Unpublished Disposition, 842 F.2d 336 (9th Cir. 1988)

MEMORANDUM^** 

Edward Allen White, an Arizona state prisoner, appeals pro se and in forma pauperis the district court's order granting summary judgment in favor of the defendants, employees of the Arizona state prison system, in this 42 U.S.C. § 1983 action. White contends that the district court erred by concluding that there were no genuine issues of material fact regarding his claim of denial of due process at a prison disciplinary hearing and his claim of religious discrimination. We reverse and remand.

* White's complaint alleged that the defendants subjected him to disciplinary action, including the loss of good time credits, without due process of law. Arizona has created a liberty interest for its state prisoners in freedom from deprivation of good-time credits. McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986). Before depriving a prisoner of this liberty interest, the state must provide the following procedural protections: (1) advance written notice of the claimed violation; (2) a written statement of the reasons and the evidence relied on by the fact finder; and (3) an opportunity to call witnesses and present documentary evidence in his defense when allowing him to do so will not be unduly hazardous to institutional safety or correctional goals. Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974).

We agree with the district court that no material issue of fact existed as to the first two requirements. As to the third, however, the record is unclear regarding whether White called all of the witnesses he alleges, whether they were allowed to testify, and if not allowed, whether reasons were given for their exclusion. The court determined that White requested a total of 15 witnesses, 11 inmates and 4 prison staff members, and White asserts that only one witness was called and even that witness was prohibited from testifying. The opposing affidavit states that all witnesses requested by White were called except for two who refused to testify, and that four inmates were excused because their testimony was considered cumulative. Viewing the record in the light most favorable to White, see Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983), the exclusion of the remaining eight witnesses is unaccounted for.¹  "In the absence of any evidence that the denial of witnesses was due to institutional security, ... the district court erred in granting summary judgment as to all issues raised by appellant." McFarland, 779 F.2d at 1429. We therefore reverse and remand for a trial on this issue.

II

White's complaint also alleged two claims of racial and religious discrimination. First, White alleges that although prison officials furnished Christian and Jewish prisoners with bibles and other religious literature and allowed them to receive visits from clergy, no Muslim prisoners were allowed visits from clergy nor were they provided with comparable religious literature. Second, White alleges that he was subjected to the disciplinary action discussed above in retaliation for his and other black Muslim prisoners' attempts to express their grievances to the warden. He submitted no evidence in support of this claim.

We agree with the district court that summary judgment was proper as to the second claim. The defendants were not required to submit evidentiary material negating the plaintiff's claim; rather, they could rest their motion on the absence of evidence supporting the plaintiff's case. Celotex Corp. v. Catrett, --- U.S. ----, 106 S. Ct. 2548, 2554 (1986).

However, we reverse the district court's grant of summary judgment as to White's first claim. Defendants have not even responded, by argument, affidavit or otherwise, to White's allegations concerning disparate treatment of Muslim prisoners. Unless the moving party meets its initial burden of establishing the absence of a material issue of fact, summary judgment must be denied even if no opposing evidentiary matter is presented. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). White's affidavit in response to the motion for summary judgment states that the facts alleged in his complaint are true and that he is competent to testify to them. Although a conclusory affidavit might have been insufficient had defendants made any contrary showing, White's uncontroverted allegations, viewed in the light most favorable to his case, are sufficiently specific to create a genuine issue of material fact. Neither the district court nor the magistrate discussed this issue, nor did either explain why White's claim was inadequate. As White's allegations clearly state a sufficient cause of action, see Cruz v. Beto, 405 U.S. 319, 322 (1972), summary judgment as to this claim was improper.² 

REVERSED AND REMANDED.