Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

MEMORANDUM^** 

Steven R. Grayson appeals the district court's grant of summary judgment in favor of the defendants-appellees in his action for damages under Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388 (1971). This court has jurisdiction over this appeal from the final disposition of a case under 28 U.S.C. § 1291.

In his complaint below, appellant alleged that the appellees, various officials at the Lompoc Federal Prison Camp in Lompoc, California, violated his constitutional rights through actions they took against him while he was an inmate. He complains that he was unlawfully subjected to discipline in retaliation for his exercise of his first amendment rights.

There is no dispute that the appellant was placed in administrative segregation and was ultimately transferred to another institution, and that he lost 50 days of good time credits. The principal argument between the parties concerns the exact nature of the conduct that precipitated the disciplinary action. Grayson claims that he was punished for advocating the use of administrative procedures through which inmates could seek redress of grievances. The appellees, on the other hand, claim that there was enough evidence to support the disciplinary committee's finding that Grayson had engaged in disruptive behavior sufficient to warrant the actions taken against him.

STANDARD FOR SUMMARY JUDGMENT

In a Bivens action, federal officials acting within the scope of their discretionary functions are entitled to summary judgment on the grounds of qualified immunity "unless the plaintiff's allegations state a claim of violation of clearly established law." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). If the appellees could reasonably have believed that their actions were lawful, the complaint fails this threshold test. See Anderson v. Creighton, 483 U.S. 635, 641 (1987). The dispute thus turns on whether it should have been clear to the appellees that their actions violated Grayson's established rights. If those actions deprived Grayson, without due process, of a liberty interest to which he had an entitlement, or if they were taken in retaliation for Grayson's exercise of his constitutional rights, the appellees are not entitled to summary judgment on the grounds of immunity.

THE NATURE OF THE INTEREST AT STAKE

The Supreme Court has squarely held that, unless a statute specifically creates a protected liberty interest in avoiding administrative segregation, the imposition of such segregation does not violate a prisoner's constitutional rights. Hewitt v. Helms, 459 U.S. 460 (1983). Such a protected interest is created only where a statute or regulatory scheme sets up mandatory procedures governing the imposition of such segregation. Id. at 476. The federal system of classification and treatment of prisoners does not impose such limits on prison officials' discretion to restrict a prisoner's privileges. See 18 U.S.C. § 4081. Thus, the placement of Grayson in administrative segregation did not violate his clearly established rights.

Similarly, there is no constitutionally protected liberty interest in remaining in the same prison in which one was originally incarcerated. Olim v. Wakinekana, 461 U.S. 238 (1983) (transfer of prisoner from Hawaii to California does not violate a constitutionally protected liberty interest); Meachum v. Fano, 427 U.S. 215, 226-28 (1976) (transfer to a less favorable facility without proof of misconduct does not violate any constitutionally protected liberty interest). Federal law provides that a prisoner may be transferred from one facility to another at any time. 18 U.S.C. § 3621. Thus, Grayson similarly had no established right to remain at the Lompoc Prison Camp.

A prisoner does have a protected liberty interest in the good time credits he has earned where a statute specifically creates such an interest. Superintendent v. Hill, 472 U.S. 445 (1985). The federal law in effect at the time of the disciplinary action against Grayson did provide such an entitlement. See 18 U.S.C. § 4161. In 1984, that statute was repealed; however, the particular provisions giving rise to the entitlement to good time credits were to remain effective for five years after that repeal. See 18 U.S.C. § 3551. Since the actions forming the basis of this lawsuit took place in 1984, there is no question that the entitlement was still in effect at the relevant time.

Even where there is a statutory entitlement to good time credits, they may readily be revoked as long as there is "some evidence" to support the decision to do so. Hill, 472 U.S. at 457. Eyewitness testimony from a prison official that would support the inference that the prisoner was engaged in disruptive or dangerous behavior suffices to meet this standard. Id. Here, where a prison official filed a report complaining of Grayson's disruptiveness and specifying the ways in which he undermined the officials' authority through insolence, abusive language and instigation of arguments, the decision to revoke the good time credits is supported by "some evidence." Thus, the appellees did not violate any clearly established right of Grayson's in revoking his good time credits.

THE CLAIM OF RETALIATION

The only issue remaining is whether, although the appellees could have deprived Grayson of the interests at stake for virtually no reason, it is nevertheless impermissible for them to deprive him of these interests in retaliation for the act in question. If, in fact, Grayson's behavior was protected by the first amendment, to punish him for it in any way would violate his constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597 (1972) (even where one has no entitlement to a benefit, one cannot be deprived of it in retaliation for the exercise of constitutional rights).

Assuming that Grayson had a first amendment right to express his dissatisfaction with the prison and its officials, that right was properly circumscribed by any restrictions that reasonably related to legitimate penological interests. Thornburgh v. Abbott, 109 S. Ct. 1874 (1989). Under this standard, prison officials have broad discretion to deter threats to the security of the institution. Id. Where, as here, there is a reasoned determination that the behavior in question went beyond mere speech and rose to the level of disruptive action, it cannot be said that the disciplinary action taken in response to that behavior violated clearly established rights. Grayson might take issue with the accuracy of the disciplinary committee's findings or its conclusions as to the appropriate remedy. He cannot, however, successfully show that any of the inaccuracies to which he may point rise to the level of a violation of clearly established rights.

CONCLUSION

Since Grayson had no clearly established right to the liberties of which he was deprived, and since the procedures that the appellees provided in their disciplinary actions against Grayson led to a fair determination that his behavior was disruptive, the appellees could reasonably have held the belief that the actions that they took against Grayson were lawful. This reasonable belief entitles them to immunity from suit. Anderson v. Creighton, 483 U.S. 635, 641 (1987). They were therefore entitled to summary judgment. Mitchell v. Forsyth, 472 U.S. 511 (1985).

AFFIRMED.