Unpublished Disposition, 923 F.2d 862 (9th Cir. 1991)

MEMORANDUM^** 

Charles Hilliard, a federal prisoner, sued various federal and Washington state prison officials for alleged maltreatment during Hilliard's incarceration in Washington prisons as a "federal boarder." The district court entered summary judgment for the prison officials. We affirm.

I. Hilliard's Asserted Actionable Federal Rights.

The viability of any of Hilliard's claims depends upon assertion of an actionable federal right. Two sources provide Hilliard with potentially actionable rights: federal statutes regulating incarceration of federal prisoners and the eighth amendment's prohibition against cruel and unusual punishment.

A. Statutory Rights on Transfer Away from a Particular Place

Hilliard alleges due process violations and deprivation of federal rights because the Bureau of Prisons transferred Hilliard away from his community of conviction and release. Hilliard can assert no right, however, to incarceration in a particular place. Congress has expressly authorized the Bureau of Prisons to "designate the place of the prisoner's imprisonment." 18 U.S.C. § 3621(b); see also Meachum v. Fano, 427 U.S. 215, 224 (1976) (constitution does not guarantee that prisoner will be placed in a particular place). Further, Congress has expressly authorized the Bureau to designate the place of imprisonment "whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted." 18 U.S.C. § 3621(b). Congress has also expressly authorized the Attorney General to contract with states for "the purpose of providing suitable quarters for the safekeeping, care, and subsistence" of federal prisoners in state prisons. 18 U.S.C. § 4002. For lack of an actionable federal right, therefore, Hilliard's claims of wrongful transfer away from Leavenworth fail.

B. Statutory Rights on Transfer to a Particular Place

Hilliard next alleges due process violations and deprivation of his federal rights because of his transfer to state prisons operating under injunction for eighth amendment violations. A Bureau of Prisons policy forbids incarceration of federal prisoners in state institutions so enjoined. Bureau of Prisons Policy 5100.2 CN-9, unpublished. Congress has elevated that Bureau of Prison policy to the force of statute by qualifying the Bureau's discretion to designate the place of imprisonment. While the Bureau may "designate any available" prison including a state prison for incarceration of federal prisoners, by statute the designated place must meet "minimum standards of health and habitability established by the Bureau." 18 U.S.C. § 3621(b) (emphasis added).

Hilliard argues that this federal law prohibiting incarceration in enjoined state prisons establishes an actionable federal right. We have previously held that analogous statutory authority establishes no actionable federal right. In Williams v. United States, 405 F.2d 951 (9th Cir. 1969), we considered 18 U.S.C. § 4042 which requires the Bureau of Prisons to "provide suitable quarters and provide for the safekeeping, care, and subsistence" of federal prisoners. We concluded that this statute defines a duty for potential Federal Tort Claims Act liability, but it does not establish an independently actionable federal right. Id. at 954. Similarly, federal statutes governing housing of federal prisoners in state prisons define duties for potential Federal Tort Claims Act liability, but do not establish actionable federal rights under Sec. 1983. See also Ortega v. Rowe, 796 F.2d 765, 767 (5th Cir. 1986), (18 U.S.C. § 4002 provides no basis for a cause of action) cert. denied, 481 U.S. 1013 (1987).

Alternatively, even if we concluded that federal law establishes an actionable right in Hilliard's case, his subsequent transfer back to federal custody mooted any action for injunctive relief. To the extent that Hilliard claims he suffered compensable injuries as a result of wrongful incarceration in an enjoined state prison, moreover, his claims duplicate his eighth amendment claims which are actionable under Sec. 1983 or Bivens in all events.

II. Propriety of Summary Judgment on Hilliard's Eighth Amendment Claims

Hilliard alleged that the Reformatory lacked adequate ventilation, safe drinking water, adequate safety and privacy screens, and adequate fire protection. As a result of these inadequacies, he testified, Hilliard suffered lung congestion, abdominal pain, the humiliation of exposure to female guards and visitors as he showered, and fear of fire and falling. Hilliard further alleged that he suffered from conditions warranting the continuing injunction against the Penitentiary, though he did not specify inadequacies or injuries. Relying on affidavits and exhibits from state prison officials, the district court deemed Hilliard's allegations "groundless." According to the state's evidence, inspectors regularly check air, water, and fire safety. Further, the court determined that Hilliard's deposition undermined his claims. Hilliard testified that a half wall shielded showering prisoners and that only conjecture links Hilliard's symptoms with prison air and water. We agree with the district court.

A. Alleged Procedural Error on Discovery Stay

Hilliard objects to the district court's conclusions because the court's discovery stay prevented him from substantiating his claims. We conclude that any procedural error concerning discovery did not prejudice Hilliard. Because eighth amendment violations form the only basis for Hilliard's cause of action, the facts at issue concern only conditions at Washington prisons. State prison official defendants were better able to testify on those state conditions than the federal defendants shielded by the stay. Reversal and remand for discovery against the federal defendants would therefore not strengthen Hilliard's eighth amendment case.B. Disputed Issues of Fact

Hilliard next argues that the district court improperly decided disputed fact issues in defendants' favor. We conclude, however, that Hilliard failed to carry his burden in opposing summary judgment. Under Rule 56(e) of the Federal Rules, Hilliard must have "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e). Hilliard failed to specify or support his allegations against the Penitentiary beyond citing the court order against the Penitentiary. Moreover, Hilliard countered the government's evidence of inspection of air and water safety at the Reformatory only with conjecture that inadequate ventilation and unsafe water caused his alleged symptoms. The district court did not err, therefore, in accepting as true defendants' version of the facts. Hilliard failed to refute defendants' version with substantial evidence.

CONCLUSION

We agree with the district court and hold that Hilliard cannot recover damages for his brief tenure in Washington prisons.

The judgment of the district court is

AFFIRMED.