Chris O'neill, Plaintiff-counter-defendant-appellant, v. Harland Embree, Defendant-counter-plaintiff-appellee, 120 F.3d 269 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 120 F.3d 269 (9th Cir. 1997)

Submitted July 14, 1997**July 17, 1997


Before: HUG, Chief Judge, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM* 

Chris O'Neill, a Nevada state prisoner, appeals pro se the district court's (1) summary judgment for defendants on his Eighth Amendment and Fourteenth Amendment access-to-the-courts claims and (2) dismissal for failure to state a claim of his Fourteenth Amendment due process claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We are required to dismiss "an appeal sua sponte at any time if the case ... fails to state a claim upon which relief may be granted." See Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996) (per curiam).

Because " [t]he Constitution 'does not mandate comfortable prisons [,]' " we conclude that O'Neill's allegations that the conditions of his confinement violated the Eighth Amendment fail to state a claim. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 348 (1981)).

Because O'Neill failed to allege an "actual injury," we conclude that he fails to state a claim that his right of access to the courts was violated. See Lewis v. Casey, 116 S. Ct. 2174, 2178-80 (1996); Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994).

Finally, because O'Neill's allegations are insufficient to establish that his placement in detention imposed an atypical and significant deprivation, we conclude that he failed to state a violation of the Due Process Clause of the Fourteenth Amendment. See Sandin v. Conner, 115 S. Ct. 2293, 2300-01 (1995); Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996).

DISMISSED.

 **

The panel unanimously finds this case suitable for decision without oral argument. See 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