidate for  DDU.  This  type of                                            ____________________            2.  103 CMR  430.24(3): Failure to keep one's person or one's            quarters  in  accordance  with institutional  rules;  103 CMR            430.24(8): Conduct  which  disrupts or  interferes  with  the            security  or  orderly running  of  the  institution; 103  CMR            430.24(22):  Willfully destroying or  damaging state property            or the property of another person.                                         -3-                      defiant   behavior,   along  with   total                      disregard for the  rules and  regulations                      of  the  institution is  unacceptable and                      will not be tolerated.            Supplementary Record Appendix, No. 94-1142, ("SRA") at p. 20.            McGuinness was given a sanction of six months in the prison's            Departmental Disciplinary  Unit  (DDU).3   According  to  the            affidavit of  defendant Larry E. DuBois,  the Commissioner of            the  Massachusetts Department  of Corrections (DOC),  the DDU            has a maximum  capacity of  121 inmates and  is reserved  for            violent   inmates  and/or  those   with  severe  disciplinary            problems.  SRA at pp. 116-19.                                          A.                 McGuinness filed a    1983 action against several prison            officials  claiming  that  conditions  in  the  DDU  violated            provisions which  grew out of state  court litigation, Hoffer                                                                   ______            v. Fair, Supreme  Judicial Court,  No. 85-71.   Hoffer was  a               ____                                         ______            class  action  challenging  regulations  pertaining  to,  and            conditions  in, the prison's DSU.   As we  understand it, the            DSU is for administrative segregation and an inmate typically            is housed in the DSU because  he is believed to pose a threat                                            ____________________            3.  According to  the defendants, McGuinness  served his  six            month DDU  sentence  for the  flushing incident  from May  to            November 1992.  He was released from the unit, but upon being            found  guilty of an assault,  he received a  second six month            term in the DDU and began serving this term in February 1993.            Presently, according to the defendants, McGuinness is serving            yet  a third  six month  period in  the DDU,  as a  result of            another  assault.  SRA  at p. 128;  Defendants' brief, Appeal            No. 94-1142, at p.2 n.1.                                         -4-            to security.4   When that  threat has  dissipated, an  inmate            ought to be released back into the general prison population.            The  result  of the  Hoffer  litigation  was promulgation  of                                 ______            revised regulations, including those pertaining to the review            and  release of an inmate  after DSU placement.   The revised            regulations  provide  for  periodic  hearings  to  review  an            inmate's DSU classification and written guidance to an inmate            regarding what  he might do to shorten his DSU term.  See 103                                                                  ___            CMR 421.15(2)(c); 103  CMR 421.19(2)(a) (effective 12/15/89).            The revised regulations also provide for an expanded range of            activities  and privileges  than previously permitted  to DSU            inmates,  such as  access to  educational  and rehabilitative            programs.  103 CMR 421.21 (effective 12/15/89).                 While  the Hoffer  litigation was  pending in  the state                            ______            court,  Commissioner DuBois instituted the DDU  as a new unit                                            ____________________            4.             An  inmate may be placed or retained                      in  a DSU  only  after a  finding by  the                      Commissioner    based   on    substantial                      evidence that, if confined in the general                      population  of   any  state  correctional                      facility:                      (1)  The   inmate  poses   a  substantial                      threat to the safety of others; or                      (2)  The   inmate  poses   a  substantial                      threat   of    damaging   or   destroying                      property; or                      (3)  The   inmate  poses   a  substantial                      threat   to  the  operation  of  a  state                      correctional facility.            103 CMR 421.09 (effective 12/15/89).                                         -5-            for disciplinary segregation.5   A  sentence to  a period  of            confinement in  the DDU  is not subject  to periodic  review.            Inmates in  the DDU  are not  provided access  to educational            programs.  McGuinness'    1983 suit charges that the  new DDU            unit  is merely  the  pre-Hoffer DSU  by  another name.    He                                      ______            claimed that the improvements  in the conditions and programs            in the DSU  brought about through  the Hoffer litigation,  in                                                   ______            particular,  periodic  classification  review  and  access to            rehabilitative programs,  are applicable to the  DDU and that            the defendants have failed to provide him with those.                 Like the  district  court,  however,  we  conclude  that            summary judgment in  favor of the defendants  is warranted on            this claim.  The record is clear that the DSU,  which was the            subject of  the Hoffer litigation,  and the DDU  are separate                            ______            units, used  for distinct purposes.   Apart from Commissioner            DuBois'  affidavit, the  defendants  submitted a  copy of  an            April 1992 court order in the Hoffer litigation, in which the                                          ______            state  court  declined   to  enjoin  the   Commissioner  from            operating  the  DDU.   It  is  true  that the  denial  of the            injunction  was  without prejudice,  in  the  event that  the            Hoffer plaintiffs  could further develop their  factual claim            ______            regarding  the relationship between the DDU and the DSU.  SRA                                            ____________________            5.  According  to  DuBois'  affidavit, he  directed  that the            Department's regulations be amended  on an emergency basis so            as to deal with what he viewed to be an  emergency situation.            The   amended  regulations   with  respect   to  disciplinary            segregation went into effect on January 22, 1992.                                         -6-            at pp.  122-23.   McGuinness has presented  nothing, however,            indicating that the Hoffer plaintiffs subsequently  have been                                ______            successful in this claim.                 Moreover,   McGuinness  has  not  suggested  why  it  is            unlawful,  per  se,  to  treat an  inmate  in  administrative            segregation  differently  from   an  inmate  in  disciplinary            segregation.  We need  not, and therefore do not  purport to,            determine whether the conditions in  the DDU comply with  the            Federal Constitution,  but we note that  the reasons provided            by  the   defendants  for  the   distinct  treatment   appear            reasonably related to a legitimate penological interest.  See                                                                      ___            Turner  v. Safley,  482 U.S.  78, 89  (1987) (announcing  the            ______     ______            standard for  determining the validity of  prison regulations            which impinge on inmates' constitutional rights).  A DDU term            punishes "the most dangerous and repetitive kind of conduct,"            while the "DSU remains  a place to house and  control inmates            who pose a  danger to  themselves or  to others  but for  one            reason or another may  not be amenable to punishment  and for            whom the DDU  would serve  no penological  purpose."   DuBois            affidavit at p. 4.                 Because,   presumably,   an  inmate   in  administrative            segregation may  be entitled  to  release from  that type  of            segregation when  the  reasons for  its  implementation,  for            example,  a  threat  to  security, have  dissipated  and  his            behavior  in  the DSU  warrants  his release  to  the general                                         -7-            population, it is  reasonable to  require that  a DSU  inmate            have the possibility  of obtaining, and the means  to obtain,            that release  through periodic classification  review hearing            and access to  rehabilitative programs.   By contrast, a  DDU            inmate is being sanctioned for violent or severe disciplinary            problems  by a  fixed  period  of  a  more  severe  level  of            incarceration.   As there is  no entitlement to early release            from the DDU,  there would  appear no need  for the  periodic            classification  review hearing  nor have  we been  pointed to            authority for  the proposition that prison  officials may not            sanction an inmate by withdrawing educational programs during            his placement in higher security.                 We  further remark  that  the Hoffer  court, itself,  in                                               ______            addressing  the  conditions  in  administrative  segregation,            noted "the  necessity of  distinctions from the  treatment of            those confined for disciplinary violations and those confined            solely for administrative reasons."   Hoffer v. Fair, Supreme                                                  ______    ____            Judicial Court, No. 85-71, Memorandum, Order and Judgment #17            (Sept.  19, 1989),  SRA at  p. 76.   Suffice  it to  say that            summary  judgment   for  the  defendants  was   warranted  on            McGuinness'  claim that  conditions in  the DDU  violated the            state court's rulings in the Hoffer litigation.                                         ______                                          B.                 McGuinness' second contention is  that his access to the            law  library or  its materials,  while confined  to  the DDU,                                         -8-            fails  to comply  with a  "stipulation of  dismissal" entered            into  in the  Massachusetts  federal district  court case  of            Cepulonis v. Fair,  No. 78-3233-Z.  The  parties in Cepulonis            _________    ____                                   _________            stipulated  that  the  DOC  would maintain  a  satellite  law            library  in the  DSU  with a  designated  list of  particular            lawbooks.   The  stipulation  also  contained provisions  for            requesting  access to  the satellite  library, access  to the            main prison library or to material available there but not in            the  satellite  library,  and  provisions  regarding  library            hours.   The short answer  is that the  Cepulonis suit was  a                                                    _________            class action concerning law  library access of inmates housed            in the DSU.  It did not speak to the DDU which, we recognize,                   ___            had not yet been created.  But, by the same token, an alleged            failure to  comply with  the stipulation in  Cepulonis (which                                                         _________            addresses the DSU) may  be a questionable thread on  which to            hang a claim regarding the contours of the entitlement of the            law library access in the DDU.                 The  record  indicates  that an  inmate  in  the  DDU is            permitted a minimum of  two hours access per  week to a  book            cart with a  selection of starter volumes6; may  request from                                            ____________________            6.  According to the affidavit  of defendant Ronald T. Duval,            the Superintendent  of MCI Cedar Junction,  these include the            Federal  Rules of  Criminal Procedure,  the Federal  Rules of            Civil Procedure, the Local  Rules of the U.S. District  Court            for  the District  of  Massachusetts,  the  Federal  Practice            Digest on Prisons, Constitutional  Law, and Criminal Law, the            Massachusetts  Rules  of  Court, the  Massachusetts  Practice            volumes on Criminal Practice  and Procedure and Criminal Law,            Massachusetts Criminal Law and  Procedure, Cohen, How to Find                                                              ___________                                         -9-            the prison's law  librarian any  legal materials,  up to  six            items at one  time, including legal research material  in the            prison's  main law library which is not available in the DDU,            which the inmate identifies, either by name or general topic;            and may  retain loaned  legal material  in his  cell provided            that  it does not exceed  the one cubic  foot maximum level.7            We do not purport to resolve here (because it is not squarely            presented) whether these  provisions for  law library  access            while in the DDU suffice to meet any constitutional threshold            for  access  to  the courts.8    We  conclude  only that  the            defendants were entitled  to summary judgment  on McGuinness'            claim that  the provisions for  law library access,  while in            the  DDU,  violate  the   stipulation  entered  into  in  the            Cepulonis case regarding the DSU.            _________                                            ____________________            the Law, Gobert and Cohen,  Rights of Prisoners, and  Black's            _______                     ___________________            Law Dictionary.  SRA at p. 127.            7.  According to Duval's affidavit, DDU inmates also have the            opportunity  to  retain and  consult  with  outside, licensed            counsel, both in person and by telephone.            8.  To succeed on a claim of denial of a constitutional right            of access  to courts, a  prisoner may be required  to show an            "actual injury" to his ability to participate meaningfully in            the legal  process, unless the deprivation  is so significant            as to constitute an injury in and of itself.  Sowell v. Vose,                                                          ______    ____            941 F.2d 32, 34-35 (1st Cir. 1991) (per curiam).  A challenge            to the basic  adequacy of  available materials  may typify  a            classic  allegation  of  inherent prejudice,  but  not  every            restriction   on  access  to  a  prison  law  library  is  an            inherently injurious act.  Id. at 34.                                       ___                                         -10-                                          C.                 McGuinness'  third claim was  that 103 CMR 430.25(3)(d)9            which authorizes,  as a disciplinary sanction,  a sentence to            the  DDU  for  a period  of  up  to  ten years  impermissibly            conflicts with  Mass. Gen.  L. ch. 127,    40.   That statute            reads:                           For  the enforcement  of discipline,                      an inmate in any correctional institution                      of   the   commonwealth   may,   at   the                      discretion  of   its  superintendent,  be                      confined,  for  a  period not  to  exceed                      fifteen days  for any one offence,  to an                      isolation unit.                           Such  isolation  units must  provide                      light, ventilation  and adequate sanitary                      facilities,  may  contain  a  minimum  of                      furniture, and shall provide at least one                      full meal daily.                                            ____________________            9.  The   applicable   regulations   regarding   disciplinary            proceedings authorize  the  following sanctions  for  "major"            matters:                      (a)  Isolation, for a specified period of                      time  not  to  exceed  15  days  for  one                      offense, and no more than 30 days for all                      violations arising out of one incident.                      (b)  Recommended good time forfeiture.                      (c)  All minor sanctions.                      (d)  Sentence     to     a     Department                      Disciplinary  Unit  for   a  period   not                      exceeding 10 years.   An inmate  shall be                      credited  for time  served  on a  monthly                      basis  except  when  an  inmate  fails to                      attend  his  monthly review  or  is found                      guilty of a disciplinary offense.            103 CMR 430.25(3) (4/10/92).                                         -11-            McGuinness' contention is  that a  sentence to the  DDU is  a            sentence to an isolation unit.                 The statute does not define an isolation unit beyond one            which  must provide "light, ventilation and adequate sanitary            facilities,  may contain  a minimum  of furniture,  and shall            provide at least  one full meal  daily."   Mass. Gen. L.  ch.            127,   40.   The prison regulations do  not further define an            isolation unit.                 The record,  however, evidences that the two are not the            same.  The  disciplinary proceeding regulations,  themselves,            treat  the two  as distinct.    The authorized  sanctions for            commission of a disciplinary  offense designated as a "major"            matter include isolation and/or  a sentence to the DDU.   See                                                                      ___                                         -12-            supra note 9.10   According to defendant Michael  T. Maloney,            _____            Deputy Commissioner of the Massachusetts DOC:                           The conditions in the DDU are not as                      severe  as  those  that  prevail   in  an                      "isolation  unit"  in  the  Massachusetts                      Department of Correction.                           An  inmate  in  isolation  is  never                      allowed  a  television  or  radio.    For                      fifteen days at a time, he is deprived of                      all out-of-cell activity and  deprived of                      all  outside contact or stimulus with the                      exception of a Bible or other holy book.                           By   contrast,   DDU   inmates   can                      communicate with other  inmates one  hour                      per day, five hours per week during their                      exercise periods.  Pending good behavior,                      they can have telephone calls, visits and                      a television and radio.            SRA at pp. 124-25; see also SRA at p. 37.                               ________                 McGuinness counters by arguing  that, at the very least,            the conditions imposed for  the first 30 days  of a DDU  term            violate Mass. Gen. L. ch. 127,   40, which limits confinement                                            ____________________            10.  Those regulations further provide:                           The  Superintendent shall  designate                      such  person  or  persons  as   he  deems                      appropriate  to  review  the   status  of                      inmates housed  in isolation on  a weekly                      basis.   No  inmate shall be  retained in                      isolation continuously for  more than  15                      days for any one violation.  No more than                      30 days isolation shall be imposed  on an                      inmate  for all violations arising out of                      the   same  or   substantially  connected                      incident(s),      unless     specifically                      authorized  by  the  Commissioner.     No                      inmate  shall,  at  any  given  time,  be                      facing more  than 30 days of closed solid                      door isolation  time, unless specifically                      authorized by the Commissioner.            103 CMR 430.22(2) (4/10/92).                                         -13-            to  an  isolation   unit  to  "fifteen   days  for  any   one            offence."11   According  to the  DDU Orientation  Manual, SRA            at pp. 28-40, for  the first 30 days in the DDU, an inmate is            not allowed  a radio,  visitors,  or access  to a  telephone.            These privileges may be earned  after an inmate has completed            30 days free of disciplinary sanctions.  SRA at p. 33.  After            60 consecutive days of "disciplinary report free behavior," a            DDU inmate is permitted  a television and additional visiting            and  telephone  periods.   SRA at.  33-34.   If,  however, an            inmate   engages   in  conduct   resulting   in  disciplinary                                            ____________________            11.  Caselaw tells us that                      [b]y  order of the [DOC] Commissioner, no                      more than thirty days of isolation may be                      imposed as a result of a single  incident                      regardless of how many  separate offenses                      were  involved.   [We note,  for example,                      that,  with  respect  to  the  "flushing"                      incident, McGuinness was found  guilty of                      three  separate  prison  offenses.    See                                                            ___                      supra  note 2.]    Also by  order of  the                      Commissioner, at no time shall any inmate                      be facing accumulated isolation sanctions                      of  more  than  thirty  days   even  when                      numerous infractions have been committed.                      If  two  fifteen-day isolation  sanctions                      are  to be served,  the inmate is removed                      from  isolation   for  twenty-four  hours                      between  the two  periods.   During  this                      twenty-four-hour break the solid  door is                      left  open and the inmate is accorded the                      privileges enjoyed by inmates not serving                      isolation  time,   including  visits  and                      exercise.            Libby  v.  Commissioner of  Correction,  385  Mass. 421,  425            _____      ___________________________            (1982).                                         -14-            sanctions, he loses  privileges and a  new 30 day  adjustment            period is begun.  SRA at p. 33.                 Although these conditions may  be "isolating," we do not            think the record  supports the conclusion  that the first  30            days  of a DDU confinement is a confinement to an "isolation"            unit in violation  of Mass.  Gen. L. ch.  127,   40.   A  DDU            inmate,   even  during  the  initial   30  days  of  his  DDU            confinement, has a one hour per day, five days per week, out-            of-cell exercise period during  which he can communicate with            other inmates.  SRA at p. 37; pp. 124-25.   In contrast to an            inmate in  an  isolation unit,  who  is deprived  of  reading            material except for a Bible or other holy book,  a DDU inmate            is  permitted  four  personal  or  library  paperback  books,            newspapers or magazines in any combination.  Two books may be            borrowed from  the library cart at  any one time.   SRA at p.            37.   A DDU  inmate is permitted  access to the  "DDU [Legal]            Research  Area," whereas  an  inmate in  isolation "will  not            normally  be allowed Research Area access."  SRA at p. 38-40.            The district court did  not err in granting  summary judgment            to the defendants on McGuinness' claim that a sentence to the            DDU is a sentence to an isolation unit.                                         III.                 The  order  of  the  district  court   granting  summary            judgment in favor of the defendants is affirmed.                                                   _________                                         -15-
