Unpublished Disposition, 875 F.2d 318 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 318 (9th Cir. 1989)

No. 88-2817.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and NOONAN, Circuit Judges, and RONALD S.W. LEW, District Judge.** 

MEMORANDUM*** 

Appellant Komsky, an inmate at the Federal Correctional Institution in Stafford, Arizona, was found guilty in disciplinary proceedings of having assaulted a fellow inmate. The Institutional Disciplinary Committee (IDC) imposed sanctions of (1) forfeiture of 100 days of statutory good time, (2) withholding statutory good time for the month of March 1987, and (3) recommendation of a disciplinary transfer.

Komsky filed a petition for a writ of habeas corpus in the district court under 28 U.S.C. § 2241 et seq., alleging that he was denied access to legal materials and non-confidential investigative information prior to the disciplinary hearing, in violation of due process.

Komsky maintains that an adequately prepared defense to the disciplinary charge would have led to a finding of "fighting," with a maximum forfeiture of 60 days or 50% of the prisoner's statutory good time (whichever is less), rather than "assault," with forfeiture of 100% of accrued good time plus preclusion of further good time credits. See 28 C.F.R. Sec. 541.13, Table 3.

The district court held that "the law does not afford a prisoner at a disciplinary hearing the full panoply of rights that constitute due process for a criminal trial. Wolff v. McDonnell, 418 U.S. 539 (1974). The petitioner in the present case has not shown that he was deprived of any of the due process elements which the Supreme Court has found applicable in prison disciplinary proceedings."

This court agrees with the conclusion of the district court: Due process does not require that every prisoner facing disciplinary sanctions has a right of access to legal materials for the preparation of a defense. The U.S. Supreme Court has identified a "fundamental constitutional right of access to the courts," which includes access to adequate law libraries. Bounds v. Smith, 430 U.S. 817, 828 (1977) (emphasis added). The Court's "main concern" in that case was "protecting the ability of an inmate to prepare a petition or complaint." Id. at 828 n. 17 (quoting Wolff v. McDonnell, 418 U.S. 539, 576 (1973)). Prison disciplinary hearings do not partake of the formality of court proceedings, and the rights accorded under the rubric of due process are accordingly fewer. Zimmerlee v. Keeney, 831 F.2d 183 (9th Cir. 1987), cert. denied, 108 S. Ct. 2851 (1988).

Komsky argues that Federal Regulations pertaining to prisoners' access to legal materials do not distinguish between court cases and internal proceedings within the prison. The answer to this contention is that due process is not defined by the Code of Federal Regulations. Further, those Regulations allow the Warden to limit access to legal materials for prisoners in segregation upon "consideration of the needs of other inmates and the availability of staff and other resources." 28 C.F.R. Sec. 543.11(j). Komsky's lack of access to legal materials was due to the fact that he was segregated off-site at the Gila County Jail. This court is not prepared to hold that the lack of legal materials at the county jail is a violation of due process or the Federal Regulations. Since Komsky's other arguments pertain to matters of law only, there is no need for an evidentiary hearing.

Komsky does not contend that there was insufficient evidence to sustain the charge of assault. The findings of the IDC cannot be disturbed on that basis. See Zimmerlee, 831 F.2d at 186 (findings upheld if "some evidence" supports the decision of the IDC).

Finally, Komsky's claim that prison officials withheld nonconfidential reports from him provides no basis for relief. There is substantial indication in the record that Komsky did not request the reports before the disciplinary proceeding. More fundamentally, Komsky did not exhaust the administrative remedies within the prison appeals system with regard to this claim. That failure placed the claim beyond the jurisdiction of the district court. Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985).

AFFIRMED.

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

 **

Honorable Ronald S.W. Lew., United States District Judge for the Central District of California, sitting by designation

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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