Unpublished Disposition, 878 F.2d 388 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 388 (9th Cir. 1988)

Ronald L. WULFERDINGER, Petitioner-Appellant,v.Richard H. RISON, Warden, et al., Respondents-Appellees.

No. 88-6006.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 5, 1989.Decided June 19, 1989.

Before HUG, CYNTHIA HOLCOMB HALL and WIGGINS, Circuit Judges.


MEMORANDUM** 

Ronald L. Wulferdinger appeals the denial of his petition for a writ of habeas corpus. He contends that the district court erred in failing to conduct an evidentiary hearing to resolve factual disputes and in concluding that he had not exhausted administrative remedies to expunge certain information from his prison records. We affirm.

BACKGROUND

In July 1985 Wulferdinger began serving a seven year sentence at the Federal Correctional Institution at Texarkana, Texas. In July 1986 the FBI informed Texarkana prison officials that a confidential informant had revealed that Wulferdinger possessed handguns. The FBI also identified Wulferdinger as a member of a prison gang involved in drugs and extortion. Prison officials placed Wulferdinger in administrative detention pending an investigation of these charges. A complete search of the prison failed to uncover any weapons. On August 21, 1986, Wulferdinger was transferred to the United States Penitentiary at Lompoc, California.

Wulferdinger then pursued administrative remedies under 28 C.F.R. Secs. 542.10-542.16 (1988) to contest his transfer to Lompoc and the loss of an opportunity to earn good-time credit while in administrative detention. He also requested that all information obtained from the confidential informant be expunged from his prison records. On November 3, 1987, Wulferdinger filed this habeas petition. On March 14, 1988, the district court dismissed the petition with prejudice, finding that Wulferdinger was not entitled to a hearing prior to his transfer to Lompoc and that he had not exhausted his administrative remedies as to his expungement request. Wulferdinger timely appealed. We have jurisdiction under 28 U.S.C. § 1291 (1982).

DISCUSSION

The denial or dismissal of a petition for a writ of habeas corpus is reviewed de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).

* Wulferdinger essentially argues that the district court should have conducted an evidentiary hearing to determine whether the information supplied by the confidential informant was true because his administrative detention and transfer to Lompoc were premised on this information. He contends that without an opportunity to contest the veracity of this information, his detention and transfer violate due process. We disagree.

A federal prison warden is authorized to place an inmate in administrative detention when his continued presence in the general prison population poses a serious threat to the security or operation of the prison. 28 C.F.R. Sec. 541.22(a) (1988). Such detention is appropriate if the inmate is being investigated for violation of institution regulations or awaiting transfer. Id. Sec. 541.22(a) (2), (4). The prison officials at Texarkana clearly acted within this authority when they placed Wulferdinger in administrative detention after receiving information that he possessed handguns. Texarkana officials immediately began an investigation of this charge and then arranged for Wulferdinger's transfer to Lompoc. The detention was proper regardless of whether handguns were ultimately found.

"As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution," a prisoner is not entitled to a hearing regarding his transfer from one prison to another, even if the transfer "may be labeled disciplinary or punitive." Montanye v. Haymes, 427 U.S. 236, 242 (1976). Wulferdinger does not allege that the conditions of confinement at Lompoc violate the terms of his sentence or the Constitution. Rather, he alleges that the transfer is improper if based on erroneous information and therefore the district court should have held an evidentiary hearing to determine the veracity of the confidential informant's information. A hearing, however, is not required under these circumstances. See id.

B

Wulferdinger disputes the district court's finding that he failed to exhaust administrative remedies as to his expungement request. Although he requested expungement throughout the prisoner administrative appeal process under 28 C.F.R. Secs. 542.10-542.16, the proper procedure to correct agency records such as Wulferdinger's prison records is to request correction from the agency maintaining the record. 28 C.F.R. Sec. 16.50 (1988). Wulferdinger has not pursued this remedy. The district court properly concluded that Wulferdinger has failed to exhaust his administrative remedies.

CONCLUSION

The judgment of the district court is AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 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 9th Cir.R. 36-3