Unpublished Disposition, 878 F.2d 386 (9th Cir. 1983)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1983)

No. 87-4218.

United States Court of Appeals, Ninth Circuit.

Malcolm F. Marsh, U.S. District Judge, Presiding.

Before BROWNING and FLETCHER, Circuit Judges, and LYNCH,**  District Judge.

MEMORANDUM*** 

A state prisoner in Oregon, McClure appeals pro se the district court's grant of summary judgment to the defendants in this Sec. 1983 case. We affirm.

* On August 15, 1983, McClure was charged with violating the prison's Disciplinary Rule 9, which states that " [n]o inmate shall direct hostile, abusive, or threatening ... language or gestures toward another person." After disciplinary proceedings, McClure was sanctioned with disciplinary segregation for nineteen days. The hearing officer based his decision on the following finding:

1. On August 15, 1983, Tower Officer Beckwith did hear the following statement made to him (Officer Beckwith): 'Hey man, put that gun down or stick it up your ass, you asshole'.

2. Investigation revealed that Inmate McClure and Nelson were in the vicinity where the statement was made, with no other inmates within 30 feet. Officer Beckwith alleged that Inmate McClure was the responsible party due to eye contact being made with Inmate McClure. He eliminated Inmate Nelson because Officer Beckwith is familiar with Inmate Nelson's voice.

3. Based upon the totality of information presented, the Hearing Officer deems it reasonable to conclude that Inmate McClure did, in fact, make the abusive and derogatory statement to Officer Beckwith.1 

McClure appealed the hearing officer's decision to the Oregon Court of Appeals, which affirmed without opinion.

McClure subsequently filed a Sec. 1983 action in federal court, contending that his right to due process was violated in the disciplinary proceeding. The gist of his constitutional claim is that there was insufficient evidence to support the hearing officer's finding; Beckwith's sworn statement was false; and the hearing officer failed to articulate adequately the reasons for his decision.

In granting the defendants' motion for summary judgment, the district court explained that the doctrine of collateral estoppel barrs McClure from relitigating the issues of whether the hearing officer's decision was supported by the evidence and whether Beckwith's statement was false. In addition, the district court held that the hearing officer's decision was sufficiently specific. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the grant of summary judgment de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983).2 

II

As the district court noted, there is apparently no Oregon case law addressing the question whether "an issue determined by a state appellate court exercising its power of administrative review, and therefore not applying de novo review, should be given preclusive effect in a subsequent action." The district court persuasively reasoned that, since the United States Supreme Court has held that it is well-established that a judicial affirmance of an administrative determination is entitled to preclusive effect, it is probable that the Oregon Supreme Court would also adopt this view.

McClure argues that the affirmance of the Oregon Court of Appeals should not be accorded preclusive effect because he was denied a fair and full opportunity to litigate his Rule 9 case. In Kremer v. Chemical Construction Co., 456 U.S. 461, 482 (1981), the Court held that, although federal courts may not employ their own rules of res judicata in determining the effect of state judgments, " [a] State may not grant preclusive effect in its own courts to a constitutionally infirm judgment, and other state and federal courts are not required to accord full faith and credit to such a judgment." McClure contends that the Oregon Court of Appeals decision is constitutionally infirm because McClure was denied effective assistance of counsel. According to McClure, his counsel was ineffective in that he failed to ask the Oregon Court of Appeals to supplement the incomplete record that the disciplinary board forwarded to the Oregon Court of Appeals.

Everyone agrees that the record before the Oregon Court of Appeals was incomplete. According to the applicable court rules, an agency must transmit the entire administrative record to the reviewing court unless the parties have designated less than the entire record as the record for judicial review (which was not the case here). Rule 5.15(1), Oregon Rules of Appellate Procedure. See also Rule 5.30 ("Judicial review of orders in disciplinary cases ... shall be in accordance with the rules for judicial review of orders of state agencies in contested cases."). The record before the Oregon Court of Appeals omitted two probative documents that were before the disciplinary board: the affidavit of inmate Larry Nelson and the affidavit of inmate Kenneth McKenzie. Nelson's affidavit states that he was with McClure and McKenzie at the time the offensive remark was allegedly made; that he did not "hear inmate McClure use any disrespectful words or actions toward Officer Beckwith at all"; and that he never "had occasion to talk to Officer Beckwith prior to the weekend of August 29, 1983. This was after the incident which happened on August 15, 1983. I have never had a reason to talk to Officer Beckwith, so I can't understand how he should know what I sound like, unless he believes all black men sound the same. Inmate McClure is white." McKenzie's affidavit states that McKenzie, Nelson, and McClure "were standing in a group conversing among ourselves when the alleged incident happened" and that "Inmate McClure never did yell anything disrespectful at the officer."

Since the basis for McClure's challenge to the Oregon Court of Appeals' affirmance was ineffective assistance of counsel, the district court properly relied on Strickland v. Washington, 467 U.S. 1267 (1984). In Strickland, the Court explained that a court should hold that a defendant was denied effective assistance of counsel only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Court noted that, while " [i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding," "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693.

The district court concluded that McClure failed to demonstrate that there is a reasonable probability that the outcome of his case would have been different had McClure's counsel asked the Oregon Court of Appeals to supplement the record. The district court reasoned that Strickland 's prejudice requirement had not been met, since the Oregon Court of Appeals review disciplinary decisions only for "substantial evidence". The two prison officers' affidavits in evidence (Beckwith's, Myers'), despite the contrary evidence, were sufficient evidence to support the hearing officer's decision. See Bonney v. Oregon State Penitentiary, Cor. Div., 519 P.2d 383 (Or.App.1974) (courts review disciplinary decisions for "substantial evidence"). Where there is reasonable evidence supporting the administrative agency's finding, Oregon law requires a reviewing court to uphold the agency's findings even though there is also strong evidence in the record suggesting that the findings are incorrect. See, e.g., Brown v. Adult & Family Services Division, 705 P.2d 236, 238 (Or.App.1985) (citation omitted) (holding that substantial evidence means " 'any reasonable evidence' "); Oregon Shores v. Oregon Fish and Wildlife, 662 P.2d 356, 364 (Or.App.1983) (holding that administrative decision was supported by substantial evidence where the evidence was "conflicting"); Eastep v. Veterinary Examining Board, 539 P.2d 1144, 1145 (Or.App.1975) (in reviewing an administrative decision, " [i]i is not for [the court] to weigh the evidence when, as here, there is conflicting evidence.") See also Oregon Revised Statutes 183.482(7) ("the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion"). We conclude that Beckwith's and Myers' affidavits are "reasonable evidence" of McClure's guilt. Since there was reasonable evidence of McClure's guilt in the administrative record, we conclude that there is no reasonable probability that the Oregon Court of Appeals would have reversed had it had the benefit of a complete record.

2. Statement of Reasons for Disciplinary Action

In Wolff v. McDonnell, 418 U.S. 539, 564 (1973) (citation omitted), the Supreme Court held that the due process clause requires a " 'written statement by the factfinders as to the evidence relied on and reasons' for the disciplinary action." McClure contends that the hearing officer's decision failed to meet Wolff 's requirement. In fact, the hearing officer's report (reproduced in relevant part above) clearly sets forth the evidence and reasons relied upon for the disciplinary sanction.

We affirm the decision of the district court in all respects.

 *

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

 **

Hon. Eugene F. Lynch, United States District Judge for the Northern District of California, sitting by designation

 ***

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

 1

Prison officer Myers also stated that there were only two inmates in the area where the statement was made

 2

McClure also seeks to appeal the district court's denial of his motion for summary judgment. As the defendants suggest, the denial of summary judgment is not normally appealable. This case does not fall into the limited exception to the general rule that denials of summary judgment are not appealable. See Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985) (creating an exception for qualified immunity cases to the general rule that denials of summary judgment are not appealable)