Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1990)

Gerald E. ROGERS, Plaintiff-Appellant,v.John SLANSKY, Warden, of Nevada State Prison, Max Neuniker,Ron Rosnaugh, W.R. Belliville, John and Jane Does1 through 10, et al., Defendants-Appellees.

No. 89-15302.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 1, 1989* .Decided Feb. 7, 1990.

Before BROWNING, KOZINSKI and RYMER, Circuit Judges.


MEMORANDUM** 

Gerald E. Rogers, a Nevada state prisoner, appeals pro se from the district court's summary judgment and dismissal of his civil rights action against prison officials. Rogers claimed he was deprived of constitutional due process in connection with a disciplinary hearing and subsequent segregation time and revocation of good time credits.

Rogers only generally alleged a conspiracy to violate his constitutional rights. He did not make the factual showing to support his allegations which is necessary to withstand a motion for summary judgment. See Buschi v. Kirven, 775 F.2d 1240, 1248-49 (4th Cir. 1985).

Nor did the court err in finding that appellees did not deny Rogers the opportunity to call witnesses. Rogers was not arbitrarily denied the opportunity to call witnesses, see generally Ponte v. Real, 471 U.S. 491 (1985); rather, the proffered witnesses were unnecessary in light of a stipulation that their testimony would be favorable to Rogers. Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (an inmate has only a qualified right to call witnesses at a disciplinary hearing).

Summary judgment was also properly granted on Rogers' claim that the evidence presented at the hearing was insufficient to find him guilty. Courts will uphold a prison disciplinary board if there is "some evidentiary basis" for the decision, Superintendent v. Hill, 472 U.S. 445, 455 (1985), that has "some indicia of reliability." Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). Here, the disciplinary committee based its decision on an extensive investigation by prison officials. Rogers offered no contradictory evidence.

Because no due process violations occurred at the hearing, summary judgment was appropriate on the claim that appellees unconstitutionally revoked 130 days of good time credits. Likewise, the court properly granted summary judgment against Rogers on his claim that the segregation resulting from the unconstitutional hearing was cruel and unusual punishment. Appellees followed proper constitutional procedures in sentencing Rogers to segregation, therefore only the subsequent "unnecessary and wanton infliction of pain" would support an Eighth Amendment claim. Whitley v. Albers, 475 U.S. 312, 319 (1986). Rogers presented no evidence of such treatment.

Because we uphold the district court's summary judgment for appellees, we need not address the issue of whether all defendants were personally involved in the challenged conduct.

AFFIRMED.

 *

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