Unpublished Disposition, 878 F.2d 385 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 385 (9th Cir. 1989)

Michael E. DONATI, Plaintiff-Appellant,v.Henry RISLEY, Warden, Defendant-Appellee.

No. 87-4234.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 5, 1989.Decided June 22, 1989.

Before GOODWIN, Chief Judge, and EUGENE A. WRIGHT and WILLIAM A. NORRIS, Circuit Judges.


We affirm the district court's dismissal of a pro se prisoner's civil rights complaint of a due process violation because his security reclassification hearing did not address his loss of employment.

Donati, a Montana state prisoner, had a prison job and was classified as low security. In 1985 he traveled voluntarily out of the state to testify in a detainer action. It resulted in his receiving an additional 10-year prison sentence. Because of that sentence, Montana prison officials reclassified him into a higher security level. This prevented him from retaining his previous job. His civil rights action under 42 U.S.C. § 1983 claimed a violation of due process for lost wages and lost good time credit.

We review de novo a dismissal for failure to state a claim for relief. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). Because Donati is pro se and alleges a civil rights violation we construe his pleading liberally and afford him any benefit of the doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc).

Donati received due process. He claims protection under the Fourteenth Amendment for a property interest in lost wages and a liberty interest in lost good time credit. He contends his reclassification hearing deprived him of due process because it did not address the loss of his job. A decision by prison officials to reclassify Donati to less amenable and more restrictive quarters needs only an informal, nonadversary hearing to provide due process. Hewitt v. Helms, 459 U.S. 460, 476 (1983). Prison officials had only to inform Donati of the reason for his reclassification and allow him to present his views. Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

The record supports the magistrate's statement and conclusion:

The documents defendants submitted in support of their motion to dismiss show that plaintiff participated in a classification hearing and that the reason for the increase was his additional sentence in Virginia. The additional sentence rendered plaintiff ineligible for his former classification.

Donati can prove no set of facts in support of his due process claim that would entitle him to relief.1 


WILLIAM A. NORRIS, Circuit Judge, dissenting:

I respectfully dissent. I do not believe that the record as it now stands supports the majority's holding that Donati had a fair opportunity to express his views about the loss of his prison job. I would vacate and remand with instructions that Donati be given an opportunity to proffer evidence as to what in fact occurred at the reclassification hearing.


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


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


Donati also challenges the magistrate's order suspending discovery pending the court's ruling on its recommendations. We review for abuse of discretion, Hatch v. Reliance Insurance Co., 758 F.2d 409, 416 (9th Cir.), cert. denied, 474 U.S. 1021 (1985), and find that the magistrate acted wholly within his discretion under Fed. R. Civ. P. 26