Joost v. Cornell, (1st Cir. 2000)

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[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]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. 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. 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 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, 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

(5th 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 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 (1st 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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