Hunnewell v. Warden, Maine, 19 F.3d 7, 1st Cir. (1994)
Hunnewell v. Warden, Maine, 19 F.3d 7, 1st Cir. (1994)
Hunnewell v. Warden, Maine, 19 F.3d 7, 1st Cir. (1994)
3d 7
Appeal from the United States District Court for the District of Maine
Dale S. Hunnewell on brief pro se.
Michael E. Carpenter, Attorney General, and Cabanne Howard, Deputy
Attorney General, on brief for appellee.
D.Me.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
Before Breyer, Chief Judge, Torruella and Selya, Circuit Judges.
Per Curiam.
DISCUSSION
4
I.
5
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, 46768 (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
17A, Sec. 1253(3), (3-B). With respect to work-related good time credits,
however, the statute states:
10
11
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.").
12
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.
III.
14
15
17
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
18
(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.
19
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.
20
1989) (liability under Sec. 1983 may not be predicated upon a theory of
20
1989) (liability under Sec. 1983 may not be predicated upon a theory of
respondeat superior).
IV.
21
22
The record indicates that the transfer to segregation was an emergency transfer
motivated by a concern that appellant was engaging in an activity which could
incite other inmates and "jeopardize the orderly management of the prison."
Hunnewell was given notice of these reasons, but there was no review of the
transfer
In his response to the answer, Hunnewell alleges, for the first time, that he
remained in administrative segregation, following his transfer to MCI-Warren.
He supports this allegation with the claim that the conditions of confinement of
all inmates at MCI-Warren, at least until December 17, 1992, were similar to
those imposed on inmates in administrative segregation at Maine State Prison.
Even if wewere to construe Hunnewell's complaint liberally to include these
later allegations, we would not alter our conclusion. Hunnewell does not allege
that he was unconstitutionally transferred to MCI-Warren, or that he was treated
there any differently than members of the general prison population.
Accordingly, he fails to state a claim that a review of his treatment at MCIWarren was constitutionally required. Cf. Hewitt, 459 U.S. at 485-86 (Stevens,
J., dissenting) (noting that the Due Process Clause is implicated only when a
prisoner is singled out for treatment different from that imposed on the
population of the prison as a whole)
Plaintiff does not complain that he is totally deprived of the opportunity to earn
work-related good-time credits at MCI-Warren. Rather, he complains that
inmates at MCI-Warren B Side are limited to one extra good time credit and
inmates at MCI Warren C Side are limited to two extra credits in any month,
regardless of the number of days worked in that month. Plaintiff seeks
prospective, injunctive relief
5
Hunnewell has revised his claim to allege that he was isolated for twenty-three
hours a day at MCI-Warren from the date of his transfer there until December
17, 1992, when the out-of-cell time period of all general population inmates at
MCI-Warren was increased from one hour to an hour and a half
Hunnewell concedes that this practice of storing inmates' razors together has
ceased. However, he alleges that the practice continued for approximately
forty-eight days and seeks damages for emotional distress