Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Charles F. Bush appeals pro se the district court's entry of summary judgment dismissing his section 1983 claim against appellees. We concur in the lower court's rejection of appellant's section 1983 claim that the conditions of his investigative detention violated the Eighth Amendment. We also find that the court did not abuse its discretion in denying Bush leave to amend his complaint to state a due process claim, as appellant failed to present evidence establishing the existence of each element of a due process violation on which he would bear the burden of proof at trial.¹  See Celotex v. Catrett, 477 U.S. 317, 322 (1986). We reverse, however, the award of attorney's fees against appellant since his complaint was not without basis in fact and in law.

FACTUAL AND PROCEDURAL BACKGROUND

On July 22, 1987, appellant was placed in Arizona state prison pending investigation of his role in an assault on another inmate. On August 3, 1987, the prison completed its investigation of the incident and, two days later, Bush received a notice charging him with the assault. The prison subsequently obtained a number of continuances which ultimately delayed the hearing on the charges until "21 days following the completion of criminal proceedings." Appellant was unable to confirm the existence of any criminal proceedings and, as of the filing of his appellate brief on June 30, 1988, had received no notice of disposition of the charges.

Directly following the assault, appellant was confined at the Conchise Detention Unit in Douglas, Arizona. While transfer to another facility was recommended and approved in September 1987, such transfer was delayed until October 27, 1987, allegedly pending availability of bed space at the Florence facility. In the meantime, appellant endured substandard conditions in the detention unit, which included double celling in 80-square-foot cell, confinement 23 hours daily, limited furniture, no in-cell hot water, limited toilet paper, limited laundry service, no barber service, limited ventilation, and no in-cell electrical outlets.

On September 4, 1987, plaintiff brought a section 1983 action alleging that the procedures and conditions described above violated his Eighth Amendment and due process rights. Appellees moved to dismiss under Fed. R. Civ. P. 12(b) (6) or alternatively fur summary judgment. The district court accordingly entered summary judgment, finding that the complaint failed to state a valid Eighth Amendment or due process claim. Appellant was not given the opportunity to amend his complaint. On March 21, 1988, he filed a notice of appeal.

DISCUSSION

We review a grant of summary judgment de novo, viewing the evidence and the inferences therefrom in the manner most favorable to the party against whom summary judgment was entered. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984). Because appellant is proceeding in pro per, the court must liberally construe his pleadings. Id. To avoid summary judgment, however, appellant may not rely on the allegations in his pleadings, but must present some "significant probative evidence tending to support the complaint." Id.

We review the grant of attorney's fees for abuse of discretion. Soffer v. City of Costa Mesa, 798 F.2d 361, 363 (9th Cir. 1986).

A prison meets its Eighth Amendment obligation "if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (citations omitted). No violation exists if each condition satisfies the amendment. Id. at 1246-47.

There is no evidence, in the instant case, that the prison failed to provide for these basic needs. The conditions complained of do not, moreover, approach those held unconstitutional by the Fifth Circuit in Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), e.g. confinement in grossly unsanitary, physically unsafe conditions; solitary confinement of named inmates in a dark hole without hygienic materials, bedding, adequate food or heat; punishment through administration of milk of magnesia. Thus, the district court properly determined that appellant's Eighth Amendment claim is without merit.

Prisons may exercise broad discretion in transferring inmates, provided administrative segregation is not used as a pretext. Hewitt v. Helms, 459 U.S. 460, 477 n. 9 (1983). Here, the fact that appellant's confinement was reviewed two weeks and eight weeks after initial detention, and his transfer effected within six weeks of its approval, are sufficient to demonstrate that detention was not a pretext. Accordingly, the delay in transfer did not violate appellant's due process rights.

Faced with a deficient complaint, a district court must give a pro se plaintiff the opportunity "to overcome deficiencies unless it is clear that they cannot be overcome by amendment." Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). While, in the instant case, appellant was subjected to prolonged delay in obtaining a hearing on the assault charges, he has not presented evidence sufficient to support a claim of denial of due process. Thus, it is unnecessary to remand this case to allow leave to amend the complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If, however, Bush's due process claim ripens at any time in the future, he could of course raise the claim in the district court at that time.

V. Attorney's FeesA trial court may, in its discretion, award attorney's fees to a prevailing defendant "where the plaintiff's action, even though not brought in subjective bad faith, is 'frivolous, unreasonable or without foundation.' " Soffer v. City of Costa Mesa, 798 F.2d 361, 364 (9th Cir. 1986) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). In civil rights actions brought by pro se prisoners under section 1915(d), district courts must assess frivolity by determining whether "there is a factual or legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded." Franklin v. Murphy, 745 F.2d 1221, 1227 (9th Cir. 1984).

Because we believe that there was a factual and legal basis for appellant's claims, we find that the district court abused its discretion in awarding attorney's fees. The fee award is therefore vacated. In all other respects, the decision below is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.