                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-
