
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          February 23, 1994     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                                           ___                                         -2-                                      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                                            ____________________            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                                         -4-                                         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.                                         -5-            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                                         -6-            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                                         -7-            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.            ___________________    _________                                         -10-            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.            _____                                         -11-
