AARON HARPER V. DENISE HARMON, No. 08-16547 (9th Cir. 2012)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 26 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT AARON SHAUN HARPER, Plaintiff - Appellant, No. 08-16547 D.C. No. 2:04-CV-00339-FCDJFM v. DENISE L. HARMON, Supervising Cook; et al., MEMORANDUM * Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Jr., District Judge, Presiding Submitted April 17, 2012 ** Before: LEAVY, PAEZ, and BEA, Circuit Judges. Aaron Shaun Harper, a California state prisoner, appeals pro se from the district court s judgement as a matter of law in his 42 U.S.C. § 1983 action alleging violations of his constitutional rights arising from a prison disciplinary proceeding. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Summers v. Delta Air Lines, Inc., 508 F.3d 923, 926 (9th Cir. 2007), and we affirm. The district court properly entered judgment as a matter of law on Harper s claim that his confinement in administrative segregation on false charges violated his due process rights. See Sandin v. Conner, 515 U.S. 472, 486 (1995) ( discipline in segregated confinement did not present the type of atypical, significant deprivation required to create a liberty interest); see also Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (procedural protections apply to disciplinary proceedings only when the disciplinary action implicates a protected liberty interest ). Even assuming that there was a liberty interest at stake, the evidence showed that prison officials afforded Harper with all the process that he was due. See Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974) (setting forth due process requirements in prison disciplinary proceedings). The district court did not abuse its discretion by failing to grant a continuance sua sponte when one of Harper s witnesses was medically unavailable at trial, particularly where Harper did not show that he suffered prejudice. See United States v. Orlando, 553 F.3d 1235, 1237 (9th Cir. 2009) (reviewing for an abuse of discretion the decision to grant or deny a continuance, even where, as here, no motion for continuance was made ); United States v. Flynt, 756 F.2d 2 1352, 1359 & n.7 (9th Cir. 1985) (setting forth factors to consider in reviewing denials of requests for continuances). AFFIRMED. 3
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