Unpublished Disposition, 937 F.2d 613 (9th Cir. 1991)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 613 (9th Cir. 1991)

Larry SMITH, Plaintiff-Appellant,v.Daniel J. MCCARTHY, Director, California Department ofCorrections, Daniel Vasquez, Warden, San Quentin,K.O. Spoon, San Quentin, Defendants-Appellees.

No. 89-15540.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


MEMORANDUM** 

Larry Smith, a California state prisoner, appeals pro se the district court's summary judgment in favor of the government in this 42 U.S.C. § 1983 action.1  We review de novo, Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), and affirm in part and reverse in part.

* Smith contends that he was arbitrarily and without justification removed from the general prison both in 1981 and in 1982, and placed in administrative segregation. This contention lacks merit.

[W]hen prison officials initially determine whether a prisoner is to be segregated for administrative reasons due process requires the following procedures: Prison officials must hold an informal nonadversary hearing within a reasonable time after the prisoner is segregated. The prison officials must inform the prisoner of the charges against the prisoner or their reasons for considering segregation. Prison officials must allow the prisoner to present his views.

Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

Here, Smith does not allege that he was denied an opportunity to be heard. Instead, Smith argues that prison officials set him up and "slandered" him in order to keep him confined in administrative segregation. Nevertheless, he has failed to present any evidence to support this claim. Furthermore, the record indicates that Smith was afforded the due process guarantees set forth in Toussaint. Thus, because Smith failed to present a genuine issue of material fact that prison officials arbitrarily placed him in administrative segregation, the district court properly dismissed the claim.

II

Smith's contention that he suffered retaliatory action due to the exercise of first amendment rights also fails. In an unpublished order filed October 31, 1988, the district court considered and addressed this issue. We affirm the dismissal based on the analysis set forth in the district court's well-reasoned order.

III

Smith contends that the district court erred in granting summary judgment in favor of the government on his claims that the defendants (1) were deliberately indifferent to his safety, (2) were deliberately indifferent to his serious medical needs, (3) used excessive force in quelling a prison disturbance, and (4) improperly denied him contact visitation rights while he was in administrative segregation. In an unpublished order filed May 24, 1988, the district court considered and addressed these issues. We affirm the dismissal based on the analysis set forth in the district court's well-reasoned order.

IV

Smith contends that the district court erred in finding that he did not present a genuine issue of material fact regarding his claim of racial discrimination by the defendants. This contention lacks merit.

Proof of racially discriminatory intent or purpose is required to show a violation of the equal protection clause. Washington v. Davis, 426 U.S. 229, 240 (1976). Discriminatory intent may be proved by direct and circumstantial evidence. Lowe v. City of Monrovia, 775 F.2d 998, 1011 (9th Cir. 1985), amended on other grounds, 784 F.2d 1407 (9th Cir. 1986).

Here, Smith failed to present any evidence to support his claim that the defendants treat black inmates different than white inmates. Accordingly, the district court properly granted summary judgment in favor of the government.

V

Smith alleges that the defendants infringed upon his first amendment right to practice religion by failing to provide food supplements. This contention lacks merit.

"Inmates have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion." McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987).

Here, the record indicates that Smith was provided with food sufficient to maintain his good health and satisfy the dietary laws of his religion. Accordingly, the district court properly dismissed the claim.

VI

Smith's contention that he was denied access to the prison law library also lacks merit.

"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." Bounds v. Smith, 430 U.S. 817, 828 (1977).

After filing his complaint, Smith filed a motion for a temporary restraining order claiming that he was denied access to the prison law library. Smith also requested leave to amend his complaint to include a claim regarding access to the prison law library. After ordering additional briefing on the issue from both parties, the district court denied Smith's motion for a temporary restraining order and request for leave to amend his complaint.

A review of the record indicates that Smith had regular access to the law library and has been designated a preferred legal user. Accordingly, the district court properly denied the claim.

VII

Smith's contention that the district court erred in denying his motion for court-appointed counsel also fails. A motion for appointment of counsel is within the broad discretion of the district court and is granted only in exceptional circumstances. Wilborn v. Escaldaron, 789 F.2d 1328, 1331 (9th Cir. 1986). "A finding of exceptional circumstances requires an evaluation of both 'the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.' " Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Smith has not shown that the complexity of the issues involved was sufficient to require appointment of counsel. Therefore, the district court did not abuse its discretion in denying Smith's motion for appointment of counsel. See Wilborn, 789 F.2d at 1331.

VIII

Smith contends that the district court erred in dismissing his claim that the defendants deprived him of adequate shelter. This contention has merit.

"Prison officials must provide all prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982). To deprive prisoners in isolation, segregation, or protective custody of any of these violates the eighth amendment if prison officials act with deliberate indifference. Id.; Wilson v. Seiter, 59 U.S.L.W. 4671, 4673 (U.S. June 17, 1991) (establishing deliberate indifference standard).

Summary judgment is appropriate when the moving party shows through the pleadings, depositions, affidavits, or other evidence that there is no genuine issue of material fact in dispute. Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). If the moving party satisfies his initial burden of demonstrating the absence of a genuine issue of fact, the burden shifts to the opposing party to establish the existence of a genuine issue of material fact. Id.

Here, Smith alleges that he was placed in a segregation cell "wherein human feces were smeared along the walls, floor and bars. The cell lacked running water, electricity and supplies with which to clean it. The appellant was made to live in that state for five (5) days, including the absence of bedding."

In its motion for summary judgment, the government produced evidence that the toilet in the cell was repaired one day before Smith was housed there, and that "there did not seem to be any electrical problems in this cell." The government produced no evidence regarding the conditions of Smith's cell during the time he was housed there. Because the government failed to satisfy its burden of proving the absence of a genuine issue of material fact regarding the condition of Smith's cell, summary judgment on this issue was improper. See Ruffin, 607 F.2d at 1280.

IX

Smith contends that the district court erred in entering summary judgment sua sponte on his claim that he was denied outdoor exercise while in administrative segregation. This contention has merit.

"The eighth amendment standard for conditions in isolation, segregation and protective custody cells are no different from standards applying for the general population." Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982). The denial of all outdoor exercise may constitute cruel and unusual punishment absent unusual circumstances. Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979).

Here, Smith alleges that for the periods September 26, 1981 to March 11, 1982, March 13, 1982 to April 30, 1982, and November 30, 1983 to January 1984 he was denied the opportunity to exercise while confined in administrative segregation. In its motion for summary judgment, and in its supplemental briefs, the government produces no evidence to refute this claim. Because a genuine issue of material fact exists regarding Smith's claim that he was denied exercise while confined in administrative segregation, summary judgment on this issue was improper. Ruffin, 607 F.2d at 1280.2 

X

On appeal, Smith contends the district court judge was biased against him. A party must show extrajudicial bias or prejudice when seeking disqualification of a district court judge. Thommassen v. United States, 835 F.2d 727, 732 (9th Cir. 1987). Smith presents no facts to support this contention, and argues only that the district court judge was biased because he dismissed the action.

AFFIRMED in part, REVERSED in part, and REMANDED.3 

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3

 1

Smith raised ten claims in the district court. In an order filed May 24, 1988, the district court granted summary judgment on six claims and ordered additional briefing on the remaining four claims. On October 31, 1988, the district court granted summary judgment on three of the claims and ordered additional briefing on the remaining claim. The district court granted summary judgment on the remaining claim on April 6, 1989. Smith filed a timely notice of appeal from 'the order filed on or about April 7, 1989.' On appeal, the defendants argue that Smith's "specification of only the summary judgment order of April 7, 1989 in his notice of appeal is a jurisdictional bar to appeal from the entry of summary judgment for appellees on appellant's other claims." This argument lacks merit. A notice of appeal need not specify all orders appealed from as long as the appellee has notice of the issues on appeal and an opportunity to brief the issues. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1422 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). Here, the defendants had notice of all of the issues on appeal and briefed each issue

 2

On February 17, 1989 the district court filed an order setting the case for jury trial. The district court also ordered Smith to provide a statement of facts, under penalty of perjury, in support of his claim, and warned Smith that failure to comply with the order would result in summary judgment being granted for the government sua sponte. Smith did not file the requested information. On April 6, 1989, the district court sua sponte granted summary judgment, finding that "the evidence is insufficient to proceed to trial, that plaintiff has been given more than sufficient opportunity to produce any relevant evidence and declarations, and ample warning of the consequences should he not." In his opening brief, Smith claims that he did not file the information requested in the district court's order because, based on a notice for a pretrial conference filed by the U.S. Magistrate on March 9, 1989, he assumed that his case was proceeding to trial. In any event, we hold that the government's failure to satisfy its initial burden of demonstrating the absence of a genuine issue of fact precluded summary judgment on Smith's exercise claim

Furthermore, we do not address the government's defense of qualified immunity on this issue because it was not considered by the district court. See United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985).

 3

Because the Supreme Court just recently held that prisoners challenging the conditions of their confinement must show that prison officials acted with deliberate indifference, on remand Smith should be allowed an opportunity to supplement his complaint and his affidavits. See Wilson 59 U.S.L.W. at 4673