Unpublished Disposition, 937 F.2d 611 (9th Cir. 1988)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 611 (9th Cir. 1988)

Oscar ACUNA, Plaintiff-Appellant,v.Samuel LEWIS, et al., Defendants-Appellees.

No. 90-15319.

United States Court of Appeals, Ninth Circuit.

Submitted April 12, 1991.* Decided July 9, 1991.

Before HUG, POOLE and FERGUSON, Circuit Judges.


MEMORANDUM** 

Oscar Acuna brought this action under 42 U.S.C. section 1983 against defendant Samuel Lewis, the Director of the Arizona Department of Corrections. Acuna appeals pro se the district court's dismissal of his claim. We have jurisdiction under 28 U.S.C. section 1291 and we affirm.

FACTS AND PROCEEDINGS

On January 24, 1988, Oscar Acuna, an inmate at the Arizona State Prison at Florence, Arizona, was in his prison dorm. A correctional officer conducting a walk-through inspection of the prison facilities smelled marijuana and then observed Acuna and others in the immediate area. The officer called another officer who confirmed the smell was in fact marijuana, the officer then requested urinalysis tests for each inmate. Acuna tested positive. A disciplinary hearing was conducted based on the observation of the officer and two positive urinalysis (EMIT Test) tests. Acuna was found to have ingested marijuana. Acuna sought relief from the district court which granted the defendant's motion for judgment on the pleadings and dismissed the case for failure to state a claim.

Acuna then brought this section 1983 claim alleging violations of his rights to "procedural due process" because (1) his "inmate representative" was restricted at the hearing from providing relevant information and asking questions, and (2) the evidence did not support the finding by the disciplinary board that he had ingested marijuana. Acuna also contends that the prison officials intentionally destroyed evidence (tape recordings of the disciplinary hearing), which should have been preserved for trial.

STANDARD OF REVIEW

Prison disciplinary proceedings are subject to a minimum level of judicial review. "The requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board." Superintendent, Mass. Correctional Ins. v. Hill, 472 U.S. 445, 456 (1985) (emphasis added) (applied to the disciplinary committee's revocation of good time credits). The standard of "some evidence" does not require compliance with the Federal Rules of Evidence, but only that the decision of the disciplinary committee have "some indicia of reliability." Coto v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).

PROCEDURAL DUE PROCESS CLAIM

Acuna claims that he was denied procedural due process when, during a disciplinary hearing, (1) he was not permitted to call a particular witness and (2) his "inmate representative" was prevented from asking questions and providing information regarding the adequacy of the EMIT Test. These contentions lack merit.

The Supreme Court in Wolff v. McDonnell, 418 U.S. 539 (1974), held that due process requires procedural protections before a prison inmate can be deprived of a protected liberty interest. Under Wolff, the inmate must receive: (1) advance written notice of the disciplinary changes; (2) an opportunity to call witnesses and present documentary evidence in his defense, where consistent with institutional safety and correctional goals; and (3) a written statement by the factfinder of evidence relied on and the reasons for disciplinary action. Superintendent, Mass. Correctional Ins. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff v. McDonnell, 418 U.S. 539, 563-567 (1974)).

An inmate generally is allowed to present witnesses and documentary evidence. Ponte v. Real, 471 U.S. 491, 496 (1984); Wolff v. McDonnell, 418 U.S. 539, 566 (1974). This standard is limited by the rule that "prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority...." Ponte, 471 U.S. at 496. The burden of proving adequate justification for denial of a request to present witnesses rests with the prison officials. Ponte, 471 U.S. at 499.

In this case, Acuna concedes that he received all the procedures required by due process as set forth in Wolff. Acuna sought to call as a witness a prison guard who would testify as to the facts and procedures of the urinalysis (EMIT Test). The disciplinary committee denied the request because the testimony would have been cumulative. The prison guard had already provided the disciplinary committee with a sworn statement as to the facts and procedures. Therefore, it would have been redundant to call the guard. See, e.g., Bostic v. Carlson, 884 F.2d 1267, 1273 (9th Cir. 1989); Malek v. Camp, 822 F.2d 812, 815 (8th Cir. 1987). We agree with the decision of the district court with respect to this claim.

Acuna also contends his due process rights were violated because his "inmate representative" was not permitted to ask questions and provide information. There is no right to assistance of counsel in a prison disciplinary hearing. Baxter v. Palmigiano, 425 U.S. 308, 314-15 (1976); Bostic v. Carlson, 884 F.2d at 1274. Therefore, Acuna's claim as to the restrictions placed on counsel or an "inmate representative" is meritless.

RELIABILITY OF THE EMIT TEST

Acuna's contention that the EMIT test is not reliable, and therefore not sufficient, as corroborating evidence for a finding that he ingested marijuana is also without merit.

Acuna was observed by an officer in an area which smelled of marijuana and then tested positive on an EMIT test which was confirmed by a second EMIT test. We hold, that the testimony of two officers, each of which smelled burnt marijuana in a given area, supported by a positive EMIT test result, confirmed by a second positive test result, supplies enough evidence to support a disciplinary committee's finding that a prisoner has ingested marijuana. Accordingly, we affirm the district court's ruling on this issue.

IV

INTENTIONAL DESTRUCTION OF EVIDENCE

Acuna's argument that prison officials willfully destroyed evidence of the disciplinary hearing after he filed a motion to compel production of the tape recordings was raised for the first time on appeal.

An appellant may not raise an issue on appeal that he or she did not contest below. Columbia Brick Works, Inc. v. Royal Ins. Co., 768 F.2d 1066, 1070 n. 2 (9th Cir. 1985) (citing Roberson v. United States, 382 F.2d 714, 718 (9th Cir. 1967)). This court, however, will review issues not raised below in exceptional circumstances, to prevent manifest injustice. Int. Un. of Bricklayers etc. v. Martin Jaska, Inc., 752 F.2d 1401 (9th Cir. 1985). Acuna neither presented this argument to the district court nor does he now advance any reasons for not doing so. Accordingly, we will not consider this issue.

AFFIRMED.

 *

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