Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1985)

MEMORANDUM^** 

The pro se plaintiff, Victor Rabago, an inmate at the Arizona State Prison Complex at Florence, brought a 42 U.S.C. § 1983 action against certain prison officials. He alleged that these defendants had used excessive force against him six times. He also alleged deprivations of his liberty interest without due process of law: specifically, his confinement to isolation, loss of good time credits and the manner in which his disciplinary hearing were conducted. He sought varying relief, including restoration of lost good time credits, expungement of certain disciplinary actions from his record, and reprimands to certain prison guards. After a trial, the district court ruled that the plaintiff's evidence failed to establish that the violations of which he complained rose to the level of constitutional violations. The court then entered judgment for defendants from which the plaintiff appeals. We affirm the district court's judgment.

DISCUSSION

The six incidents of which plaintiff complains occurred on November 1, 1983; June 25, 1984; October 6, 1984; October 8, 1984; December 11, 1984; and March 25, 1985. The district court correctly dismissed the November 1, 1983 incident because it was moot; the plaintiff complained about actions of the disciplinary committee that had been reversed and which had not been included in his file. The court correctly dismissed the October 6, 1984 incident because the plaintiff alleged only verbal threats or abuse from a prison guard. Allegations of being threatened with bodily harm fail to state a constitutional cause of action. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1986). This places our focus upon the remaining four incidents.

The use of excessive force constitutes a violation of the Eighth Amendment. Spain v. Procunier, 660 F.2d 189, 194 (9th Cir. 1979). To determine whether the force used is excessive a court should consider four factors: first, the need for the application of force or retaliation; second, the relationship between the need and the amount of force used; third, the extent of the injury inflicted; and fourth, whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Gaut, 810 F.2d at 924 (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.), cert. denied, 414 U.S. 1033 (1973)).

Our application of these factors to the facts of these incidents show that the defendants did not use excessive force. When ordered to do something by a guard, the plaintiff would respond with abusive language, spitting, slapping, or simply refusing to do what he was told. After plaintiff exhibited such behavior, the defendants took measures that they deemed necessary in order for plaintiff to conform to the required conduct. "Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Whitley v. Albers, 475 U.S. 312, 322 (1986), quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979).

The force, if any, used on these occasions was for the purpose of attempting to maintain reasonable discipline within the prison. The amounts of force used were only such as were necessary under the circumstance. On these occasions, the defendants were attempting to retrieve a notary seal that plaintiff had taken, escort a group of prisoners including plaintiff to the dining hall, ascertain what item the plaintiff had placed under his shirt, or transfer plaintiff to a different unit. Prior to exerting force, the defendants requested plaintiff to comply voluntarily with the standards of conduct appropriate to the circumstances. No evidence showed that the force was applied maliciously or sadistically, with an intent to cause harm. No evidence showed that plaintiff received any injuries or required any medical treatment during or following any of the instances of which he complains. Therefore, plaintiff has not met his burden of proof in attempting to establish that the force used was excessive.

The plaintiff also complains of unfair treatment during his disciplinary hearings and loss of good time credits. Arizona law has created a liberty interest in receipt of good time credits. McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986). When state law creates a liberty interest in the receipt of good time credits, the inmate is entitled to due process. Due process entitles the inmate to: 1) advance notice of the charges, 2) an opportunity to call witnesses (when consistent with institutional safety and correctional goals), and 3) a written statement by the factfinder of evidence on and the reasons for the disciplinary action. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 422 U.S. 445, 454 (1985), citing Wolff v. McDonnell, 418 U.S. 539, 563 (1974).

The defendants produced evidence that the plaintiff received notice of the charges against him, a hearing on each charge, and notification of the findings of the disciplinary committee with reasons for their decisions. Substantial evidence supported each of the disciplinary committee's decisions. Plaintiff appealed each of the findings and they were upheld. Therefore, plaintiff's claims regarding the manner of conducting the disciplinary hearing and the loss of good time credits must fail.

CONCLUSION

Plaintiff's evidence in support of his claims did not establish that the events of which he complained rose to the level of a constitutional violation. Therefore the trial court did not err in rendering judgment in favor of defendants.

AFFIRMED.