Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.dale S. Hunnewell, Plaintiff, Appellant, v. Warden, Maine State Prison, Defendant, Appellee, 19 F.3d 7 (1st Cir. 1994)

Plaintiff-appellant Dale S. Hunnewell, a Maine inmate, appeals pro se the dismissal of his 42 U.S.C. § 1983 action against Martin Magnusson, the warden of the Maine State Prison and the Maine Correctional Institution-Warren (MCI-Warren). With one exception, we affirm the dismissal of plaintiff's claims.

BACKGROUND

Appellant filed a complaint in the district court on December 9, 1992. It alleges violations under the Eighth and Fourteenth Amendments of the United States Constitution: (1) deprivation of due process when appellant was placed in administrative segregation at Maine State Prison on October 24, 1992 and not given a hearing; (2) deprivation of the right to earn three days of work-related good time per month after his transfer to MCI-Warren on October 27, 1992; and (3) subjection to unhealthy and unsafe living conditions at MCI-Warren. Hunnewell seeks prospective injunctive relief and damages.

Appellee Magnusson filed a motion to dismiss the complaint, pursuant to Fed. R. Civ. P. 12(b) (6), for failure to state a claim upon which relief can be granted. On August 9, 1993, a magistrate judge granted the motion to dismiss.¹ 

DISCUSSION

Appellate review of a dismissal under Rule 12(b) (6) is plenary. See, e.g., Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir. 1991). The standard for assessing the adequacy of a civil rights claim is whether, accepting the factual allegations in the complaint as true, and construing these facts in the light most favorable to the plaintiff, the pleading shows any facts which could entitle the plaintiff to relief. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S. Ct. 1160, 1161-63 (1993); Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). Because appellant appears pro se, we read his complaint with an extra degree of solicitude. Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991).

We first address appellant's claim that he was denied due process of law when he was transferred to administrative segregation and never given a hearing.²  Appellant concedes that the Constitution does not endow inmates with a right to remain in the general population. See, e.g., Hewitt v. Helms, 459 U.S. 460, 467-68 (1983); Rodi, 941 F.2d at 25. Hunnewell argues, however, that Maine law creates such a protected liberty interest.

When a prison inmate advances the claim made here, we typically engage in a two step inquiry. We first ask whether an enforceable interest in remaining in the general population has been created by the state. See, e.g., Rodi, 941 F.2d at 25. If the answer is affirmative, we further inquire whether the plaintiff arguably received less than the process that was constitutionally due. See id. Here, however, we need not address the first question. If we assume, without deciding, that plaintiff had a protected liberty interest, he was only entitled to a review within a reasonable time following his transfer to segregation. See Hewitt, 459 U.S. at 476 n. 8. Plaintiff's claim that he was unconstitutionally denied such a review is infirm because he was only in administrative segregation for three days before being transferred to another institution. Cf. Hewitt, 459 U.S. at 477 (no deprivation of due process where review occurred five days after transfer).³ 

We next address plaintiff's claim that at MCI-Warren, he is unconstitutionally denied his right to earn three days of work-related good time credits per month.⁴  The Constitution does not guarantee a right to earn good time credits. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Accordingly, such a right, if it exists, must be based in state law.

"[A] state creates a protected liberty interest by placing substantive limitations on official discretion." Bowser v. Vose, 968 F.2d 105, 107 (1st Cir. 1992) (alteration in original) (quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). The Maine statute governing good time credits entitles inmates to receive credits for "observing all rules of the department and institution." Me. Rev. Stat. Ann. tit.

17A, Sec. 1253(3), (3-B). With respect to work-related good time credits, however, the statute states:

Up to an additional 3 days per month may be deducted in the case of those inmates committed to the Department of Corrections who are assigned or participating in work, education or other responsibilities within the institution or program that are determined to be of sufficient importance to warrant those deductions by the institution head in accordance with policy and guidelines established by the Department of Corrections.

Me. Rev. Stat. Ann. tit. 17A, Sec. 1253(4) (emphasis added). No liberty interest in work-related credits derives from this statute, since it is phrased in discretionary terms. See Bowser, 968 F.2d at 108 (no liberty interest derived from furlough statute phrased in discretionary terms); see also Parkinson v. State, 558 A.2d 361, 363 (Me. 1989) ("[U]nder 17-A M.R.S.A. Sec. 1253(4), work-related good time is not an entitlement but is awarded only at the discretion of Maine prison officials.").

In support of his claim, however, plaintiff relies, in part, on policy guidelines governing good time credits issued by the Maine Department of Corrections. See Code Me. R. Sec. 03.201010 at 9-14. We have, in previous cases, looked beyond state statutes and scrutinized administrative rules, regulations, contractual commitments, and the like to determine whether a state has conferred a liberty interest on a prison inmate. See, e.g., Rodi, 941 F.2d at 26 (and cases cited therein). Correctional regulations may create a liberty interest if they contain "specific directives to the decision maker that if the regulations' substantive predicates are present, a particular outcome must follow." Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463 (1989). However, not all written regulations containing substantive criteria for action create legitimate claims of entitlement. Some regulations are simply advisory to staff and create no rights. See, e.g., Miller v. Henman, 804 F.2d 421, 427 (7th Cir. 1986), cert. denied, 484 U.S. 844 (1987) (documents designed to guide prison staff, rather than to create claims of entitlement, do not establish a liberty interest).

Because the magistrate judge did not address whether Maine correctional policies create an enforceable interest in work-related good time credits, and the issue has not been fully briefed, we have concluded that the best course is to remand the case for further proceedings on this issue. We express no opinion on the merits of plaintiff's claim or the appropriateness of the particular relief requested.

Plaintiff's remaining claims involve allegations that the conditions of his confinement at MCI-Warren violate the Eighth Amendment. He alleges that he is locked up in a closed-in cell for twenty-three hours a day;⁵  that cell lights are on during the night, making it difficult to sleep; that the ventilation system blows dust and fibers into his cell causing him to have headaches and bloody noses; that he is not adequately protected from the danger of a fire in his cell; and that he risks injury because the mirror in his cell is placed too high, and he must stand on his toilet if he wishes to see his reflection. In addition, Hunnewell alleges that he is daily subjected to the risk of acquired immune deficiency syndrome (AIDS) because his razor is stored in a box where it intermingles with other inmates' razor such that it is exposed to contamination from other inmates' blood.⁶ 

In order successfully to allege an Eighth Amendment violation, plaintiff must first plead facts which, if true, establish an objective component-that a "sufficiently serious" deprivation occurred. Wilson v. Seiter, 111 S. Ct. 2321, 2324 (1991). Only deprivations which deny " 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Id. at 2324 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Hudson v. McMillian, 112 S. Ct. 995, 1000 (1992) ("[E]xtreme deprivations are required to make out a condition of confinement claim."). In addition, a subjective element must be shown-"deliberate indifference" on the part of the official charged with inflicting cruel and unusual punishment. Wilson, 111 S. Ct. at 2327; see also Helling v. McKinney, 113 S. Ct. 2475, 2480 (1993).

Plaintiff's complaints about the lighting, ventilation, and placement of his mirror do not allege deprivations sufficiently extreme to establish a cognizable Eighth Amendment claim. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (routine discomforts are part of the penalty that criminal offenders pay for their offense against society). The same is true of his complaint about isolation. See, e.g., Jackson v. Meachum, 699 F.2d 578, 581-83 (1st Cir. 1983) (holding that very extended, indefinite segregated confinement, without additional deprivations, did not violate Eight Amendment); O'Brien v. Moriarty, 489 F.2d 941, 944 (1st Cir. 1974) (segregated confinement for twenty-three hours a day did not constitute cruel and unusual punishment).

Plaintiff's remaining claims fail for different reasons. There is no question that fire safety is a legitimate concern under the Eighth Amendment. Santana v. Collazo, 714 F.2d 1172, 1182 (1st Cir. 1983), cert. denied, 466 U.S. 974

(1984). However, not every deviation from ideally safe conditions constitutes a violation of the constitution. Id. Moreover, even liberally construed, plaintiff's complaint that his cell is unsafe due to fire hazards is conclusory and fails to state a claim under Sec. 1983. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990) (reviewing court need not credit conclusory allegations). We note that although plaintiff states that there are various (undefined) ways that an electrical fire could start in his cell, he nowhere states that MCI-Warren lacks fire detectors, fire extinguishers, or an evacuation plan.

Hunnewell's complaint that he has been subjected to the risk of acquiring AIDS is also inadequate as framed. Other courts have held that there is no colorable Sec. 1983 claim where the alleged risk of contracting the AIDS virus is unsubstantiated by medical guidelines. See, e.g., Glick v. Henderson, 855 F.2d 536, 539 (8th Cir. 1988). Because the matter has not been adequately briefed, we pass the question whether the AIDS virus can be transmitted in the manner posited and, if so, whether prison officials should have been aware of the risk in the fall of 1992. Apart from the latter, plaintiff has failed to allege sufficient involvement or knowledge to state a Sec. 1983 claim against the warden. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.

1989) (liability under Sec. 1983 may not be predicated upon a theory of respondeat superior).

In sum, Hunnewell failed to plead facts sufficient to establish that he was denied due process by the failure to hold a hearing or that his conditions of confinement constituted cruel and unusual punishment. Accordingly, these claims were properly dismissed. As to his claim of unconstitutional deprivation of good time credits, we vacate the dismissal of the complaint and remand to the district court for further proceedings.

Affirmed in part; vacated in part and remanded. No costs.