*1 being good dispute. judge as she The district plan not as did not abuse his mative action discretion the award of had been told. fees. See In re Lit., Washington Sys. Public Power of Dr. also claimed breach Nelson (9th Cir.1994). 1291, 1296-97 contract, when she was hired she because long-term employment. expectation of had an AND VII.COSTS FEES ON APPEAL supplies she is her state The evidence one-year parties contracts her affidavit The have made various motions for commonly higher are renewed appeal. education costs Appellant’s and fees on re- year. year to Her written contract quest attorney’s from for appeal fees on is DE- termination, and unambiguously provided for Appellant’s request NIED. ap- for costs on paid right of renewal. gave peal her no She is DENIED. Pursuant to Federal Rule very salary 39(a), and due to the last Appellate all benefits appeal of Procedure costs expecta day “hopes it. Dr. Nelson’s and hereby Appellees. are awarded to change express provision tions” could not Appellees requested attorney’s have also year. that her contract was one Van ground appeal fees on the that the is frivo- Community College Dist. Buren v. Pima lous. Appellate Pursuant Federal Rule of (1976); Bd., P.2d 113 Ariz. attorneys’ Procedure we shall award fees Lines, Ltd., Rogers v. American President unless, on the basis frivolousness within 30 (9th Cir.1961). nu Her filed, days of the date this appel- decision is other state law claims are likewise merous contrary. lant shows cause to the unsupported. AMENDMENT V. summary judg two
After one granted, Dr. Nelson moved to
ments was sought complaint. her She to add
amend putting
claims that her on administrative her, her contract ran out defamed
leave while termination of her inter that defendant’s KEENAN, Charles M. Plaintiff- advantageous fered with contractual relations Appellant, expected to form future em which she with retalia ployers and that her termination was Rights in violation of the Civil Act of
tion HALL, Oregon Frank Director These amendments would have been 1991. Department Corrections, et futile, so the district court did not abuse its al., Defendants-Appellees. by denying leave to amend. See discretion No. 94-35726. Hawaii, Barber v. State (9th Cir.1994). Appeals, United Court of States Ninth Circuit. VI. ATTORNEY’S FEES Argued and Submitted Oct. 1995. $15,000 district court awarded Nelson, attorney’s against pursu fees Dr. 8,May Decided providing ant to an Arizona law for attor neys’ fees awards contract cases. A.R.S. 12-341.01(A). put
§ Defense counsel $92,000,
proof that his total fees were almost college’s a hour
billed to the insurer at $85 work, attorney’s an hour for $100
$35, $40, per hour for law clerk’s and
legal assistance’s work. The district court
granted attorney’s judge those fees which the aspects
found arose out of the contract of the *4 SCHROEDER, FLETCHER,
Before: RYMER, Judges. Circuit FLETCHER; by Judge Opinion dissent Judge RYMER.
FLETCHER, Judge: Circuit appeals grant Charles M. Keenan summary judgment dismissing prisoner’s § 1983 action. Keenan that the de- pro- fendants transferred him without due cess, confined him under cruel and unusual conditions, denied him his First Amendment courts, rights, him access to the denied wrongfully opened his mail from the courts presence, imposed illegal outside his injunctive damages fine. seeks both He jurisdiction, We have relief. U.S.C. *5 § part and we affirm in and reverse part.
I. BACKGROUND Oregon Keenan is an inmate of the State (“OSP”). April Prisons On correc- in Keenan’s cell a tions officers discovered packed tips crushed match and two pen with to toothbrushes with razor blades attached third time that correc- them. This was the possession tions officers had found Keenan weapons. of homemade 20, 1992, prison April April 17 and On disciplinary hearing. They authorities held a prison had violated determined that Keenan weapons forbidding possession the rules penalties months con- imposed the of six Disciplinary Segregation in the finement (“DSU”) fine. Keenan at- Unit by Oregon hearing, required tended this 291-105-028(1), law, oppor- and had the OAR tunity speak to on his behalf. own Berlin, Stratton, B. Kenneth B. Steven Littler, Mendelson, Fastiff, Tichy 24,1992, & Mathia- held a April prison authorities On Francisco, California, son, plaintiff- custody sta- San review of Keenan’s classification custody appellant. assigns each inmate a tus. The OSP both in and on the basis of behavior status Wasserman, Assistant Attor- Richard D. custody uses prison, and the OSP out General, Salem, ney Oregon, for defendants- supervision each inmate’s status to determine appellees. hearing, authorities re- prison At this level. su- Keenan from the second-most classified (“close custody”) to the most pervised status (“maximum custody”). supervised status custody inmates houses maximum The OSP segregation party, administrative in an Intensive we must decide any whether there are (“IMU”)- Prison authori- genuine Unit issues of material fact Management and whether correctly allow Keenan to attend this applied ties did not the district court the rele- Oregon requires law notice hearing; vant substantive Id. law. appeal, OAR 291-104- opportunity
and an 035 and -040. A DUE PROCESS disciplinary segregation
When argues the defendants ended, authorities transferred him prison procedural process rights by violated his due to the IMU and not back to from the deciding DSU to transfer to the IMU at a population. general prison Keenan re- hearing classification held his absence. six in the IMU for months. Keenan mained Specifically, argues that the defen many the conditions found there intoler- opportuni dants should have allowed him the noise, able, ventilation, including lighting, behalf, ty Speak Repre “to in his [own] water, exercise, lack of food and outdoor sentation Counsel or Counsel-substitute hygiene supplies. personal lack of While at Investigation ... to have an conducted ... IMU, complained that he had no develop Questions a list of Witnesses and prison library, direct access to the law al- posed be ... present each Witness the use though “correspon- he did have of a Evidence,” Physical Documents [and] and to system.” complained He dence confront adverse witnesses and evidence. opened mail officials addressed to him from Complaint May 17, Amended presence. courts outside of his process remand Keenan’s due claim for objected “publishers only” also to the Conner, OSP’s light reconsideration in Sandin — rule, under which inmates U.S. -, receive read- 132 L.Ed.2d ing prison only from outside materials *6 publishers.
from Sandin, Supreme In the Court was called se, Proceeding pro brought this upon prison to determine whether Hawaii prisoner’s against § action 18 OSP offi- regulations or the Due Process Clause af employees. cers and The district court protected liberty forded Sandin a interest granted summary the defendants’ motion for procedural that protec would entitle judgment on all of Keenan’s claims. Keenan segregation. tions before transfer into appeals with the assistance of counsel. prisoners liberty that Court held have inter protected by
ests
the Due Process Clause
contemplated
where
II.
the
restraint “im
DISCUSSION
poses atypical
significant
hardship on the
appeal presents
First,
This
questions.
six
ordinary
inmate in relation to the
incidents of
did Keenan’s transfer from the DSU to the
at -,
prison life.” Id.
of excess noise.” Toussaint v.
(N.D.Cal.1984)
F.Supp.
4. LIGHTING
din”),
“unrelenting,
(finding
nerve-racking
“Adequate lighting is one of the
part,
part
grounds,
rev’d in
on other
aff'd
‘adequate
fundamental attributes of
shelter’
Cir.1986),
cert. de
required by
Eighth
Hop
Amendment.”
*8
nied,
1069,
2462,
95
Spellman,
towit v.
6. FOOD AND WATER
feet,
9’,
Complaint
square
Amended
or 54
9;
17,1993,
claimed
May
at
the defendants
human
of
Adequate food is a basic
feet,
by 10’,
square
or 60
Keenan’s cell was 6’
Eighth Amendment.
protected
need
3,
Long
Nov.
S.
of
Affidavit of Theodore
Ray,
S.Ct.
Corrections v.
inmates); Hop Thompson,
454, 461, 109
1904,
for two
square feet sufficient
490 U.S.
S.Ct.
1909,
Ray,
(adequacy
F.2d at 1248-49
Summary
towit v.
judged
judgment
dismissing
must be
for its effect on
of cell size
Keenan’s visitation
constitutionally protected”);
proper.
are
claim was
“areas that
v. Parole Bd.
Morales-Feliciano
Com
Rico,
(1st
Puerto
monwealth
13.CANTEEN ITEMS
Cir.1989) (affirming
comply
fine for failure to
alleged the defendants de
Keenan
feet),
provide
square
with order
cert.
him
products
birthday
nied
canteen
such as
denied,
However,
cards.
there is no constitutional
(1990);
Jeffes,
Peterkin v.
L.Ed.2d 646
855 right
Summary
to such
judgment
items.
(3rd Cir.1988) (60
1021, 1026
square
n. 8
F.2d
dismissing Keenan’s canteen items claim was
sufficient). Summary judgment
feet
dismiss
proper.
ing
living space
proper.
claim
Keenan’s
was
C. FIRST AMENDMENT CLAIMS
10.
HARASSMENT
VERBAL
argues
Keenan
that
the district court
alleged
Keenan
by dismissing
summary judgment
erred
“disrespectful
guards made
and assaultive
his First Amendment claims. We conclude
However,
him.
comments” to
verbal harass
produced
that Keenan
sufficient
evidence
generally
Eighth
ment
does not violate the
proceed
reading
to trial on his
materials
Ruggiero,
Amendment. Oltarzewski v.
Summary judgment
claims.
for the defen-
(9th Cir.1987)
(citations
omit
proper
dants was
on Keenan’s other First
ted) (directing vulgar language at
inmate
Amendment claims.
claim).
a constitutional
does
state
Keen
presented
an has not
evidence that
these
1. TELEPHONE ACCESS
unusually gross
comments were
for
even
prison setting and were calculated to and did
Prisoners have a First Amend
psychological damage. Here,
him
cause
access,
telephone
subject
ment
alleged
Keenan
that the comments de
security
reasonable
Strandberg
limitations.
“peace
Summary
nied him
of mind.”
judg
Helena,
City
dismissing
Cir.1986).
Keenan’s verbal harassment
alleged
he was “Denied
proper.
claim was
...
Telephone
personal,
Use of a
Legal
for
Emergency Calls.” Amended Com
and/or
11. RESTRAINTS
plaint
May
However,
defendants claimed Keenan had access to
alleged
every
time IMU
telephones
emergency
legal
calls.
cell,
guards
him
they placed
moved
from his
Long
Affidavit of Theodore S.
of Nov.
him in
pain
restraints that caused
and cuts.
1993, at 10-11. Because Keenan did not
However,
protection
for the
of staff and oth
specify
alleged
whether the
denial of tele
inmates, prison
er
authorities
place a
phone
total,
access
partial,
or even occa
dangerous inmate in shackles and handcuffs
sional,
allege
and did not
that he was denied
they
LeMaire,
when
him
move
from his cell.
access
specific emergency
for a
or call to his
1093 Although qualified immunity pro religion nor Native American to a adherence liability from on this tects the defendants religious guidance requested having ever Moore, claim, Johnson v. 948 F.2d 520- spiritual leader. American a Native from (9th Cir.1991), injunctive 21 on relief remand identify injury fact to Having failed to if is not foreclosed Keenan establishes his refusal, Keenan lacked from such himself Fire, claim. First Amendment American challenge Lujan it. v. standing to Defenders Managers, & Collision Inc. v. Gilles 560-61, 112 S.Ct. Wildlife, U.S. Theft of (9th Cir.1991) (“Quali pie, 932 F.2d Sum 2130, 2136-37, 119 L.Ed.2d immunity fied is an affirmative defense religious dismissing Keenan’s mary judgment damage liability; it does not bar actions for proper. claim was advisor relief.”) (citations injunctive declaratory or omitted). MATERIALS READING 3. challenges the limited number also “pub challenged the OSP’s library, the lack of of books the IMU rule, only publish only” under which lishers by IMU inmates to the.main access the reading materials from may send ers library library, and the “no and the state OAR 291-131- to the inmates. See outside rule,” may passing which inmates not under (“New books, 025(4) newspa magazines, and pass books to one another. view these We directly from the only be received pers, shall part parcel as and of Keenan’s overall claims Wolfish, 441 U.S. In Bell v. publisher.”). reading deprived claim inmates are of 1861, 1880, 520, 550, L.Ed.2d 447 99 S.Ct. they by material and should be viewed the against (1979), upheld Supreme Court the along district court on remand with the de- only challenge publishers a Amendment First by publishers only privations imposed the to hardback applied exclusively rule rule to determine whether the First Amend- might not survive A broader ban books. ment is violated.3 rationale, part In Bell relied in challenge. its inmates were allowed other the fact that on THE D. ACCESS TO COURTS matter,- mag and reading e.g. softback books argues the district 1880-81; 551-52, at 99 S.Ct. azines. Id. dismissing summary judg court erred Sumner, 819-20 Pratt v. see claim that the defendants violated ment his (9th Cir.1987). Also, compelling state right by limiting courts to access to the justified the prison security that interest library, by providing law his access to the may justify a of rule in Bell not ban hardback services, notary copying and inadequate particular se reading materials: “The other lawyer. by denying him contact visits with his bindings of curity presented problem disagree. inapplica appears to be hardbound volumes have a constitutional possibly pa- Inmates also newspapers, ble to Williams, lawyer, or access to assistance of a 755 to either books.” Hurd v. perbound Smith, Cir.1985). (3rd library. Bounds The court a law F.2d 1491, 1498, Hurd, paucity although recognizing the (1977); Bd. Cor case, Lindquist v. Idaho State open possibili in its “[left] evidence Cir.1985). rections, may ty in another case raise that the record inmates such security provide IMU risk The defendants question that the sufficient library correspon to a law as Keenan access exaggerated has such materials been inmates system, under which See dence require plenary a trial on the issue.” library possess hardbound Mushlin, law § 5.04 visit the Rights Michael Prisoners 1993) (“Courts books, copies requested (2d may obtain but have been at 234 ed. hours, help indexes materials within publisher a soft-covered reluctant to sanction materials, weekly from rule_”). assistance choose judge Amendment First poignantly serve as the standard Judge Hurd noted: "To Slovitz in violations, reading reading saying, day importance rephrase highlights a French without it Hurd, sunshine.” society. is like a week without in a civilized Although saying hardly can *11 Although exceptions an correspondence clerks. inmate and irrelevant all law inmate may prevail litigant on a denial a public of access from court to a is a docu- segregation ment, particular prison .personnel a for more they if he has need which could if claim him, files.”). inspect that allowed and that denial want access than the court’s On four harm, occasions, system actual such a him court .clerks mail has caused sent to Keenan high security writing here in a unit “Legal without Mail” on as that afforded the envel- generally adequate. as upheld ope, See on each has been occasion OSP officials and Housewright, 900 F.2d opened pres- v. this mail outside of Keenan’s Wood (9th Cir.1990); Oltarzewski, 830 F.2d at ence. inadequate not shown ac Keenan has allege Keenan does not that mad from his cess. lawyer opened was received and outside his presence. opens The inspects OSP and all photocopy claimed that mail, incoming 291-131-015(4), OAR but does notary expen were too slow and and services open inspect legal not and mail outside of the However, to state an to sive. access receiving presence, inmate’s OAR 291-131- claim that concerns neither the inade courts 030(2). legal The OSP defines mail to in- library quacies the law nor the lack of lawyers clude mail from and courts but it law, person assistance of a trained “Legal must have the words Mail”written on injury,” demonstrate “actual inmate must i.e. 291-131-010(13). envelope, OAR We do specific instance which an “some inmate not have the occasion on these facts to decide actually denied access to the courts.” clearly and we do not decide whether mail Lewis, 886 F.2d Sands v. lawyer from a lacking sent to an inmate but Cir.1989) omitted). (quotations and citations “Legal designation may Mad” opened be alleged injury no actual Keenan has related presence outside the of the inmate. notary copying and services. Keenan claimed the defendants F. THE FINE lawyer. denied visits with his contact argues the district protects while the Constitution by dismissing summary judg court erred on Lewis, visits, Ching v. such ment his claim that the fine exceeded $325 (9th Cir.1990), prison officials restrict guidelines Oregon’s prison sanctions high-risk this where inmates such as regulations. disagree. We involved, Lewis, Casey are (9th Cir.1993) possession explosive Keenan’s of an (applying device 291-105-015(l)(e) (“Contra- violated OAR “legitimate penological interests” test Tur II”). 78, 89, 107 imposed pun- band The Safley, ner v. defendants as 2261-62, (1987), days disciplinary segregation ishment Ching). a fine for this pos- infraction. Keenan’s $25 Keenan has the denial of session of homemade lawyer contact with his knives violated OAR visits has denied him 291-105-015(4)(j) lawyer (“possession prejudiced dangerous access to his of a his access weapon”). infraction, For this the defen- the courts. imposed punishment days
dants disci- plinary segregation E. MAIL LEGAL a fine. $300 argues Major The the district Violation Grid contained in Ore- by dismissing summary gon’s prison court erred judg regulations authorizes a fine $50 improper up disciplinary his claim that the defendants segrega- three weeks ly opened penalize mail to him from tion the courts outside violation of the “Contraband presence. disagree. II” rule. days fine and 14 $25 segregation did not exceed these sanctions Our conclusion turns on the definition of guidelines. “legal courts, mail.” Mail from the as con- prisoner’s to mail from a lawyer, trasted grid is authorizes fine and 120 Brewer, not legal mail. days See Martin v. disciplinary segregation penalize (7th Cir.1987) (“[W]ith possession dangerous weapon. minute of a While *12 security mum was “within the normal limits days segrega- fíne and custody,” by range of it follows that it could guidelines these sanctions exceeded tion “atypical significant imposed not have discretion to 50%, have the officials OSP by hardship” on him. For the reasons stated grid up to 50%. from the upward deviate court, agree I the district also cannot did Keenan’s sanctions 291-105-072. OAE regarding Keenan’s claims the conditions of Nothing in the rules limit. exceed this summary judgment. survive infraction to be confinement than one rule more prevents I report and therefore dissent. disciplinary in up one written imposed for each sanctions to be separate supported must be Deviations
infraction. id.; the defendants ex- findings,
written possessed two writing that Keenan
plained
knives, had the third time he that this was possession of homemade caught
been especially
knives, knives were and that these inmates knew
dangerous because other short, In the deviation had them. LOPEZ, Plaintiff-Appellant, Isabel by Oregon law. authorized ESPY, capacity Michael his official III. CONCLUSION Secretary Agriculture; United States grant court’s of sum- affirm the district We Anderson, as Director of the Cali- Eloise dismissing certain of Keen- mary judgment Department of Social Ser- fornia State and First Amend- Eighth Amendment an’s vices, Defendants-Appellees. claims, regarding claims as well as his courts, courts, from the mail access to No. 94-15538. court’s fine. reverse district and the Appeals, United States Court dismissing summary judgment cer- grant of Ninth Circuit. Eighth Amendment of Keenan’s
tain them claims and remand First Amendment Aug. Argued and 1995. Submitted trial, pro- Keenan’s due and we remand 9,May 1996. Decided of San- light for reconsideration cess claim Rehearing Amended on Denial of din. As July PART; IN IN REVERSED AFFIRMED PART.
RYMER, Dissenting: Judge, Circuit — Conner, -, Sandin v. U.S.
Under (1995), 2293, 132 Keen L.Ed.2d
115 S.Ct. implicate does not into the
an’s transfer IMU his confinement liberty interest unless significant “impose[d] atypical
there ordinary to the
hardship on relation [him] -, Id. life.”
incidents general from the at 2300. Transfer security maximum is “within
population to custody range of which normal limits or has authorized the State
the conviction in maxi
impose,” when the conditions even “substantially security more bur
mum are Fano, Meachum v.
densome.” 2532, 2538-39, in maxi- As Keenan’s confinement