Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

Scott C. Smith, a Washington state prisoner, appeals pro se the district court's grant of summary judgment in favor of the defendants in his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand for further proceedings.

We review a district court's grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

In his complaint, Smith alleged that he was not accorded the procedural protections of Hewitt v. Helms, 459 U.S. 460 (1983), in being placed in administrative segregation. He also alleged that his administrative segregation hearing violated due process because the hearing officer was not impartial. The defendants argued that because Smith had no state-created liberty interest in remaining in the general prison population, he could not state a due process violation, and moved for summary judgment on that basis.

The parties consented to have the case tried before a magistrate. Smith filed an opposition to defendants' summary judgment motion, accompanied by an affidavit. In his opposition, Smith argued that he was entitled to, but did not receive, the protections accorded by the Washington Administrative Code (WAC), as well as those in Hewitt. In his affidavit, Smith alleged that defendant Kropf was not an impartial decisionmaker, listing several specific reasons to support his allegation.

In its decision, the district court found that the WAC contained language of a mandatory character sufficient to create a protected liberty interest in remaining in the general prison population. The court then determined that the defendants complied with the WAC provisions and, there being no issues of material fact in dispute, granted summary judgment in favor of defendants.

Smith filed a timely appeal raising only one issue: whether he was denied due process because the administrative segregation hearing officer was not impartial.¹  Although in a prison setting the decisionmaker need not come from outside the prison, see Vitek v. Jones, 445 U.S. 480, 496 (1980), an impartial decisionmaker is a fundamental requirement of due process, see, e.g., Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (stating that a "neutral and detached" hearing body is a minimum requirement of due process). The district court did not address this issue, however, even though it was raised by Smith in his pleadings. Thus, we remand this case to the district court for the limited purpose of considering the issue of the impartiality of the administrative segregation hearing officer.² 

VACATED and REMANDED, with instructions.