Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Angel M. Gomez, a prisoner at the Oregon State Penitentiary, filed suit under 42 U.S.C. § 1983. He alleged he was denied due process in a formal disciplinary hearing in the prison, and that his rights to equal protection under the fourteenth amendment were violated. The district court granted the defendants' motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS

A correction officer in the Oregon State Penitentiary charged Gomez with being in "E Block," an unauthorized area of the prison.¹  During a formal disciplinary hearing conducted by defendant Santos, Gomez requested an investigation pursuant to Or.Admin.R. 291-105-057(11) (e), and asked that Sergeant Herl be called as a witness. Gomez contended testimony by Herl would show that Gomez had permission to be in E Block. Gomez failed to follow the procedures required by Or.Admin.R. 291-105-057(11) (f) for calling witnesses to testify. Santos refused to require Herl's attendance as a witness. Santos concluded that Gomez had been in E Block without permission and recommended that he be punished by one month's loss of privileges. Gomez appealed to the prison superintendent, defendant Maass, who denied his appeal.

Gomez then filed this civil rights action in the district court. He alleged that the Oregon administrative rules created a liberty interest under the fourteenth amendment which he had been denied in his formal disciplinary hearing. Gomez also asserted an equal protection claim, which he based on allegations that he is an effeminate transsexual and as such falls within a suspect class within the ambit of the equal protection clause.

In granting the defendants' motion for summary judgment, the district court concluded that Gomez had no constitutionally protected liberty interest under Oregon's administrative rules. Thus, there had been no due process violation. The district court also concluded that the hearing officer did not err in refusing to require Herl's attendance as a witness because Herl's testimony would have been irrelevant. Gomez' equal protection claim was also rejected.

DISCUSSION

We review a district court's grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). We follow the standard under Fed. R. Civ. P. 56(c) and must determine whether the court correctly applied the law and whether any issue of material fact exists. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

Gomez' due process claim is founded on what he contends was a violation of a liberty interest created by Oregon's administrative rules and protected by the fourteenth amendment.

"Liberty interests protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 467 (1982). If state statutes are written with "explicitly mandatory language in connection with requiring specific substantive predicates," then the statute provides a protected liberty interest. Id. at 472. Mere procedural requirements for ensuring fair proceedings, however, even if mandatory, do not necessarily create a constitutionally protected liberty interest. Bonner v. Lewis, 857 F.2d 559, 564 (9th Cir. 1988).

While the Oregon administrative rules are written with mandatory language requiring the use of certain procedures during disciplinary hearings, these rules do not require hearing officers to reach a particular result upon the finding of specific substantive predicates. See Kentucky Dept. of Corrections v. Thompson, 109 S. Ct. 1904, 1910 (1989). Instead, these rules dictate inmates' and prison officials' conduct during disciplinary hearings and allow prison officials to retain some discretion. As such, they do not create due process liberty interests protected under the Civil Rights Act. See Monahan v. Wolff, 585 F. Supp. 1198, 1201 (D. Nev. 1984).

We need not consider Gomez' argument that the hearing officer erred in refusing to require Herl's attendance as a witness at the formal disciplinary hearing. Gomez failed to comply with the rules for calling witnesses. These are procedural rules which do not implicate any protected liberty interest under the Constitution.

Gomez bases his equal protection claim on the assertion that he is a transsexual with an effeminate personality, and as such he is a member of a suspect class entitled to equal protection under the fourteenth amendment. This argument lacks merit.

We have held "that homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny under the equal protection component of the Due Process Clause." High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). Transsexuals are not a suspect class either. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977). Thus, the district court did not err in rejecting Gomez' equal protection claim.

AFFIRMED.