UNITED STATES COURT OF APPEALS
Filed 9/19/96TENTH CIRCUIT
SAMMY ATKINSON,
Plaintiff-Appellant,
v. Case No. 96-6117
KENNETH HOLLOWAY, WALTER (D.C. CIV-95-330-T)
SIMCO, MARK PURSLEY, DAVID C. (Western District of Oklahoma)
MILLER AND DOLORES RAMSEY,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before BRORBY, EBEL, and HENRY, Circuit Judges.
Pro se appellant Sammy Atkinson, an inmate in the custody of the Oklahoma
Department of Corrections, appeals the grant of summary judgment for the defendants in
his 42 U.S.C. § 1983 action. He alleges that his due process rights were violated because
a disciplinary hearing officer relied on constitutionally inadequate evidence to find him
guilty of escape. Because the evidence used at the hearing, as we shall discuss below,
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
met the constitutional standard of “some evidence,” Superintendent, Mass. Correctional
Inst. v. Hill, 472 U.S. 445, 455 (1985), and further because Mr. Atkinson was present at
the hearing but did not refute the evidence, we affirm the grant of summary judgment for
the defendants.1
Mr. Atkinson was placed on the Preparole Conditional Supervision Program on
November 2, 1993 and was notified of the rules of the program. One of the rules
provides:
I understand that if I cannot be located for a 24 hour period or fail to report
to a Department of Corrections’ [sic] facility or probation and parole office,
I will be considered escaped.
Rec. vol. I, doc. 13, Attachment C at 1; id., Attachment D at 5. On November 17, 1993,
Mr. Atkinson checked out of the half-way house at which he was lodged; his itinerary
indicated that he would return by 7:30 that evening. When he neither returned to the half-
way house nor contacted his parole officer by 5:00 p.m. on November 19, the parole
officer wrote an offense report charging Mr. Atkinson with escape. A disciplinary
hearing was held, which Mr. Atkinson attended. The hearing officer found Mr. Atkinson
guilty of escape, citing as evidence “[t]he Offense Report’s description of the incident
[and] Mr. Atkinson’s fail[ure] to submit evidence or testimony to refute the charges.” Id.,
Attachment G at 1.
1
After examining the briefs and appellate record, this panel has determined that
oral argument would not materially assist the determination of this appeal. See Fed. R. App. P.
34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
As a preliminary matter, we note that the magistrate judge recommended that Mr.
Atkinson’s claim be construed as a petition for a writ of habeas corpus under 28 U.S.C. §
2254 because the resolution of his request for reinstatement of 677 earned credits “would
be tantamount to a decision on [his] entitlement to a speedier release.” Rec. vol. I, doc.
17, at 3 (quoting Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994)); see also Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973). However, the district court declined to adopt the
magistrate’s reasoning. We note that Mr. Atkinson states in his “Objection to Report and
Recommendation” that the good time credits he lost were subsequently restored, and the
government has not rebutted this claim. Therefore, because Mr. Atkinson is not
“challeng[ing] the fact or duration of his confinement [or] seek[ing] immediate or
speedier release,” Heck v. Humphrey, 114 S. Ct. 2364, 2369 (1994), the district court was
correct in treating the action as a claim for relief under 42 U.S.C. § 1983.
Our review of the district court’s grant of summary judgment to the appellees is
governed by the following well-established standard:
We review the grant or denial of summary judgment de novo, applying the
same legal standard used by the district court pursuant to Fed. R. Civ. P.
56(c). Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. When
applying this standard, we examine the factual record and reasonable
inferences therefrom in the light most favorable to the party opposing
summary judgment.
Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995) (citations and quotations
3
omitted), quoted in Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).
In Hill, the Supreme Court noted that “[t]he requirements of due process are
flexible and depend on a balancing of the interests affected by the relevant government
action.” 472 U.S. at 454. Accordingly, the Court held that a prison disciplinary
proceeding may not be second guessed by a reviewing court if the decision was supported
by “some evidence.” Id. at 455. The Court reasoned that, because “[p]rison disciplinary
proceedings take place in a highly charged atmosphere, and prison administrators must
often act swiftly on the basis of evidence that might be insufficient in less exigent
circumstances,” and because “[r]evocation of good time credits is not comparable to a
criminal conviction, . . . [no] standard greater than some evidence applies in this context.”
Id. at 456 (emphasis added) (citations omitted).
Mr. Atkinson concedes that this is the proper standard, but argues that the hearing
officer relied “solely” on the offense report and that such reliance fails to meet even the
minimal standard of “some evidence.” Aplt’s Br. at 3. While it is true that the record
contains nothing to refute Mr. Atkinson’s contention that the hearing officer considered
no other evidence, Mr. Atkinson admitted in his complaint that “other physical evidence
[was] introduced,” including the relevant pre-parole rules, Mr. Atkinson’s itinerary and
chronological records, and the last weekly report, see Rec. vol. I, doc. 2, at 2, 3. Because
“the relevant question is whether there is any evidence in the record that could support the
conclusion reached by [the hearing officer],” Hill, 472 U.S. at 455-56, and not on what
4
evidence the officer actually based his finding, Mr. Atkinson’s claim that the additional
evidence was “not considered” is immaterial to our inquiry.2 We therefore must decide
whether there is a genuine issue as to whether the submitted evidence, including the
offense report, formed a sufficient evidentiary basis for the finding of guilt, employing
the highly deferential standard of review required by Hill. The offense report provides a
brief but detailed description of the incident, and Mr. Atkinson presented no evidence to
rebut that account of the facts. This clearly constitutes “some evidence” under Hill, and
Mr. Atkinson has failed to raise a genuine issue that can defeat summary judgment based
on this conclusion.
Mr. Atkinson further argues that the defendants did not follow Department of
Corrections disciplinary procedures, which require that a finding of guilt on a
Disciplinary Hearing Action form must “mention what evidence the reporting officer
relied on.” See Rec. vol. I, doc. 13, Attachment H at 10 (“Policy and Operations Manual,
Disciplinary Procedures,” OP-060125, § IV.F.2). Here, the Disciplinary Hearing Action
form, in the space provided for “Evidence relied upon for Finding of Guilt,” cites “[t]he
Offense Report’s description of the incident [and that] Mr. Atkinson’s [sic] failed to
submit evidence or testimony to refute the charges.” Rec. vol. I, doc. 13, Attachment G at
1. This clearly satisfies the requirements of the cited departmental procedure, and no
We are unconvinced by Mr. Atkinson’s attempt to characterize the phrasing of his
2
complaint as something other than an admission that these pieces of evidence were introduced as
evidence at the disciplinary hearing.
5
genuine issue has been raised to challenge this conclusion.
Accordingly, the district court’s order denying Mr. Atkinson’s “Motion to Grant
Relief” and granting the appellees’ motion for summary judgment on Mr. Atkinson’s §
1983 claim is AFFIRMED.
The mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
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