USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2048
No. 94-1142
BRENDAN MCGUINNESS,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Brendan M. McGuinness on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General, and
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Rosemary Ford, on briefs for appellees.
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May 11, 1994
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Per Curiam. The plaintiff, Brendan McGuinness, an
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inmate at the Massachusetts Correctional Institution at Cedar
Junction, filed a complaint, pursuant to 42 U.S.C. 1983,
against eight prison administrators and officers. McGuinness
has appealed a district court order granting summary judgment
in favor of the defendants and denying his request for a
preliminary injunction. We affirm.1
I.
We review the grant of summary judgment de novo,
employing the same standards as is required of the district
court, Webb v. Internal Revenue Serv., 15 F.3d 203, 205 (1st
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Cir. 1994), and mindful of our duty to review the record in
the light most favorable to the nonmoving party, Shinberg v.
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Bruk, 875 F.2d 973, 974 (1st Cir. 1989).
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A motion for summary judgment must be
granted if "there is no genuine issue as
to any material fact and ... the moving
party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c).
To succeed, the moving party must show
that there is an absence of evidence to
support the nonmoving party's position.
Having done so, the burden shifts to the
nonmoving party to establish the
existence of an issue of fact that could
affect the outcome of the litigation and
from which a reasonable jury could find
for the opponent. It is settled that the
nonmovant may not rest upon mere
allegations, but must adduce specific,
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1. Our affirmance of the grant of summary judgment
necessarily is an affirmance of the denial of the preliminary
injunction request. We, therefore, do not address separately
the preliminary injunction issue.
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provable facts demonstrating that there
is a triable issue. There must be
sufficient evidence favoring the
nonmoving party for a jury to return a
verdict for that party. If the evidence
is merely colorable or is not
significantly probative, summary judgment
may be granted.
Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990) (internal
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quotations and citations omitted).
II.
In February 1992, McGuinness admitted to attempting to
flush his sweatshirt down the toilet in his cell. He was
found guilty of three disciplinary offenses2 with respect to
this incident. McGuinness' institutional folder was then
reviewed. He had had 44 disciplinary reports in two years,
including six assaults on staff, four violations for
possession of a weapon, and two drug-related offenses. At
the time of the flushing incident, McGuinness was in the
prison's Departmental Segregation Unit (DSU) for assaulting a
staff member. After reciting this, the hearing officer
stated:
[t]his inmate exhibits assaultive along
with disruptive behavior both in general
population and segregation. The conduct
that the inmate has displayed makes him a
viable candidate for DDU. This type of
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2. 103 CMR 430.24(3): Failure to keep one's person or one's
quarters in accordance with institutional rules; 103 CMR
430.24(8): Conduct which disrupts or interferes with the
security or orderly running of the institution; 103 CMR
430.24(22): Willfully destroying or damaging state property
or the property of another person.
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defiant behavior, along with total
disregard for the rules and regulations
of the institution is unacceptable and
will not be tolerated.
Supplementary Record Appendix, No. 94-1142, ("SRA") at p. 20.
McGuinness was given a sanction of six months in the prison's
Departmental Disciplinary Unit (DDU).3 According to the
affidavit of defendant Larry E. DuBois, the Commissioner of
the Massachusetts Department of Corrections (DOC), the DDU
has a maximum capacity of 121 inmates and is reserved for
violent inmates and/or those with severe disciplinary
problems. SRA at pp. 116-19.
A.
McGuinness filed a 1983 action against several prison
officials claiming that conditions in the DDU violated
provisions which grew out of state court litigation, Hoffer
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v. Fair, Supreme Judicial Court, No. 85-71. Hoffer was a
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class action challenging regulations pertaining to, and
conditions in, the prison's DSU. As we understand it, the
DSU is for administrative segregation and an inmate typically
is housed in the DSU because he is believed to pose a threat
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3. According to the defendants, McGuinness served his six
month DDU sentence for the flushing incident from May to
November 1992. He was released from the unit, but upon being
found guilty of an assault, he received a second six month
term in the DDU and began serving this term in February 1993.
Presently, according to the defendants, McGuinness is serving
yet a third six month period in the DDU, as a result of
another assault. SRA at p. 128; Defendants' brief, Appeal
No. 94-1142, at p.2 n.1.
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to security.4 When that threat has dissipated, an inmate
ought to be released back into the general prison population.
The result of the Hoffer litigation was promulgation of
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revised regulations, including those pertaining to the review
and release of an inmate after DSU placement. The revised
regulations provide for periodic hearings to review an
inmate's DSU classification and written guidance to an inmate
regarding what he might do to shorten his DSU term. See 103
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CMR 421.15(2)(c); 103 CMR 421.19(2)(a) (effective 12/15/89).
The revised regulations also provide for an expanded range of
activities and privileges than previously permitted to DSU
inmates, such as access to educational and rehabilitative
programs. 103 CMR 421.21 (effective 12/15/89).
While the Hoffer litigation was pending in the state
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court, Commissioner DuBois instituted the DDU as a new unit
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4. An inmate may be placed or retained
in a DSU only after a finding by the
Commissioner based on substantial
evidence that, if confined in the general
population of any state correctional
facility:
(1) The inmate poses a substantial
threat to the safety of others; or
(2) The inmate poses a substantial
threat of damaging or destroying
property; or
(3) The inmate poses a substantial
threat to the operation of a state
correctional facility.
103 CMR 421.09 (effective 12/15/89).
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for disciplinary segregation.5 A sentence to a period of
confinement in the DDU is not subject to periodic review.
Inmates in the DDU are not provided access to educational
programs. McGuinness' 1983 suit charges that the new DDU
unit is merely the pre-Hoffer DSU by another name. He
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claimed that the improvements in the conditions and programs
in the DSU brought about through the Hoffer litigation, in
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particular, periodic classification review and access to
rehabilitative programs, are applicable to the DDU and that
the defendants have failed to provide him with those.
Like the district court, however, we conclude that
summary judgment in favor of the defendants is warranted on
this claim. The record is clear that the DSU, which was the
subject of the Hoffer litigation, and the DDU are separate
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units, used for distinct purposes. Apart from Commissioner
DuBois' affidavit, the defendants submitted a copy of an
April 1992 court order in the Hoffer litigation, in which the
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state court declined to enjoin the Commissioner from
operating the DDU. It is true that the denial of the
injunction was without prejudice, in the event that the
Hoffer plaintiffs could further develop their factual claim
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regarding the relationship between the DDU and the DSU. SRA
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5. According to DuBois' affidavit, he directed that the
Department's regulations be amended on an emergency basis so
as to deal with what he viewed to be an emergency situation.
The amended regulations with respect to disciplinary
segregation went into effect on January 22, 1992.
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at pp. 122-23. McGuinness has presented nothing, however,
indicating that the Hoffer plaintiffs subsequently have been
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successful in this claim.
Moreover, McGuinness has not suggested why it is
unlawful, per se, to treat an inmate in administrative
segregation differently from an inmate in disciplinary
segregation. We need not, and therefore do not purport to,
determine whether the conditions in the DDU comply with the
Federal Constitution, but we note that the reasons provided
by the defendants for the distinct treatment appear
reasonably related to a legitimate penological interest. See
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Turner v. Safley, 482 U.S. 78, 89 (1987) (announcing the
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standard for determining the validity of prison regulations
which impinge on inmates' constitutional rights). A DDU term
punishes "the most dangerous and repetitive kind of conduct,"
while the "DSU remains a place to house and control inmates
who pose a danger to themselves or to others but for one
reason or another may not be amenable to punishment and for
whom the DDU would serve no penological purpose." DuBois
affidavit at p. 4.
Because, presumably, an inmate in administrative
segregation may be entitled to release from that type of
segregation when the reasons for its implementation, for
example, a threat to security, have dissipated and his
behavior in the DSU warrants his release to the general
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population, it is reasonable to require that a DSU inmate
have the possibility of obtaining, and the means to obtain,
that release through periodic classification review hearing
and access to rehabilitative programs. By contrast, a DDU
inmate is being sanctioned for violent or severe disciplinary
problems by a fixed period of a more severe level of
incarceration. As there is no entitlement to early release
from the DDU, there would appear no need for the periodic
classification review hearing nor have we been pointed to
authority for the proposition that prison officials may not
sanction an inmate by withdrawing educational programs during
his placement in higher security.
We further remark that the Hoffer court, itself, in
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addressing the conditions in administrative segregation,
noted "the necessity of distinctions from the treatment of
those confined for disciplinary violations and those confined
solely for administrative reasons." Hoffer v. Fair, Supreme
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Judicial Court, No. 85-71, Memorandum, Order and Judgment #17
(Sept. 19, 1989), SRA at p. 76. Suffice it to say that
summary judgment for the defendants was warranted on
McGuinness' claim that conditions in the DDU violated the
state court's rulings in the Hoffer litigation.
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B.
McGuinness' second contention is that his access to the
law library or its materials, while confined to the DDU,
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fails to comply with a "stipulation of dismissal" entered
into in the Massachusetts federal district court case of
Cepulonis v. Fair, No. 78-3233-Z. The parties in Cepulonis
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stipulated that the DOC would maintain a satellite law
library in the DSU with a designated list of particular
lawbooks. The stipulation also contained provisions for
requesting access to the satellite library, access to the
main prison library or to material available there but not in
the satellite library, and provisions regarding library
hours. The short answer is that the Cepulonis suit was a
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class action concerning law library access of inmates housed
in the DSU. It did not speak to the DDU which, we recognize,
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had not yet been created. But, by the same token, an alleged
failure to comply with the stipulation in Cepulonis (which
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addresses the DSU) may be a questionable thread on which to
hang a claim regarding the contours of the entitlement of the
law library access in the DDU.
The record indicates that an inmate in the DDU is
permitted a minimum of two hours access per week to a book
cart with a selection of starter volumes6; may request from
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6. According to the affidavit of defendant Ronald T. Duval,
the Superintendent of MCI Cedar Junction, these include the
Federal Rules of Criminal Procedure, the Federal Rules of
Civil Procedure, the Local Rules of the U.S. District Court
for the District of Massachusetts, the Federal Practice
Digest on Prisons, Constitutional Law, and Criminal Law, the
Massachusetts Rules of Court, the Massachusetts Practice
volumes on Criminal Practice and Procedure and Criminal Law,
Massachusetts Criminal Law and Procedure, Cohen, How to Find
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the prison's law librarian any legal materials, up to six
items at one time, including legal research material in the
prison's main law library which is not available in the DDU,
which the inmate identifies, either by name or general topic;
and may retain loaned legal material in his cell provided
that it does not exceed the one cubic foot maximum level.7
We do not purport to resolve here (because it is not squarely
presented) whether these provisions for law library access
while in the DDU suffice to meet any constitutional threshold
for access to the courts.8 We conclude only that the
defendants were entitled to summary judgment on McGuinness'
claim that the provisions for law library access, while in
the DDU, violate the stipulation entered into in the
Cepulonis case regarding the DSU.
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the Law, Gobert and Cohen, Rights of Prisoners, and Black's
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Law Dictionary. SRA at p. 127.
7. According to Duval's affidavit, DDU inmates also have the
opportunity to retain and consult with outside, licensed
counsel, both in person and by telephone.
8. To succeed on a claim of denial of a constitutional right
of access to courts, a prisoner may be required to show an
"actual injury" to his ability to participate meaningfully in
the legal process, unless the deprivation is so significant
as to constitute an injury in and of itself. Sowell v. Vose,
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941 F.2d 32, 34-35 (1st Cir. 1991) (per curiam). A challenge
to the basic adequacy of available materials may typify a
classic allegation of inherent prejudice, but not every
restriction on access to a prison law library is an
inherently injurious act. Id. at 34.
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C.
McGuinness' third claim was that 103 CMR 430.25(3)(d)9
which authorizes, as a disciplinary sanction, a sentence to
the DDU for a period of up to ten years impermissibly
conflicts with Mass. Gen. L. ch. 127, 40. That statute
reads:
For the enforcement of discipline,
an inmate in any correctional institution
of the commonwealth may, at the
discretion of its superintendent, be
confined, for a period not to exceed
fifteen days for any one offence, to an
isolation unit.
Such isolation units must provide
light, ventilation and adequate sanitary
facilities, may contain a minimum of
furniture, and shall provide at least one
full meal daily.
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9. The applicable regulations regarding disciplinary
proceedings authorize the following sanctions for "major"
matters:
(a) Isolation, for a specified period of
time not to exceed 15 days for one
offense, and no more than 30 days for all
violations arising out of one incident.
(b) Recommended good time forfeiture.
(c) All minor sanctions.
(d) Sentence to a Department
Disciplinary Unit for a period not
exceeding 10 years. An inmate shall be
credited for time served on a monthly
basis except when an inmate fails to
attend his monthly review or is found
guilty of a disciplinary offense.
103 CMR 430.25(3) (4/10/92).
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McGuinness' contention is that a sentence to the DDU is a
sentence to an isolation unit.
The statute does not define an isolation unit beyond one
which must provide "light, ventilation and adequate sanitary
facilities, may contain a minimum of furniture, and shall
provide at least one full meal daily." Mass. Gen. L. ch.
127, 40. The prison regulations do not further define an
isolation unit.
The record, however, evidences that the two are not the
same. The disciplinary proceeding regulations, themselves,
treat the two as distinct. The authorized sanctions for
commission of a disciplinary offense designated as a "major"
matter include isolation and/or a sentence to the DDU. See
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supra note 9.10 According to defendant Michael T. Maloney,
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Deputy Commissioner of the Massachusetts DOC:
The conditions in the DDU are not as
severe as those that prevail in an
"isolation unit" in the Massachusetts
Department of Correction.
An inmate in isolation is never
allowed a television or radio. For
fifteen days at a time, he is deprived of
all out-of-cell activity and deprived of
all outside contact or stimulus with the
exception of a Bible or other holy book.
By contrast, DDU inmates can
communicate with other inmates one hour
per day, five hours per week during their
exercise periods. Pending good behavior,
they can have telephone calls, visits and
a television and radio.
SRA at pp. 124-25; see also SRA at p. 37.
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McGuinness counters by arguing that, at the very least,
the conditions imposed for the first 30 days of a DDU term
violate Mass. Gen. L. ch. 127, 40, which limits confinement
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10. Those regulations further provide:
The Superintendent shall designate
such person or persons as he deems
appropriate to review the status of
inmates housed in isolation on a weekly
basis. No inmate shall be retained in
isolation continuously for more than 15
days for any one violation. No more than
30 days isolation shall be imposed on an
inmate for all violations arising out of
the same or substantially connected
incident(s), unless specifically
authorized by the Commissioner. No
inmate shall, at any given time, be
facing more than 30 days of closed solid
door isolation time, unless specifically
authorized by the Commissioner.
103 CMR 430.22(2) (4/10/92).
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to an isolation unit to "fifteen days for any one
offence."11 According to the DDU Orientation Manual, SRA
at pp. 28-40, for the first 30 days in the DDU, an inmate is
not allowed a radio, visitors, or access to a telephone.
These privileges may be earned after an inmate has completed
30 days free of disciplinary sanctions. SRA at p. 33. After
60 consecutive days of "disciplinary report free behavior," a
DDU inmate is permitted a television and additional visiting
and telephone periods. SRA at. 33-34. If, however, an
inmate engages in conduct resulting in disciplinary
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11. Caselaw tells us that
[b]y order of the [DOC] Commissioner, no
more than thirty days of isolation may be
imposed as a result of a single incident
regardless of how many separate offenses
were involved. [We note, for example,
that, with respect to the "flushing"
incident, McGuinness was found guilty of
three separate prison offenses. See
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supra note 2.] Also by order of the
Commissioner, at no time shall any inmate
be facing accumulated isolation sanctions
of more than thirty days even when
numerous infractions have been committed.
If two fifteen-day isolation sanctions
are to be served, the inmate is removed
from isolation for twenty-four hours
between the two periods. During this
twenty-four-hour break the solid door is
left open and the inmate is accorded the
privileges enjoyed by inmates not serving
isolation time, including visits and
exercise.
Libby v. Commissioner of Correction, 385 Mass. 421, 425
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(1982).
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sanctions, he loses privileges and a new 30 day adjustment
period is begun. SRA at p. 33.
Although these conditions may be "isolating," we do not
think the record supports the conclusion that the first 30
days of a DDU confinement is a confinement to an "isolation"
unit in violation of Mass. Gen. L. ch. 127, 40. A DDU
inmate, even during the initial 30 days of his DDU
confinement, has a one hour per day, five days per week, out-
of-cell exercise period during which he can communicate with
other inmates. SRA at p. 37; pp. 124-25. In contrast to an
inmate in an isolation unit, who is deprived of reading
material except for a Bible or other holy book, a DDU inmate
is permitted four personal or library paperback books,
newspapers or magazines in any combination. Two books may be
borrowed from the library cart at any one time. SRA at p.
37. A DDU inmate is permitted access to the "DDU [Legal]
Research Area," whereas an inmate in isolation "will not
normally be allowed Research Area access." SRA at p. 38-40.
The district court did not err in granting summary judgment
to the defendants on McGuinness' claim that a sentence to the
DDU is a sentence to an isolation unit.
III.
The order of the district court granting summary
judgment in favor of the defendants is affirmed.
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