Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1986)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1416 (9th Cir. 1986)

Gary W. CHING, Plaintiff-Appellant,v.Samuel LEWIS, Director of ADOC, Captain Techi, Administratorat Perryville, Dale Grim, Administrator at Perryville, Dr.Samorotie, Perryville Prison, Warden Rooey, PerryvillePrison, Officer Marsha, Movement Officer, Administrator atPerryville, Officer Brenda, Movement Officer, Administratorat Perryville, Rick Ward, Classification Manager, ADOC, JohnKohl, Classification Director, ADOC, Warden Hallaham,Security Officer, Tucson Prison, Carson A. McWilliams, CPO,Security Officer, Tucson Prison, Ralph Loar, SecurityOfficer, Tucson Prison, John Orzel, CPO, Security Officer,Tucson Prison, Warden Dodds, and Captain Olson-ASPC-TucsonRincon Unit, Defendants-Appellees.

No. 88-2560.

United States Court of Appeals, Ninth Circuit.

Submitted April 14, 1989.* Decided Feb. 5, 1990.

Before ALAN E. NORRIS, BEEZER, and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Gary W. Ching appeals from the district court's order

granting summary judgment for defendants and dismissing his

action brought pursuant to 42 U.S.C. § 1983. We affirm

in part, reverse in part, and remand.1 

FACTS AND PROCEEDINGS BELOW

The appellant is incarcerated at the Arizona State Prison in Florence, Arizona. He was first received at the Perryville branch of the Arizona State Prison on April 14, 1986. On April 30, 1986 he requested placement in protective segregation because he was being subjected to racial harassment and threats of physical harm from other inmates. He was placed in non-disciplinary administrative segregation and subsequently transferred to Tucson on June 25, 1986. Again the appellant experienced harassment from other inmates and, on August 29, 1986, he was assaulted. From September 6, 1986 until October 3, 1986 the appellant was housed in the prison medical unit. On October 3, 1986 the appellant was placed in involuntary protective segregation.

He filed an action under 42 U.S.C. § 1983 against several prison officials claiming violations of the eighth and fourteenth amendments relating to his recreation and exercise opportunities, his visitation rights, access to the courts, and access to the prison law library while in administrative segregation. He also alleged racial discrimination. The defendants responded with a motion for summary judgment, supported by several affidavits. The motion was granted, and Ching appeals.

DISCUSSION

The appellant alleges that the inmates in administrative (protective) segregation at Perryville must reside with the inmates that are in disciplinary segregation, and as such they are not permitted to visit the prison law library or receive legal assistance from prison staff or other inmates. The appellant claims that his only access to legal materials while in Perryville was by requesting specific volumes from the prison staff to be delivered to him.

It is clear that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). In Toussaint v. McCarthy, 801 F.2d 1080, 1109-10 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987), this court found that a "paging" system similar to the one the appellant complains of gave a prisoner "no meaningful chance to explore the legal remedies that he might have," and that the state must either provide prisoners with access to a law library or legal assistance. Id. at 1110.

The defendants responded to the appellant's claim with an affidavit stating that inmates in administrative detention are allowed three two-hour library visits each week, and that the appellant "had numerous opportunities to visit the law library had he desired to do so." The appellant vehemently disputed this assertion and presented two self-styled affidavits from fellow inmates that supported his claim. The district judge observed that they were not notarized and apparently discredited them on this basis. This was error. Under 28 U.S.C. § 1746, an unsworn declaration can have the force and effect of a sworn affidavit if it is signed, dated, and carries a declaration that the statement is true under penalty of perjury. The supporting statements offered by the appellant in opposition to summary judgment substantially complied with this requirement and thus are competent evidence. They establish a material issue of fact on whether the appellant has been afforded reasonable access to the law library.

The appellant claims that because he is in protective segregation he is not allowed the same visitation privileges as the inmates in the general population. Specifically, he claims that he was allowed to visit with his parents for one hour through a glass partition, where if he had been in the general population he would have been allowed a three-hour contact visit. The district judge dismissed this claim under the principle that there is no constitutional right to contact visitation.

An inmate has no eighth amendment right to contact visitation. Toussaint, 801 F.2d at 1113. There can be no eighth amendment violation unless the claimed deprivation results in the wanton infliction of pain and is without penological justification. Rhodes v. Chapman, 452 U.S. 337, 346 (1981). There have been no allegations of wanton infliction of pain. Thus, the appellant has no eighth amendment claim for being denied contact visits with his family.

The loss of privileges associated with administrative segregation, including family contact visitation, does not violate the due process clause because there is no liberty interest in remaining in the general prison population. See Toussaint, 801 F.2d at 1092. "The transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence." Hewitt v. Helms, 459 U.S. 460, 468 (1983).

The appellant claims that for a seven-month period while he was in administrative segregation he was not permitted outdoors to exercise, instead being restricted to an inside area within the "D" wing of the prison. In Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979), this court held that the denial of regular outdoor exercise can, in some situations, constitute cruel and unusual punishment. In Spain, the most dangerous prisoners at San Quentin were assigned for indefinite periods to the maximum security "adjustment center" at the prison. Prisoners were allowed to exercise alone in the corridor in front of their cells for one hour a day, five days a week. They were never permitted outdoors. The court refrained from finding a per se violation of the eighth amendment, but nevertheless found a violation as to those inmates confined in the adjustment center for a period of years. Id.

Here, the district judge found that the appellant was allowed outdoors to exercise. The defendants' motion to dismiss included an affidavit from Dorothy Vigil, deputy warden of the Tucson facility, stating that inmates in detention units are allowed outdoors for their exercise periods, and that the appellant was afforded the same exercise opportunities as other detention inmates. The appellant's unsworn declarations from other inmates support his argument that he was not permitted outside for at least six months in 1986, but they were disregarded by the district judge, apparently because they were not notarized. This was error. Under 28 U.S.C. § 1746, an unsworn declaration can have the force and effect of a sworn affidavit if it is signed, dated, and carries a declaration that the statement is true under penalty of perjury. The supporting statements offered by the appellant in opposition to summary judgment substantially complied with this requirement and thus are competent evidence. The credibility of these unsworn declarations is not a matter properly considered on a motion for summary judgment. They were sufficient to establish a genuine issue of fact under Fed. R. Civ. P. 56(e), and the grant of summary judgment in favor of the defendants was error. The decision below is reversed.

The appellant claims the prison discriminated against him because some Oriental inmates were allowed to cell alone while he was put in a cell with another inmate. Appellant argues that because he was treated differently than other Orientals, his right to equal protection of the law has been violated.

This is not race discrimination because the appellant has only shown that there was unequal treatment within his own ethnic group. He has not shown any unequal treatment of Orientals as a group. The decision to cell appellant alone was an administrative one that does not implicate the equal protection clause. Prison officials have broad administrative and discretionary authority over institutions they manage. Hewitt v. Helms, 459 U.S. 460, 467 (1983).

The appellant argues that summary judgment should not have been granted before discovery was allowed. The appellant's discovery requests were implicitly denied by the district court when it granted summary judgment. The appellant is seeking "turnout sheets" on inmates that have been afforded outdoor exercise, presumably to prove that he was not permitted outside, and evidence of relevant prison policy regarding the visitation and exercise rights of inmates.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. Rule 56(c). Rule 56(f) provides that a court may order discovery when it appears from the affidavits that the person opposing the motion cannot state facts essential for the opposition. Failure to comply with Rule 56(f) is a proper ground for denying discovery and granting a motion for summary judgment. Barona Group of the Capitan Grande Band of Mission Indians v. American Management & Amusement, Inc., 840 F.2d 1394, 1399-1400 (9th Cir. 1987), cert. dismissed, 109 S. Ct. 7 (1988). "Under Rule 56(f), an opposing party must make clear what information is sought and how it would preclude summary judgment." Garrett v. City & County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987).

None of the appellant's proffered affidavits suggested that discovery was necessary to preclude summary judgment. The district judge's implicit denial of the discovery requests was not an abuse of discretion.

CONCLUSION

The district court's grant of summary judgment is reversed on the issues of meaningful access to the courts and outdoor exercise. In all other respects the decision below is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 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 Circuit Rule 36-3

 1

Ching's claim that he was denied access to the courts because he did not have contact visitation with his attorney was decided by this court in a separate opinion