Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1988)

James Lee PINKERTON, Petitioner-Appellant,v.Lawrence KINCHELOE, Warden, Respondent-Appellee.

No. 90-35584.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991.* Decided May 13, 1991.

Before JAMES R. BROWNING, GOODWIN and POOLE, Circuit Judges.


MEMORANDUM** 

James Lee Pinkerton, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2241 habeas corpus petition. Pinkerton asserts he was denied due process in connection with administrative and disciplinary action taken against him in 1988 when he was a boarder at the Washington State Penitentiary.117 We review de novo, Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987), and affirm.

On May 14, 1988, Pinkerton was placed into administrative segregation due to an incident earlier that day when he threatened a food service worker and refused to leave the dining room. That day, Pinkerton was served with a copy of the segregation authorization form, which set out the reasons for his placement in segregation. On May 16, 1988, he was given notice of a disciplinary hearing concerning the incidents to be conducted on May 18, 1988. On May 18, the disciplinary hearing was held, and Pinkerton was found guilty of the charged infractions.

On May 19, 1988, Pinkerton was notified that an administrative segregation hearing would be held on May 23, 1988. On May 23, the hearing was held, and the hearing officer ordered Pinkerton retained in administrative segregation because he was a threat to the operation, security, and safety of the prison, staff, and inmates. Pinkerton eventually was released from administrative segregation in September 1988.

* Pinkerton contends that he was denied due process when prison officials placed him in administrative segregation on May 14, 1988 without conducting a pre-segregation hearing. Pinkerton also contends that the May 23, 1988 administrative segregation hearing violated his right to due process because he was not given prior notice of the specific charges against him. These contentions lack merit.

[W]hen prison officials initially determine whether a prisoner is to be segregated for administrative reasons due process requires the following procedures: Prison officials must hold an informal nonadversary hearing within a reasonable time after the prisoner is segregated. The prison officials must inform the prisoner of the charges against the prisoner or their reasons for considering segregation. Prison officials must allow the prisoner to present his views.

Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

Here, an informal hearing was held on May 23, 1988, nine days after Pinkerton was placed in administrative segregation. Pinkerton was notified of the date of the hearing and of the specific reasons for his placement in segregation. Furthermore, Pinkerton was afforded the opportunity to attend the hearing and testify on his own behalf, which he waived. Accordingly, Pinkerton received all the process mandated by the Constitution. See Toussaint at 1101.219

II

Pinkerton also contends that his due process rights were violated at the disciplinary hearing held on May 18, 1988 because (1) he was not permitted to call Officer Jesse Campos as a witness; (2) he did not receive written notice prior to his hearing of the charges against him; and (3) he was not given a written statement that indicated what evidence was used to find him guilty of the charged offenses. This contention lacks merit.

Prison disciplinary hearings must comport with minimum procedural due process requirements. See Wolff v. McDonnell, 418 U.S. 539, 558 (1974). An inmate facing disciplinary action must receive (1) a limited right to call witnesses and to present documentary evidence, if permitting him to do so is consistent with institutional safety and correctional goals; (2) advance written notice of the disciplinary charges; and (3) a written statement by the factfinder of the evidence relied upon and the reasons for the disciplinary action. Id. at 564-567.

First, Pinkerton was notified on May 16, 1988, two days after the incident, that a disciplinary hearing would be held on May 18, 1988. The notice also informed him of the infractions he was charged with, as did the segregation report he received on May 14, 1988. This constitutes sufficient notice. Furthermore, Pinkerton was given the opportunity to attend the hearing and testify in his own behalf, which he waived. After the hearing, Pinkerton received a copy of the infraction report which stated the details of his infraction, the hearing officer's findings for each allegation, the evidence relied upon, and the sanction for the violations. Accordingly, the prison complied with the requirements of Wolff.

Pinkerton's contention that he was not permitted to call Campos also lacks merit. Before the disciplinary hearing, Pinkerton requested witness statements from four staff members and one inmate. Witness statements were obtained from the inmate and three of the four staff members, and were reviewed by the hearing officer at the disciplinary hearing.

Although Pinkerton requested a statement from Officer Campos, Campos neither testified nor wrote a witness statement before the hearing because, according to the state, he was unavailable. On May 27, 1988, Campos submitted a witness statement stating that he was "standing mainline" at the time of the incident, the cook informed him that Pinkerton refused his orders, and he then escorted Pinkerton out of the dining building. Campos further stated that "this was all I observed." Given these circumstances, the district court found, and we agree, that Officer Campos was not a direct witness to the infraction which led to Pinkerton's disciplinary hearing and that his testimony was not necessary to a fair resolution of the hearing. Thus, Pinkerton's limited right to call witnesses was not violated. Id. at 564-67.

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

1/ In the district court, Pinkerton also challenged a disciplinary March 30, 1989, but he has not raised this issues on appeal.

2/ It appears that the Washington Administrative Code does not create a liberty interest in remaining in the general prison population because the decision is within the discretion of prison officials. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983). We need not decide this issue because Pinkerton received all the process he was due under the Constitution and the Washington Administrative Code.