Unpublished Disposition, 881 F.2d 1083 (9th Cir. 1987)

MEMORANDUM^** 

William J.R. Embrey, a prisoner, appeals pro se the district court's order granting summary judgment to the defendants in Embrey's action under 42 U.S.C. § 1983 (1982). Embrey contends that defendants Lewis Menke and James Hartford, both prison officials, violated Embrey's due process rights while conducting prison disciplinary proceedings against Embrey.

Embrey contends that the infraction report which notified him that he was subject to discipline for a forgery did not comply with due process because it violated Washington Administrative Code Sec. 275-88-045(2) (a)-(b) and (3) (1983) in that it was not signed by the charging officer, Sergeant Hartford, and did not specify the time and place of the alleged forgery activity. To state a claim under 42 U.S.C. § 1983 the plaintiff must show that he has been deprived of federal rights. The Supreme Court has held that the due process clause of the federal constitution requires that prisoners accused of infractions be given advance written notice of the claimed infraction sufficiently specific "to inform the [disciplinary-action defendant] of the charges and to enable him to marshal the facts and prepare a defense." See Wolff v. McDonnell, 418 U.S. 539, 564 (1974).

While the infraction report might have been technically deficient under Washington law because it was not signed by the charging officer and lacked a statement of the time and place of the alleged infraction, the prison authorities gave Embrey constitutionally sufficient notice of the infraction. The infraction report did contain the typewritten name of the officer submitting the report, as well as a description of the events on which the infractions were based. Embrey's claim is not as strong as the one addressed by this court in Zimmerlee v. Keeney, 831 F.2d 183, 188 (9th Cir. 1987) (per curiam), cert. denied, 108 S. Ct. 2851 (1988), where we held that notice of an infraction complied with due process although it informed the inmate only that he was charged with smuggling drugs into the prison sometime during a five-month period. Embrey was afforded due process because he was given sufficient notice of the infraction to enable him to prepare his defense.

Next, Embrey contends that the district court erred in holding that sufficient evidence of his guilt was presented at the hearing to justify the disciplinary action taken. In reviewing the decision of a prison disciplinary board, this court assesses only whether there is some evidence in the record to support the conclusion reached by the board. See Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455 (1985); Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). Prison disciplinary proceedings that result in the loss of liberty satisfy due process if there is some evidence supporting the decision of the disciplinary board. See Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987); Toussaint v. McCarthy, 801 F.2d at 1104.

There was sufficient evidence in the record to support the disciplinary committee's decision that Embrey was guilty of the infractions. While, as Embrey notes, the prison authorities presented no witnesses who had personal knowledge that Embrey committed the infraction, there was circumstantial evidence linking Embrey with the forgery. Embrey was the recipient of the authentic letter that was used to make the forgery. This was sufficient evidence upon which to base a conclusion that Embrey either personally committed the forgery or was involved in planning it. The district court did not err in granting summary judgment on the claim.

Embrey also contends that the use of a confidential memorandum as a basis for the decision at the hearing violated his due process rights. In Zimmerlee v. Keeney, 831 F.2d at 186-87, this court held that a prison disciplinary committee's determination of guilt based on a statement from an unidentified inmate informant satisfies due process when the record contains some factual information from which the committee can reasonably conclude that the information was reliable, and the record contains a prison official's affirmative statement that safety considerations prevent the disclosure of the informant's name. The Zimmerlee decision also noted that the reliability of such information could be established by the oath of the investigating officer appearing before the committee as to the truth of his report containing the confidential information. Id. Here Sergeant Hartford attested to the reliability of the information, and to the necessity for keeping it confidential for reasons of security. The use of the confidential report therefore comported with due process.

Finally, Embrey contends that the district court failed to make adequate allowance for his pro se status in ruling on the motion for summary judgment. The record shows, however, that the district court gave full and fair consideration to Embrey's case. While the motion for summary judgment was originally brought by the government on October 20, 1986, the district court stayed the hearing on that motion pending completion of discovery at Embrey's request, and did not rule on the motion until October 22, 1987, one year later, after giving Embrey every opportunity to defend against the motion. The district court also denied the government's motion to stay discovery on January 8, 1987, and allowed Embrey to continue gathering support for his claims. Embrey's contention that the district court granted summary judgment against him without fair and meaningful consideration of the facts of his case is meritless.

AFFIRMED.