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Cano v. Agee

filed*fn*: February 18, 1993.

RAMON CANO, PLAINTIFF-APPELLANT,
v.
J. AGEE, CORRECTIONS OFFICER; G. C. MARSHALL, E.O.C.I. LT.; W. C. DELFS, E.O.C.I. LT., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Oregon. D.C. No. CV-92-1111-FR. Helen J. Frye, District Judge, Presiding

Before: Goodwin, Schroeder, and Canby, Circuit Judges.

MEMORANDUM

Ramon Cano, an Oregon state prisoner, appeals pro se the district court's summary judgment for prison officials in Cano's 42 U.S.C. § 1983 action. Cano contends that prison officials violated his civil rights by (1) placing him in administrative segregation after Cano's altercation with his mentally retarded cellmate, and (2) by placing him in a cell with a mentally retarded prisoner. Cano also contends that the district court abused its discretion when it denied his request for appointment of counsel and additional discovery. 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.

I

Summary Judgment

Summary judgment is appropriate if, viewing the evidence in the light most favorable to the party opposing the motion, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). "The party opposing summary judgment may not rest on conclusory allegations, but must set forth specific facts showing that there is a genuine issue for trial." Id.

II

Administrative Segregation

Cano was placed in administrative segregation after the officer in charge discovered him fighting with his cellmate. After two days in segregation, Cano was provided with an administrative hearing and was released after prison officials found that he had acted in self-defense.

A protected liberty interest may arise from the due process clause itself or the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466 (1983). The due process clause does not create a liberty interest in freedom from administrative segregation. Id. at 468. Thus, we look to Oregon state law to determine whether such an interest has been created.

Oregon state law provides that "an inmate charged with committing a rule violation may be placed in temporary disciplinary segregation status . . . pending resolution of the charge." Or. Admin. R. 291-105-021(3). Under this provision, the officer in immediate charge of the inmate determines "that the alleged rule violation is of such seriousness that the good order and security of the facility requires immediate removal from the general population." Id.

Here, the governing Oregon statute does not provide Cano with a liberty interest in being free from temporary administrative segregation. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 462 (1989) (state regulations must contain mandatory language requiring substantive predicates for a liberty interest to exist). The language in the regulation gives the officer in charge discretion in determining whether to place a prisoner in temporary administrative segregation prior to the prisoner's administrative hearing. See id. Accordingly, the district court properly granted summary judgment for defendants on this issue. See Berg, 794 F.2d at 459.

III

Cell ...


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