Unpublished Disposition, 862 F.2d 318 (9th Cir. 1987)

MEMORANDUM^* 

BACKGROUND

Leydell Baker, an inmate at the McNeil Island Corrections Center Annex, appeals pro se the district court's grant of summary judgment in favor of Walter Kautkzy, the Director of the Department of Corrections. Baker sued Kautkzy in district court under 42 U.S.C. § 1983, claiming that Kautkzy caused him to suffer a number of constitutional deprivations. Specifically, Baker alleged that a Department of Corrections policy requiring life term inmates to sign a mutual agreement program ("MAP") as a prerequisite for work release, parole, and other benefits, deprived him of due process and equal protection under the fourteenth amendment to the United States Constitution. In addition, Baker alleged that his imprisonment in an overcrowded dormitory at McNeil Island from June 6, 1984 through March 17, 1985 constituted cruel and unusual punishment in violation of the fifth and eighth amendments to the United States Constitution. Finally, Baker alleged that the law library at the McNeil Island Annex was inadequate and deprived him of his constitutional right of access to the courts.

On April 1, 1985, the district court granted Kautkzy's motion for partial summary judgment on the MAP issue. The court found that as a matter of law, Baker had no protected liberty interest in work release, parole, or any other benefit that was conditioned on the signing of a MAP agreement. In addition, the court found that the purpose of the MAP prerequisite, to prepare an inmate for successful reentry into the community, was rationally related to the program's operation. Thus, the court found that Baker's fourteenth amendment due process and equal protection rights were not violated. On March 23, 1987, the court granted summary judgment for Kautkzy on the remaining issues. We affirm.

DISCUSSION

We review the district court's grant of summary judgment de novo. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988). In his brief, Baker outlines eight broad issues for our review, of which four can be dealt with summarily. First, Baker alleged that the magistrate incorrectly placed the burden of showing that Kautkzy was not entitled to the summary judgment recommended by the magistrate in his March 12, 1985 order. The magistrate's report and recommendation, however, refutes Baker's claim. Both parties had moved for summary judgment and the magistrate correctly noted that the burden of showing entitlement in each case was on the moving party. Second, Baker alleged that the magistrate erred in granting Kautkzy "partial" summary judgment because Kautkzy had not used the term "partial" in his motion for summary judgment. This argument is hypertechnical and without merit. Third, Baker alleged that both the magistrate and the district court judge were biased and prejudiced; however, the record does not support his claims. Finally, Baker alleged that the district court improperly dismissed his first motion for summary judgment as premature. The record shows, however, that Baker's complaint was stamped as "filed" on July 27, 1984. An action commences on the date of filing; thus, the district court properly dismissed Baker's July 10, 1984 motion for summary judgment as premature under Federal Rule of Civil Procedure 56(a).

I. Does the Department's MAP Policy Deprive Baker of Due Process or Equal Protection Under the Fourteenth Amendment?

Baker contends that his due process rights were violated because the Department of Corrections refused to recommend him for parole until he signed a mutual agreement program (MAP). The MAP is a program for prisoners serving life sentences who are approaching their parole eligibility. Under the program, the inmate, his counselor, and the Department enter into an agreement that they will each take certain steps gradually to introduce the inmate to increased freedom and thus prepare him for his eventual release into the community. The Parole Board had the authority to grant Baker parole on October 20, 1984, after he had been confined for 20 consecutive years less earned good time; however, Baker was not recommended for parole by the prison superintendent because he refused to participate in the MAP. On appeal, Baker contends that the district court erred in finding that he could not assert a violation of his due process rights because he had no constitutionally protected liberty interest in parole.

Whether a state creates a protected liberty interest in parole must be determined on a case-by-case basis. Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 844 (9th Cir. 1985). In general, the possibility of parole creates only a hope that is not protected by due process; however, a state may create an "expectancy of release," which is a protected liberty interest, by using mandatory language in its parole statutes. See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979). In Greenholtz, the Supreme Court found that Nebraska created a protected interest in parole by mandating that parole "shall" be granted, "unless" one of four specially designated exceptions applied. Id. at 11-12. See also Board of Pardons v. Allen, --- U.S. ----, 107 S. Ct. 2415 (1987) (the question of whether a liberty interest exists in parole must be decided by examining the pertinent state statutes for mandatory language that creates an expectation of parole); Bowles v. Tennant, 613 F.2d 776, 778 (9th Cir. 1980) (federal parole statute).

The Washington statutes that govern Baker's parole are written in discretionary language and cannot be said to create an expectation of parole as a right. R.C.W. Sec. 9.95.110 governs the parole of prisoners and provides that " [t]he board of prison terms and paroles may permit a convicted person to leave the buildings ... on parole, after such convicted person has served the period of confinement fixed for him by the board, less time credits for good behavior and diligence in work...." Wash.Rev.Code Sec. 9.95.110 (emphasis added). Furthermore, R.C.W. Sec. 9.95.100 removes any expectation a prisoner may have of automatic parole by providing that " [t]he board shall not, however, until his maximum term expires, release a prisoner, unless in its opinion his rehabilitation has been complete and he is a fit subject for release." Wash.Rev.Code Sec. 9.95.100. Thus, Washington's parole statutes do not create a constitutionally protected liberty interest in an inmate's parole status because they do not establish a mandatory standard comparable to the "shall/unless" release standard found in Greenholtz. See also In re Ayers, 105 Wash. 2d 161, 713 P.2d 88, 89 (1986) (Washington Supreme Court held that there is no protected liberty interest in a prisoner's parole release at the expiration of the board-set minimum term).¹ 

Baker also alleges that the Department's MAP policy violates his fourteenth amendment equal protection rights. The district court correctly determined that Baker's equal protection rights were not violated because the MAP did not disadvantage a suspect classification and the policy of the MAP was rationally related to a legitimate state objective.

When a state policy does not adversely affect a suspect class or impinge upon a fundamental right, all that is constitutionally required of the state's program is that it be rationally related to a legitimate state objective. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); Baumann, 754 F.2d at 846. The state of Washington has a legitimate interest in successfully introducing prison inmates back into the community. The Department's MAP program is rationally related to this end; thus, Baker's equal protection rights were not violated.² 

II. Did Baker's Imprisonment at the MICC Annex Result in the Violation of Any of his Constitutional Rights?

Baker contends that his constitutional rights under the eighth amendment were violated when he was detained in an overcrowded dormitory at the McNeil Island Correctional Center Annex. In addition, Baker contends that the law library at the Annex was inadequate and deprived him of his constitutional right of access to the courts. We affirm the district court's grant of summary judgment on these issues because Baker has not shown that the conditions at the Annex violated his eighth amendment rights or his right of access to the courts.

Baker contends that the Annex was overcrowded, a fire hazard, and had only four showers to serve 150 inmates. Restrictive and even harsh conditions of confinement do not necessarily constitute cruel and unusual punishment because such conditions are "part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The "unnecessary and wanton" infliction of pain can constitute an eighth amendment violation, however. "It is obduracy and wantonness, not inadvertence or error" that characterizes conduct prohibited by the eighth amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986).

In this case, the record shows that all of the inmates did have access to the showers. See Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984) (some regular access to a personal cleaning facility is required under the eighth amendment; thus, inmates must have access to a shower at least three times per week), aff'd in part, 801 F.2d 1080 (9th Cir. 1986). In addition, the Associate Superintendent at McNeil Island stated in an affidavit that the number of showers available was adequate, due to the varying work schedules of the inmates, and that the living conditions at the Annex were adequate and acceptable for the population housed there. Moreover, Baker has not shown that any lack of shower facilities or unsanitary conditions at the Annex were due to the wanton behavior of prison officials. Thus, the district court correctly granted Kautkzy's motion for summary judgment on this issue because Baker made no evidentiary showing of an eighth amendment violation.

Finally, Baker contends that the law library at the Annex was inadequate and deprived him of his right of access to the courts. The record, however, does not support this claim. While housed at the Annex, Baker had legal assistance provided to him through Evergreen Legal Services. This assistance, provided at the government's expense, is a constitutionally permissible means of providing access to the courts. United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir. 1982), cert. denied, 464 U.S. 867 (1983). Because Baker never introduced any facts regarding how his access to the courts was denied, the district court properly dismissed this claim as a matter of law.

CONCLUSION

For the above reasons, the district court's grant of summary judgment in favor of Kautkzy is AFFIRMED.