Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1989)

MEMORANDUM^** 

Robert Lee Jennings, an Arizona state prisoner, appeals pro se the district court's grant of summary judgment and dismissal of his 42 U.S.C. § 1983 complaint. Jennings alleged in his complaint and in an affidavit filed in opposition to the motion for summary judgment that a prison guard violated his constitutional rights by striking him in the mouth, causing him to be placed in isolation and having him transferred to a different facility with fewer privileges. The judgment is affirmed in part and reversed in part.

Jennings filed an affidavit swearing that the prison guard struck him, not out of concern for security or in self-defense, but because she was personally involved with another male inmate and Jennings had observed them interacting sexually. This evidence raised a triable issue of fact as to whether his eighth amendment rights were violated. See Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (whether a security measure violates a prisoner's eighth amendment rights depends on whether force was applied in a good faith effort to maintain discipline or for the purpose of causing harm). Accordingly, summary judgment was not proper as to this claim. See Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988) (summary judgment is appropriate only if, viewing the evidence in the light most favorable to the party opposing the motion, there is no genuine issue of material fact).

The district court properly dismissed Jennings's claim arising from his placement in isolation without notice and hearing. See Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986) (due process does not require prior notice or hearing for administrative segregation). The district court also properly dismissed Jenning's claim that his constitutional rights were violated by his transfer to different facility with fewer privileges based on a false report by the prison guard. See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (prison authorities may change a prisoner's "place of confinement even though the degree of confinement may be different and prison life may be more disagreeable in one institution than in another" without violating the prisoner's due process rights); Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984) (allegation that prison guard planted false evidence in retaliation for prisoner's failure to pay extortion demand fails to state section 1983 claim so long as procedural due process was provided). Jennings' right to procedural due process was satisfied by the disciplinary hearing in which he was afforded the opportunity to challenge the guard's report and by the appeal he was given from the ruling against him.

AFFIRMED in part and REVERSED and REMANDED in part.