Unpublished Disposition, 904 F.2d 710 (9th Cir. 1990)

MEMORANDUM^** 

Defendant William Roger Jones, an inmate in the Washington State Reformatory, appeals the dismissal of his complaint for frivolousness under 28 U.S.C. § 1915(d). Jones alleged that he was unconstitutionally housed with a cellmate, even though the offense for which he was imprisoned rendered him more subject to violence than the average inmate.¹  He also alleged that he was unconstitutionally threatened with segregation, but that he chose to stay in the general prison population.

According to his complaint, his eighth amendment rights were violated because he was denied a single occupancy cell pending renovation of the prison facility. Jones twice declined opportunities to avoid double-bunking. He first refused a transfer to the Washington State Penitentiary as an alternative to double-bunking and second waived segregation and elected to remain in the general prison population. Jones was double-bunked from November 1 through 16, 1988.

This court reviews de novo a determination of frivolousness under 28 U.S.C. § 1915(d). Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). The district court may dismiss a complaint filed by a litigant proceeding in forma pauperis if the action is "frivolous or malicious." 28 U.S.C. § 1915(d). Jones' complaint was not malicious; we must decide if it was frivolous. The standard for frivolousness is that the claim must lack an "arguable basis" either in law or fact. Neitzke v. Williams, --- U.S. ----, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989).

Jones' claims do not state an eighth amendment violation. As for his double-bunking claim, he neither alleges that he had been injured in the past nor that his cellmate threatened or hurt him, nor that any mental or physical harm resulted from his sixteen days of double-bunking. As was the case in 18 Unnamed "John Smith" Prisoners v. Meese, 871 F.2d 881, 883 (9th Cir. 1989), Jones has not shown any negative effects of his being double-bunked. In effect, Jones claims that, because of his offense, he has a right never to be double-bunked, even for relatively short periods. Not unlike the prisoner in Neitzke, he claims a right to be housed as and where he likes. These claims are frivolous. Neitzke, 109 S. Ct. at 1833.

Jones' claim that his waiver was extracted under threat of segregation is also frivolous. Segregation alone does not state an eighth amendment claim. Cf. Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) (additional circumstances presenting claim). The inconvenience and discomfort caused by segregation do not rise to the level of an eighth amendment violation. Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981). In fact, in this case, if Jones were truly concerned about other prisoners, segregation was far from a threat; it was a positive benefit. Because Jones' claims are frivolous, the district court properly dismissed his complaint.

AFFIRMED.