* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 11 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RONALD LEE SMITH,

Plaintiff-Appellant, and ALONZO BUGGS,

Plaintiff,

v. ROY ROMER, GALE NORTON, ARISTEDES ZAVARAS, DONICE NEAL, and JOHN HADLEY,

Defendants-Appellees. No. 96-1211 (D.C. No. 94-K-123) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA, EBEL, and BRISCOE, Circuit Judges.1 Plaintiff Alonzo Buggs failed to sign the notice of appeal, and thus is not a proper party to the appeal. See 10th Cir. R. 3.1. -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Ronald Lee Smith appeals from the distric t court’s order dismissing one claim of his pro se civil rights act ion filed pursuant to 42 U.S.C. § 1983 and entering summary judgment on the remaining claims. 1 We review the district court’s rulings de novo, Roman v. Cessna A ircraft Co. , 55 F.3d 542, 543 (10th Cir. 1995) (dismissal under Fed. R. Civ. P. 1 2(b)(6) for failure to state a claim); Wolf v. Prudential Ins. Co. , 50 F.3d. 793, 796 (10th Cir. 1995) (the grant or denial of summary judgment motion), and affirm. Plaintiff is a convicted felon who has been assigne d to administrative segregation at the Colorado State Penitentiary (CSP ), which is the highest custody level in the most controlled environment of the Col orado Department of Corrections (DOC). He alleges that defendants, RoyRomer (the governor of Colorado); Gale Norton (the attorney general of Col orado); Aristedes Zavaras (the executive director of the DOC); Donice Neal (the superintendent of CSP); and John Hadley (the program director of CSP) have viol ated his civil rights by (1)-3-

subjecting him to cruel and unusual punishment, (2) interfering with his access to courts, and (3) depriving him of due process of the law.

I. Cruel and Unusual Punishment The Eighth Amendment, applicable to the states thro ugh the Due Process Clause of the Fourteenth Amendment, Robinson v. Cal ifornia , 370 U.S. 660, 666 (1962), prohibits the infliction of cruel and unusu al punishment on those convicted of crimes. A successful Eighth Amendmentchallenge to conditions of confinement requires a showing on an objective comp onent, concerning the seriousness of the deprivation, and a subjective co mponent, concerning the culpable state of mind of prison officials. See Wilson v. Seiter , 501 U.S. 294, 298 (1991). The objective component of the test is satisfied on ly if the alleged deprivations deny “‘the minimal civilized measure o f life’s necessities.’” Id. at 298 (quoting Rhodes v. Chapman , 452 U.S. 337, 347 (1981)). In examining an assertion that numerous conditions interact to formcruel and unusual punishment, a court must be aware that Some conditions of confinement may establish an Eig hth Amendment violation ‘in combination’ when each would not do s o alone, but only when they have a mutually enforcing effect that pro duces the deprivation of a single, identifiable human need su ch as food, warmth, or exercise--for example, a low cell temper ature at night combined with a failure to issue blankets. . . . N othing so amorphous as ‘overall conditions’ can rise to the level of cr uel and unusual2 The DOC definition of administrative segregation is “the confinement of an

inmate in the most secure, controlled environment available . . . for the purpose of protecting the security of the facility, staff, inm ates and the public.” DOC Reg. 202-2. The DOC periodically evaluates inmates to d etermine if they may be advanced through levels of security. DOC Reg. 600- 1. -4- punishment when no specific deprivation of a single human need exists. Wilson , 501 U.S. at 304-05 (citations omitted). Inmates assigned to administrative segregation at C SP 2are confined to their individual cells for approximately twenty-three hou rs a day. Plaintiff argues that this extended cell time constitutes cruel and unusu al punishment in view of (1) the lack of cleaning service or, alternatively, the need for hotter water and additional cleaning supplies in the cell; (2) the e ating of meals in the cell, within a few feet of the toilet; (3) the limited vocationa l, educational and recreational services offered through a television set in the ce ll; (4) the restriction of exercise to one hour a day in an individual exercise cell; ( 5) the presence of a night light that inmates cannot turn off; and (6) unsanitary an d unventilated shower stalls. Only the allegations relating to conditions in the shower stalls satisfy the objective prong of the Eighth Amendment test. The other complaints in plaintiff’s inventory do not relate to life’s neces sities. Confinement to a cell for twenty-three hours a day does not necessarily amount to a constitutional violation. See Anderson v. County of Kern , 45 F.3d 1310, 1316-17 (9th Cir. 1995); see also-5-

Peterkin v. Jeffes , 855 F.2d 1021, 1029 (3d Cir. 1988) (confinement for twentytwo hours a day). As to the allegations concerning cell cleanliness, it is undisputed that inmates are provided with at least a minimal amount of cleaning supplies. Requiring inmates to eat meals in cells that they must clean themselves does not present an excessive risk to inmate healthor safety. Cf. Wishon v. Gammon , 978 F.2d 446, 449 (8th Cir. 1992) (observing thatprison officials are not responsible for allegedly unsanitary cell condi tions where prisoner is provided with supplies to do his own cleaning). Prisoners have no constitutional right to a range o f educational or vocational opportunities during incarceration. See id. , 978 F.2d at 450. Similarly, they have a right to exercise, but not r ecreation. A CSP exercise cell meets minimum standards for exposure to fresh air and exercise. See Housley v. Dodson , 41 F.3d 597, 599 (10th Cir. 1994); see also Harris v. Fleming , 839 F.2d 1232, 1236 (7th Cir. 1988) (holding no Eighth Amend ment violation where prisoner had shown that he was denied yard or recre ation time, but not all exercise). Finally, difficulty in sleeping caused by a night light with the brightness of a nine-watt bulb falls far short of an extreme deprivation. The trial court properly entered summary judgment o n these aspects of plaintiff’s case. Separately or in combination, th ey do not deprive CSP inmates of a single human need. However, the allegation th at inmates have fainted in the3 In his brief, plaintiff argues at length that defen dants’ political

considerations led to the conditions at CSP. This argument is irrelevant to an Eighth Amendment analysis.

4 The district court dismissed the claim against all defendants, including the (continued...) -6- shower from lack of ventilation raises a legitimate concern and meets the objective component of the Eighth Amendment test. Therefore, the claim must be evaluated under the subjective component, which req uires a showing of “deliberate indifference” on the part of prison off icials. Wilson , 501 U.S. at 298. Deliberate indifference can be found if the prison official knew of and disregarded an excessive risk to inmate health or s afety. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the i nference.” Farmer v. Brennan , 511 U.S. 825, 114 S. Ct. 1970, 1979 (1994). Plaintiff makes no relevant 3 allegations concerning the knowledge or intentions of the individuals named as defendants. In fact, he does not allege sufficient facts to demonstrate a culpable mental s tate on the part of any prison official, named or unnamed. The record shows that officials identified a shower ventilation problem when the facility first opened and attempted to correct the condition. Plaintiff asserts that incidents of fai nting have been reported, but does not provide a time frame. The claim relating to co nditions in the shower stalls was properly dismissed. 44 (...continued)

superintendent of CSP, based on plaintiff’s failure to allege personal participation in the asserted violation. See Bennett v. Passic , 545 F.2d 1260, 1262-63 (10th Cir. 1976). Because Farmerprovides a more appropriate framework for conditions of confinement cases, we do not analyze the district court’s reasoning on this issue. -7- II. Right of Access to the Courts Plaintiff claims that CSP’s policies and procedures infringed upon his constitutional right of access to the courts, see Bounds v. Smith , 430 U.S. 817, 821 (1977), by providing him with insufficient acce ss to library materials and inadequate assistance from legal personnel. There is no independent right of access to a law li brary or legal assistance. Lewis v. Casey , 116 S. Ct. 2174, 2179-80 (1996). An inmate canno t make out a claim “simply by establishing that his prison’s lawlibrary or legal assistance program is sub-par in some theoretical sense.” Id . at 2180. The inmate must show that the denial of legal resources hindered hi s efforts to pursue a nonfrivolous claim. Id . at 2179, 2182; see also Penrod v. Zavaras , 94 F.3d 1399, 1403 (10th Cir. 1996). Further, “the injury requir ement is not satisfied by just any type of frustrated legal claim.” Lewis , 116 S. Ct. at 2182. The claim must involve a direct or collateral attack on the inmate ’s sentence or a challenge to the conditions of confinement. Id.5 We note that CSP conditions did not impede the pros ecution of this case.

Plaintiff filed the complaint on January 11, 1994, less than two months after his CSP reception date of November 23, 1993. He missedno court-imposed deadlines. -8- Plaintiff failed to allege or establish that he was injured by the alleged inadequacies in CSP’s legal access and assistance p rograms. His conclusory statement that he lost two cases “as the result of no legal assistance provided or available,” Reply Brief at 6, is insufficient to wi thstand a summary judgment motion. He provided no information concerning the type of cases that he “lost,” the procedural posture of the cases, the merits of the cases, or the nature of the assistance sought from CSP legal personnel. 5 The district court correctly determined that defendants are entitled to summary judgment on the legal access claim.

III. Due Process of the Law Plaintiff’s final claim, asserting deprivation of d ue process of the law, raises two possible theories: substantive due proc ess and procedural due process. To the extent that plaintiff is alleging that condi tions at CSP amount to a substantive due process violation, the claim is “es sentially coextensive with Eighth Amendment prohibitions against cruel and unu sual punishment, and . . . the Eighth Amendment serves as the primary source o f protection for convicted prisoners.” Lunsford v. Bennett , 17 F.3d 1574, 1583 (7th Cir. 1994). In the-9-

absence of cruel and unusual punishment, there can be no deprivation of substantive due process rights. Id

. Moreover, plaintiff’s assignment to administrative segregation at CSP does not provide him with a procedural due process claim . Neither the Constitution nor Colorado prison rules and regulations create a liberty interest in prisoners’ classifications. See Moody v. Daggett , 429 U.S. 78, 88 n.9 (1976) (concerning the Constitution); Templeman v. Gunter , 16 F.3d 367, 369 (10th Cir. 1994) (concerning Colorado provisions). Summary judgmentis the appropriate disposition of plaintiff’s due process claim. After analyzing plaintiff’s arguments and examining the entire record, we find no basis of error upon which to reverse. The judgment of the district court is, therefore, AFFIRMED. The mandate shall issue f orthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge