Unpublished Disposition, 852 F.2d 571 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 852 F.2d 571 (9th Cir. 1988)

Robert L. GUINN, Petitioner-Appellant,v.J.C. KENNEY, Superintendent, Oregon State Penitentiary,Respondent-Appellee.

No. 87-3895.

United States Court of Appeals, Ninth Circuit.

Submitted June 22, 1988.* Decided July 12, 1988.

Before JAMES R. BROWNING, HUG and BEEZER, Circuit Judges.


MEMORANDUM** 

Robert L. Guinn, an Oregon state prisoner, appeals from a district court's order denying his petition for habeas corpus relief under 28 U.S.C. § 2253 (1982). A prison hearings officer found Guinn had attacked and stabbed another inmate and one year in disciplinary segregation was recommended; the superintendent increased the sanction to two years' disciplinary segregation. Guinn contends that the disciplinary hearings officer's failure to make explicit findings concerning the reliability of an informant violated due process. Guinn also contends that the prison superintendent unconstitutionally increased Guinn's administrative segregation sentence to two years.

To comport with the due process clause, the findings of a prison disciplinary hearings officer must be supported by "some evidence in the record." Superintendent v. Hill, 472 U.S. 445, 454 (1985). The standard is met if there is any evidence in the record that could support the hearings officer's conclusion. Id. at 455; Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). Although a court reviewing the record should not make its own assessment of the credibility of the witnesses, Hill, 472 U.S. at 455, there must be some indicia of the witness's reliability. Cato, 824 F.2d at 705.

A prison's reliance upon an unidentified inmate satisfies due process when (1) the record contains some factual information from which it can be reasonably concluded that the information was reliable, and (2) the record contains a prison official's affirmative statement that safety considerations prevent disclosure of the informant's name. Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987).

According to the hearings officer's report, the victim of the attack was jogging when he was hit in the face by another inmate. The victim was then pushed and hit by a number of inmates, including Guinn. The state police investigation revealed that two inmates observed the incident and made "mutually consistent statements" implicating Guinn as the individual responsible for the assault with a weapon. The hearings officer deemed the police report confidential in order to protect "the safety and well-being of the inmate witnesses."

Because the hearings officer indicated that revealing the witnesses' names would jeopardize their safety, the report satisfied the second component of the informant reliability test. See Zimmerlee, 831 F.2d at 186. As to the first component, this court has ruled that reliability may be established by corroborating testimony. See id. at 186-87. Although both witnesses were deemed confidential, their mutually consistent statements provide sufficient corroboration to satisfy the due process clause. See id. at 186 (" [r]eview of both the reliability determination and the safety determination should be deferential"). Both witnesses had firsthand knowledge of the assault. See cf. Cato v. Rushen, 824 F.2d at 705 (reliance upon informant without firsthand knowledge insufficient). Accordingly, because the confidential informants' statements were corroborated, the statements were sufficiently reliable to satisfy the due process clause.

Guinn contends that the prison superintendent lacked authority to increase the prison committee's one-year recommendation to two years. Guinn further argues that because the superintendent was without statutory authority to increase the disciplinary sentence, the increase violates the double jeopardy clause and the due process clause. These contentions lack merit.

Under Oregon law, the superintendent "may enforce obedience to the rules for the government of the inmates in the institution ... by appropriate punishment...." Or.Rev.Stat. Sec. 421.105(1) (1987). Under the administrative rules in effect at that time, a hearings officer or disciplinary committee could recommend a sanction of up to one year of segregation for assault with a deadly weapon. Or.Admin.R. 291-105-051. The administrative rules also provided that the superintendent could increase the recommended sanction. Or.Admin.R. 291-105-069(3) (d).

The superintendent's increase of the sanction recommendation for Guinn from one year to two years' segregation was allowable under Or.Admin.R. 291-105-069(3) (a). In increasing the sanction, the superintendent noted Guinn's history of assaultive behavior, and the necessity to deter Guinn and other inmates from "engaging in such assault in the future." Further, there is no indication that the sanction imposed is without penological justification. See Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion). The superintendent explicitly indicated that the increase in penalties was due to Guinn's past record at the institution and because of the need to deter other inmates. Accordingly, because the superintendent was statutorily authorized to impose the sanction and due process was not violated, the district court did not err in granting summary judgment.

AFFIRMED.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3