Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1095 (9th Cir. 1989)

Louis Butler O'NEAL, Plaintiff-Appellant,v.George NIXON, Librarian, Folsom State Prison; R.G. Borg,Warden, Folsom State Prison, Defendants-Appellees.

No. 88-15407.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 25, 1989.* Decided Nov. 17, 1989.

Before ALARCON, O'SCANNLAIN and LEAVY, Circuit Judges.


MEMORANDUM** 

Plaintiff Louis Butler O'Neal was the last inmate to check out one of the volumes of the Folsom State Prison legal library. When the librarian, George Nixon, discovered that a page from the volume was missing, he conducted a search of O'Neal's cell. Nixon allegedly tore, scattered, and read some of O'Neal's criminal and civil litigation files. O'Neal sued Nixon under 42 U.S.C. § 1983 (1982), alleging (1) an unreasonable search in violation of his fourth amendment rights; (2) a deprivation of his destroyed files without due process of law under the fourteenth amendment; and (3) a violation of his sixth amendment rights of access to the courts. A magistrate recommended that summary judgment be granted in favor of Nixon. The district court allowed O'Neal twenty-one additional days to file an affidavit stating with particularity the legal files that Nixon allegedly destroyed. O'Neal failed to supply the affidavit and the district court entered summary judgment in favor of Nixon. We affirm.

We review grants of summary judgment de novo. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 764 (9th Cir. 1986). Summary judgment is appropriate if, viewing the evidence in the light most favorable to the non-moving party, the court finds that no genuine issue as to any material fact remains for trial and that the moving party is entitled to judgment as a matter of law. Id. See Fed. R. Civ. P. 56(c).

The legality of a search is determined by reference to the legitimate expectation of privacy the complainant may have in the place searched. Hudson v. Palmer, 468 U.S. 517, 525 (1984). The United States Supreme Court has held that, due to the penological interest involved, a prisoner has no reasonable expectation of privacy in his cell. Id. at 530. Consequently, O'Neal's claim that Nixon's search violated his fourth amendment rights fails as a matter of law.

Hudson also held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Id. at 533. Cal.Gov.Code Sec. 900 et seq. (West 1980) provides for tort remedies against public entities and employees. Since O'Neal had state post-deprivation remedies available against Nixon for Nixon's alleged destruction of his property, O'Neal was not deprived of property without due process of law as a matter of law.

O'Neal also alleges that Nixon's destruction and reading of his litigation files denied O'Neal access to the courts. O'Neal, however, has failed to state which particular documents were destroyed or read, and how these acts affected his litigation. It is well-settled that to survive summary judgment, a party cannot rely on bare allegations alone, but must produce "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e), see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Although the district court made O'Neal aware of the need to produce specific information regarding the destroyed files, and granted him an additional twenty-one days to submit an affidavit to that effect, O'Neal failed to produce any specific information. Thus, O'Neal's claim that he was deprived of access to the courts cannot survive summary judgment.

O'Neal's remaining claims are without merit. The record unequivocally reflects that the district court allowed O'Neal twenty-one days to supplement his opposition to Nixon's summary judgment motion. Clerk's Record 34. We do not consider O'Neal's claims regarding the prison's livability conditions, access to the mails, etc., because the claims were not raised before the district court.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3