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Bostic v. Brackney

filed*fn*: September 17, 1992.

LEEROY B. BOSTIC, JR., PLAINTIFF-APPELLANT,
v.
DAVID BRACKNEY, (SIS); SAM KING, LTD; CHARLES W. GRIFFITH, LTD; M. STRAHL, BOARD CHAIRMAN, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Arizona. D.C. No. CV-89-00500-PGR. Paul G. Rosenblatt, District Judge, Presiding

Before: Goodwin, D.w. Nelson, and Reinhardt, Circuit Judges.

MEMORANDUM

LeeRoy B. Bostic Jr. appeals pro se the district court's summary judgment in his civil rights Bivens action in favor of the defendants. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Bostic contends that he was denied due process in connection with a prison disciplinary hearing. Specifically, he asserts that the defendants, acting in a conspiracy, violated his due process rights when they (1) failed to provide him with sufficient notice of the charges against him prior to his disciplinary hearing; (2) prohibited a key witness from testifying on Bostic's behalf; (3) did not allow Bostic to cross-examine the defendants' witness; and (4) used the testimony of a confidential informant who had no prior history of reliability to charge Bostic with assault. We review de novo the district court's grant of summary judgment. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990). We affirm in part, reverse in part, and remand.

I

Background

Bostic was charged with assaulting Reece Jones, another inmate, in the prison cafeteria. The incident was allegedly witnessed by a prison official and by another inmate whose identity remained confidential. Bostic was given notice of the charges against him twenty-six hours after the incident and nine days prior to his disciplinary hearing.

Bostic requested that Jones be allowed to testify at his disciplinary hearing. According to Bostic and Jones's affidavit, Jones intended to testify that the assault never took place and that prison officials had fabricated the incident. Jones, however, was prohibited from testifying after defendants submitted a report to the disciplinary committee stating that Jones had been released from custody prior to the hearing. Although defendants conceded in their motion for summary judgment that Jones was still incarcerated at the time of the disciplinary hearing, they maintained that their report to the disciplinary committee was the result of an innocent mistake.

At the disciplinary hearing Bostic also sought to cross-examine the prison official who had allegedly witnessed the altercation. Defendants, however, submitted the official's affidavit in lieu of his live testimony. Consequently, Bostic was not given the opportunity to cross-examine the witness.

The disciplinary committee found Bostic guilty of the assault charge, and he received sanctions of forty-eight days of disciplinary segregation and the forfeiture of 250 days of statutory good time credit. Subsequent to serving his time in disciplinary segregation, Bostic was transferred to another correctional facility where he was given a rehearing on the assault charge. This hearing resulted in the expungement of the charge and the reinstatement of his good time credits. Bostic subsequently brought this suit against defendants for compensatory damages for the time he spent in administrative segregation.

II

Merits

Summary judgment is appropriate if the evidence, construed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56; Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

Courts reviewing prison due process claims do not set aside decisions of prison officials if they have some basis in fact. Tousaint v. McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). The evidence must, however, have some indicia of reliability, and findings of fact cannot be without evidentiary support or otherwise arbitrary. See Hill v. ...


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