Unpublished Disposition, 857 F.2d 1477 (9th Cir. 1986)

MEMORANDUM^** 

Michael G. Christianson (appellant), formerly a Washington state prisoner, appeals pro se from the district court's order granting summary judgment in favor of the Superintendent of Washington state prisons and three correctional officers (appellees). We affirm.

On May 20, 1983, appellant filed a civil rights action, pursuant to 42 U.S.C. § 1983, in the Eastern District of Washington alleging that three prison correctional officers subjected him to a strip search, verbally abused him, tightened his handcuffs unnecessarily, searched his cell and removed legal documents form his cell during the search. The district court granted appellant's motion to proceed in forma pauperis. On September 22, 1983, the district court denied appellant's motion for summary judgment. On January 6, 1984, the district court denied appellant's motion for injunctive relief. On April 30, 1984, the district court denied appellant's request for appointment of counsel. On July 14, 1986, the district court granted appellees' motion for summary judgment, denied appellant's motion for summary judgment and dismissed the complaint with prejudice. On August 26, 1986, the district court denied appellant's motion for reconsideration.

We review a district court's grant of summary judgment de novo. Hernandez v. Johnston, 833 F.2d 1316, 1317 (9th Cir. 1987). Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 1317-18.

We affirm the district court's grant of summary judgment as to the alleged violations of appellant's fourth amendment rights flowing from the search of appellant's prison cell and the seizure of certain of his supplies and legal materials. We also affirm the district court's grant of summary judgment as to appellant's eighth amendment cruel and unusual punishment claim. Finally, we affirm the district court's grant of summary judgment on his denial of access to courts claim.

In his complaint, appellant alleged that prison guards violated his fourth amendment rights by searching his cell. A prisoner has no legitimate expectation of privacy and the fourth amendment's prohibition on unreasonable searches does not apply in prison cells. Hudson v. Palmer, 468 U.S. 517, 530 (1984). "The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions." Id. at 526. Accordingly, because appellant has no constitutionally-protected interest in his prison cell, the district court properly dismissed this claim.

Appellant next contends that the district court improperly failed to consider his eighth amendment claims against the prison guards. This contention is without merit.

The district court, in granting summary judgment, did not discuss an eighth amendment claim, but instead focused on appellant's property deprivation claim. In the order denying appellant's motion for reconsideration, the district court stated: "Upon review of the complaint this court finds although plaintiff did state he was treated in a rough manner during the search and even under liberal construction required by Haines v. Kerner, 404 U.S. 519, 520 (1972), plaintiff did allege he was subjected to cruel and unusual punishment." Apparently the district court inadvertently left out the word "not" (so that its order would read "not allege he was subjected to ..."), because it ultimately denied appellant's motion for reconsideration.

We have recognized that a prisoner may have a valid Section 1983 claim against prison officials if the prisoner has suffered "cruel and unusual" punishment. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). A prison official's conduct violates the eighth amendment when it "evince [s] such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley v. Albers, 475 U.S. 312, 321, 106 S. Ct. 1078, 1085 (1986); McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986). In determining whether the conduct amounted to brutality, the court looks to the need for the application of force, the relationship between the need and the amount of force used, the extent of the injury and whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm. McRorie, 795 F.2d at 785.

Appellant alleged that during the search of his cell, the prison guards yelled verbal abuses and racial slurs, and pulled on his handcuffs which resulted in "great pain." Appellant also submitted five affidavits from witnesses supporting his allegations. Appellant did not indicate that the guards' conduct resulted in physical injury requiring any medical attention.

Although the guards' conduct may be considered hostile to appellant, it does not rise to the level of "cruel and unusual" punishment actionable under Section 1983. Cf. Gaut v. Sunn, 810 F.2d 923, 924-25 (9th Cir. 1987) (beating, kicking and choking while handcuffed is actionable under Section 1983); McRorie, 795 F.2d at 783 (guard's plunging of a riot stick into inmate's anus and causing rupture of hemorrhoids constitute cruel and unusual punishment). Moreover, appellant was apparently removed from his cell and handcuffed after he refused to cooperate with the search of his cell. Hence, the guards applied the force in a good faith effort to maintain discipline. See McRorie, 795 F.2d 785. "The infliction of pain in the curse of a prison security measure, ... does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense." Whitley v. Albers, 475 U.S. at 319. Furthermore, as to the prison guards' verbal abuses, such conduct does not constitute a violation of Section 1983. See Oltarzewski v. Ruggerio, 830 F.2d 136, 139 (9th Cir. 1987). Thus, appellant's allegations failed to show that the conduct of the guards constituted cruel and unusual punishment. Accordingly, the district court did not err in dismissing the eighth amendment claim.

Appellant next contends that the prison guards, after searching his cell, seized non-contraband personal items, including legal materials. The fourth amendment does not extend to prison cells. Hudson v. Palmer, 468 U.S. 517, 530 (1984). A prisoner is not protected by the fourth amendment from unreasonable searches, id., or from unreasonable seizures of his property. Id. at 528, n. 8. If the state destroys a prisoner's seized property, either negligently or intentionally, the prisoner is relegated to his state postdeprivation remedy, even though the destruction may have occurred without any predeprivation process, so long as the state provides a postdeprivation remedy. Id. at 533. Any denial of due process by the state in such a circumstance "is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy." Id.; Parratt v. Taylor, 451 U.S. 527 (1981).

Here, as the district court found, the state provides a postdeprivation remedy for the alleged loss of the appellant's property; he can file a tort action as provided by the Washington State Tort Claims Act, Wash.Rev.Code Sec. 4.92. Accordingly, the district court did not err in dismissing the appellant's property loss claim.

Finally, we address appellant's denial of access to courts claim. Appellant alleged that during the search of his cell, guards confiscated certain legal materials related to ongoing litigation. Specifically, appellant alleged that he was missing material he was compiling for a magistrate and two "very important" letters. Under Haines v. Kerner, 404 U.S. 519 (1972), federal courts are to give a liberal construction to pro se complaints and liberally construing appellant's complaint, he alleged that the seizure of these documents amounted to a denial of his access to the courts. In dismissing the complaint the district court ruled that appellant had not "presented any evidence demonstrating how the alleged seizure impaired his ability to seek redress in the courts." Accordingly, the court ruled that appellant had failed to controvert appellees' assertion that he had adequate access.

All prisoners are entitled to meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 817 (1977); Touissant v. McCarthy, 801 F.2d 1080, 1110 (9th Cir. 1986), cert. denied, 107 S. Ct. 2462 (1987). Prison officials may place reasonable limitations on law library access to maintain the secure and orderly operation of the institution. Bell v. Wolfish, 441 U.S. 520, 545-48 (1979).

However, Oltarzewski v. Ruggerio, 830 F.2d 136 (9th Cir. 1987), is dispositive of this issue. In Oltarzewski, applying the summary judgment standards of Fed. R. Civ. P. we concluded that the prisoner had failed to set forth specific facts to support his allegations and we held that the district court was correct in concluding that there were no reasonable restraints placed upon the prisoner's right to access to the courts. Id. at 139.

Again applying those summary judgment standards we can only come to the same conclusion. Appellant has not set forth any specific facts to show how the purported deprivation of certain "legal materials" has led to a denial of his right of access to the courts. Rather, there is nothing in the record, even assuming appellant's allegation concerning the seizure to be true, that supports a conclusion that there were any unreasonable restraints on appellant's access to the courts. Accordingly, the district court was correct in granting the appellees' motion for summary judgment.

We affirm the district court's grant of summary judgment on appellant's fourth amendment, eighth amendment and property deprivation claims, and affirm the district court's grant of summary judgment on appellant's denial of access to courts claim.

AFFIRMED.