[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1496
ROBERT M. JOOST,
Plaintiff, Appellant,
v.
CORNELL CORRECTION, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lipez, Circuit Judges.
Robert M. Joost on brief pro se.
Michael C. Donahue, M. Christine Breslin and Gelerman,
Cashman & Donahue on brief for appellees.
May 9, 2000
Per Curiam. In 1996, in order to attend his new
trial on a criminal count that had been vacated on appeal,
plaintiff Robert Joost was transferred from a federal prison
in Pennsylvania to the Wyatt Detention Facility (Wyatt) in
Rhode Island. He was at that time already serving a lengthy
sentence on a related count of conviction. Less than five
months later, after again being convicted and sentenced on
the vacated count, he was returned to Pennsylvania. In this
Bivens action for damages, plaintiff alleges that various
conditions at Wyatt violated his constitutional rights and
contravened Bureau of Prison (BOP) regulations. The
district court, adopting, as amended, the report and
recommendation of a magistrate judge, dismissed for failure
to state a claim. See Fed. R. Civ. P. 12(b)(6). We affirm
substantially for the reasons enumerated below, adding only
the following comments.
1. Wyatt is a municipally owned, privately
operated facility that houses federal prisoners, among
others, pursuant to a contract with the United States
Marshals Service. Whether the BOP regulations apply to such
a facility--an issue over which the magistrate judge and
district judge divided--need not be resolved here.
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Plaintiff's claims prove to be deficient even if we assume,
without deciding, that the regulations do apply.
2. We endorse the determination made below that,
for purposes of the instant case, plaintiff should be deemed
a convicted prisoner rather than a pretrial detainee.
Indeed, the very regulations relied on by plaintiff so
specify. See 28 C.F.R. § 551.101(a)(3).
3. In his Eighth Amendment claims, plaintiff
alleges that four separate conditions at Wyatt constituted
cruel and unusual punishment: his inability to properly
exercise; his confinement in an overcrowded two-person cell;
his occasional confinement in a holding area; and his
exposure to loud noise. In each instance, we agree that
plaintiff has failed to satisfy the objective component of
the Eighth Amendment test--i.e., to "show that he is
incarcerated under conditions posing a substantial risk of
serious harm." Farmer v. Brennan, 511 U.S. 825, 834 (1994);
see, e.g., Giroux v. Somerset County, 178 F.3d 28, 32 (1st
Cir. 1999).
The latter three claims require little comment.
Plaintiff has admitted that the noise quieted down by 11:00
at night. His confinement in the holding cell entailed
nothing more than "routine discomfort." Hudson v.
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McMillian, 503 U.S. 1, 9 (1992). And he has not contended
that the double celling or other incidents of overcrowding
led to "deprivations of essential food, medical care, or
sanitation," increased "violence among inmates," or created
"other conditions intolerable for prison confinement."
Rhodes v. Chapman, 452 U.S. 337, 348 (1981).
His complaint about lack of exercise comes closest
to stating a claim. See, e.g., Antonelli v. Sheahan, 81
F.3d 1422, 1432 (7th Cir. 1996) ("Lack of exercise may rise
to a constitutional violation in extreme and prolonged
situations where movement is denied to the point that the
inmate's health is threatened."). Yet that complaint is
vague and qualified; he alleges only that he was "denied any
opportunity to properly exercise" and that he thereby
incurred an unspecified shoulder injury. Moreover, it is
undisputed that plaintiff could leave his cell for six hours
per day. He acknowledges that a "recreation place" and a
(cramped) weight room were available. And the docket sheet
from his retrial reveals that he attended court sessions on
at least nine occasions. Considering the relative brevity
of plaintiff's 140-day stay at Wyatt, we agree as a matter
of law that this claim is not "sufficiently serious" to make
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out an Eighth Amendment violation. Wilson v. Seiter, 501
U.S. 294, 298 (1991).
4. Plaintiff's due process claims involve a
separate trio of conditions: the denial of contact visits;
an 18-hour lockdown policy; and a telephone system that
permitted only collect calls to be made at exorbitant rates.
Plaintiff contends that each of these conditions contravened
BOP regulations. In the latter two cases, he is clearly
mistaken. And in the case of contact visits, such an
argument draws a modicum of support only from a provision to
which he has not referred (28 C.F.R. § 540.51(g)(2)).
Regardless, where all Wyatt inmates have been denied contact
visits, that deprivation cannot be deemed an "atypical and
significant hardship ... in relation to the ordinary
incidents of prison life" so as to implicate a
constitutionally protected liberty interest. Sandin v.
Conner, 515 U.S. 472, 484 (1995). The same conclusion
applies to the lockdown, to which at least half of Wyatt's
inmates were subjected; plaintiff's analogy to
administrative segregation is unpersuasive.
In turn, the contention that plaintiff had a
property interest in reasonable phone rates is unsupported.
The settlement agreement reached in an unrelated case,
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involving a type of phone system not in place at Wyatt,
avails him little. And to the extent plaintiff's complaint
can be construed as a demand for injunctive relief in this
regard, that request is now moot.
5. Plaintiff's final series of claims, alleging
violations of equal protection, involve this same trio of
conditions. The magistrate judge accurately described "the
gravamen" of these claims as alleging "that [plaintiff] and
other prisoners housed at Wyatt enjoy[ed] fewer privileges
than those enjoyed by prisoners incarcerated in most prisons
operated by the Bureau of Prisons." That argument was
properly dismissed. See, e.g., Biliski v. Harborth, 55 F.3d
160, 162 (5 th Cir. 1995) (per curiam) (rejecting equal
protection claim where plaintiff sought to compare
conditions at different prisons).
Before the district judge, and again on appeal,
plaintiff has insisted that the magistrate judge
"misinterpreted" his claims and that he was mainly
complaining about differential treatment among separate
groups of Wyatt inmates. To the contrary, his earlier
pleadings contained no such argument; instead, they demanded
that plaintiff be treated the same as the other "100,000-
plus federal prisoners." This complaint about different
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conditions within Wyatt itself thus constitutes a new
argument that, not having been presented to the magistrate
judge, has been waived. See, e.g., Maine Green Party v.
Maine Secretary Of State, 173 F.3d 1, 4-5 (1 st Cir. 1999);
Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec.
Co., 840 F.2d 985, 990-91 (1st Cir. 1988) ("We hold
categorically that an unsuccessful party is not entitled as
of right to de novo review by the judge of an argument never
seasonably raised before the magistrate."). At least from
the record before us, we add that the argument appears of
dubious merit in any event.
Affirmed.
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