Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)

MEMORANDUM^** 

Nabeeh Mustafa, an Oregon state prisoner, appeals pro se the district court's grant of summary judgment to defendant Hazel Hayes, an Oregon State Board of Parole (Board) official, in Mustafa's civil rights action under 42 U.S.C. § 1983. We affirm.

Mustafa, a flagrant parole violator, contends that he was denied due process of law "based on unlawful execution of arrest warrant and denial of parole revocation hearing within established parole board guidelines." The Board held Mustafa's parole revocation hearing in Oregon despite Mustafa's objection that his hearing should be held in Minnesota where he was temporarily confined. Because of the Board's insistence on holding the hearing in Oregon, Mustafa claims, he lost access to witnesses and evidence.

However, after defendant Hayes moved for summary judgment and provided documentation of Mustafa's parole violations, warrants for his arrest, and his parole revocation hearing, Mustafa relied solely on his complaint and one of defendant's exhibits in opposing the motion. Fed. R. Civ. P. 56(e) requires that the nonmoving party set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. T.W. Elec. Service, 809 F.2d 626, 630 (9th Cir. 1987). Because Mustafa failed to present any probative evidence tending to support his claims, the district court correctly found there was no dispute as to any material fact.

Or.Rev.Stat. Sec. 144.343 requires that a parole revocation hearing be held as "promptly as convenient" when the Board has reasonable grounds to believe a parolee has violated his parole. Mustafa was given a hearing within a month after he was arrested on a parole abscond warrant in Oregon. Before that arrest, the Board was powerless to compel Mustafa's presence at a hearing because he was awaiting trial in Minnesota on two criminal charges which arose after his Oregon parole. See Erickson v. Oregon State Board of Parole, 578 P.2d 499, 501 (Or.Ct.App.1978). Mustafa could have gotten a quicker hearing had he wanted one by turning himself over to Oregon authorities after skipping bail in Minnesota.

AFFIRMED.