Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)

MEMORANDUM^** 

James Piatt, an Arizona state prisoner, appeals pro se the district court's grant of summary judgment in favor of prison officials in his 42 U.S.C. §§ 1983 and 1986 civil rights action. We affirm.

FACTS AND PROCEEDINGS

On June 18, 1986, Piatt filed this civil rights action alleging violations of his 1st, 4th, 5th, 6th, 8th, and 14th amendment rights. Along with his complaint, Piatt also filed an application for writs of habeas corpus ad testificandum and a motion for preliminary injunction.

In his complaint, Piatt stated that on May 27, 1986, he was transported to Texas for testimony in another matter. In preparing for his departure, prison officials discovered, and removed, 34 boxes of personal property and legal materials from Piatt's 55 square foot single cell. When Piatt returned to the prison on May 29, 1986, he was advised by prison officials that Major Terry had ordered them not to give back any of his property. The property was inventoried and condensed into 27 boxes. On June 12, 1986, all of Piatt's personal property was returned to him. Piatt alleged that he was denied access to his legal materials by Major Terry in order to harass him and in retaliation for the numerous actions which Piatt has filed with the courts.

On August 21, 1986, defendants moved to dismiss Piatt's complaint pursuant to Fed. R. Civ. P. 12(b) (6). The magistrate ordered that the motion to dismiss be treated as one for summary judgment pursuant to Fed. R. Civ. P. 56, and advised Piatt of the Rule 56 requirements. On January 6, 1987, the district court granted defendants' motion for summary judgment, denied Piatt's motion for preliminary injunction, and dismissed the action. Piatt filed a motion for rehearing, stating that the district court did not consider the complete file when ruling on the motion for summary judgment. The district court granted Piatt's motion in part, and reconsidered the matter, including all materials submitted by Piatt. On July 10, 1987, the district court granted defendants' motion for summary judgment and dismissed the action. Piatt timely appeals.

ANALYSIS

STANDARD OF REVIEW

We review grants of summary judgment de novo, Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), and will affirm if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hernandez v. Johnston, 833 F.2d 1316, 1317-18 (9th Cir. 1987); Fed. R. Civ. P. 56(c).

ACCESS TO LEGAL MATERIALS

Piatt contends that he was, and is presently being denied access to his legal materials by Arizona prison officials. This contention lacks merit.

A prisoner has no legitimate expectation of privacy and the fourth amendment's prohibition of unreasonable searches and seizures does not apply in prison cells. Hudson v. Palmer, 468 U.S. 517, 528-30 (1984); Taylor v. Knapp, No. 87-2510, slip. op. at 2690 (9th Cir. March 21, 1989). The eighth amendment, however, protects prisoners from searches conducted only for calculated harassment unrelated to prison needs. Hudson, 468 U.S. at 530; Vigliotto v. Terry, 865 F.2d 1131, 1133 (9th Cir. 1989). While an inmate has an unquestioned right to adequate legal materials and access to the courts, Bounds v. Smith, 430 U.S. 817, 828 (1977), the temporary deprivation of an inmate's legal materials does not, in all cases, rise to a constitutional deprivation. Vigliotto, 865 F.2d at 1133. We must accord the decisions of prison officials extreme deference, especially in matters of internal security. Pepperling v. Crist, 678 F.2d 787, 789 (9th Cir. 1982) (citations omitted). Actions or regulations which allegedly infringe on the constitutional rights of prison inmates are valid if they are reasonably related to legitimate penological interests. O'Lone v. Estate of Shabbazz, 107 S. Ct. 2400, 2404 (1987).

Piatt argues that his cell was searched and legal materials taken for harassment and in retaliation for pursuing numerous civil rights lawsuits. The affidavits submitted by the government state that the boxes were not removed from Piatt's cell in order to harass him, but because they constituted a fire hazard. In addition, a legal analyst employed at the Arizona Department of Corrections offered Piatt the opportunity to select any five boxes of legal materials to take to his cell; Piatt declined this offer. Piatt was also given the opportunity to assist in going through the boxes, and again he declined. The legal analyst went through the materials himself to determine what Piatt needed for his pending litigation. These materials were put into three boxes which prison officials attempted to return to Piatt in July, 1986. Piatt refused to accept any of the boxes unless he could have all 34 boxes back. The three boxes of legal materials were then left in Piatt's cell by the prison officials.

Piatt admits that three boxes of legal materials were returned to his cell by the prison officials. Piatt claims, however, that because the inmate regulations place no limit on the amount of legal materials an inmate can have, he is entitled to have all 34 boxes returned to his cell. The authorized inmate personal property regulation does not contain mandatory language necessary to create a protected constitutional interest. Hewitt v. Helms, 459 U.S. 460, 472 (1983).

Piatt fails to set forth specific facts to rebut the defendants' affidavits that the search and removal of the boxes was done for safety reasons; he claims only that other inmates have as much property in their cells that is not taken away from them. The fact that other inmates' cells have not been searched and had property removed, however, does not raise a genuine issue of fact regarding the motivation for removing 34 boxes of material from Piatt's single cell. It merely indicates that the prison does not uniformly search every prisoner's cell and wholly random searches are essential to the effective security of penal institutions. Hudson, 468 U.S. at 529. The temporary deprivation of Piatt's legal materials does not rise to constitutional proportion. The affidavits show that the boxes were removed in order to comply with the fire marshall's requirements. The prison officials' substantial interest in prison security justifies the temporary taking away of Piatt's property. See Pepperling, 678 F.2d at 789-90.

Piatt also contends for the first time on appeal, that the district court erred in relying on the defendants' affidavits as a basis for granting summary judgment. He claims the defendants described events as to which they had no personal knowledge, in violation of Fed. R. Civ. P. 56(e). Independent of the portions to which appellant objects, the affidavits were sufficient to support entry of summary judgment.

ATTORNEYS' FEES

The government requests attorneys' fees on appeal, pursuant to 42 U.S.C. § 1988, for defending a frivolous appeal. An appeal is frivolous "when the result of the appeal is obvious and the arguments of error are wholly without merit." Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 212 (9th Cir. 1987). Although Piatt's contentions on appeal lack merit, they are not frivolous and therefore, an award of attorneys' fees is denied. See Schucker v. Rockwood, 846 F.2d 1202, 1205 (9th Cir. 1988), cert. denied, 109 S. Ct. 561 (1988).

CONCLUSION

The judgment of the district court is AFFIRMED.