Patrick Russell v. Frank Hopkins

___________

No. 95-2472
___________

Patrick Ronald Russell, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Frank X. Hopkins; Mark J. * District of Nebraska.
Berglund; Francis E. Britten; * [UNPUBLISHED]
John Mitchell, *
*
Appellees. *

___________

Submitted: February 2, 1996

Filed: February 7, 1996
___________

Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
___________

PER CURIAM.

Patrick Ronald Russell appeals from the district court's1
grant of summary judgment to defendants in his 42 U.S.C. § 1983
action against Nebraska State Penitentiary (NSP) officials Warden
Frank Hopkins, Officer Mark Berglund, Administrative Assistant
Fred Britten, and Superintendent of Construction/Maintenance Jon
Mitchell. We affirm.

Russell claimed his constitutional rights were violated when
Berglund confiscated hobby and shaving blades from Russell's cell
during a shakedown inspection, and then issued Russell a misconduct
report for possession of unauthorized materials in retaliation for

1
The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska.
Russell's threats to sue Berglund for confiscating the blades.
Russell also alleged that Britten and Mitchell, members of the
institutional disciplinary committee, denied Russell due process
when they refused to call Hobby Supervisor Marv Sefrna to testify
at Russell's misconduct hearing as Russell requested. Russell
claimed they also condoned Berglund's retaliation by finding
Russell guilty of the possession charge, as did Hopkins by
approving the disciplinary committee's findings.

Defendants moved for summary judgment and Russell did not
respond. The district court granted defendants summary judgment,
concluding that Berglund could not be liable for retaliation
because Russell's behavior violated prison rules and warranted
discipline; Britten and Mitchell could not be liable for failing to
call Sefrna, because Sefrna had submitted a written statement and
Russell had not objected to its use in lieu of live testimony; and
Hopkins could not be liable because there was no evidence to link
him to the disciplinary decision.

On appeal, Russell claims summary judgment was improper
because he never received defendants' summary judgment motion, he
should have been allowed an evidentiary hearing, and the judgment
was based upon false information, because he did object to the use
of Sefrna's statement. He also argues the district court judge was
biased because Russell had filed complaints against him. Pursuant
to both parties' requests, we enlarge the record to include the
prison mail log and a copy of Russell's hobby card which allegedly
authorized him to keep the confiscated blades in his cell.

We review de novo the district court's grant of summary
judgment. See Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.
1995). We assume, without deciding, that Russell did not receive
the motion and supporting documents; however, Russell has indicated
on appeal what he would have shown had he been given the
opportunity to respond to the summary judgment motion. Presuming

-2-
that Russell could show what he alleges, we conclude that he has
still failed to raise a genuine issue of material fact.

Prison officials may not retaliate against inmates for
exercising their rights to access the courts. Russell's
retaliation claim fails, however, because the alleged retaliatory
misconduct charge was for an actual violation of prison rules or
regulations. See Goff v. Burton, 7 F.3d 734, 736, 738 (8th Cir.
1993), cert. denied, 114 S. Ct. 2684 (1994). Defendants provided
evidence that possession of blades in living quarters was not
authorized when Berglund confiscated Russell's blades. Although
Russell has submitted evidence that he was authorized to possess
such blades in his living quarters in the past, he has not rebutted
defendants' evidence that the policy had been changed prior to the
confiscation incident. Thus, we find the disciplinary committee's
decision was supported by some evidence. See Henderson v. Baird,
29 F.3d 464, 469 (8th Cir. 1994), cert. denied, 115 S. Ct. 2584
(1995).

We also conclude the district court correctly determined
Britten and Mitchell were entitled to summary judgment. Britten
attested that because Sefrna submitted a written statement, the
committee determined Sefrna's presence was unnecessary and
cumulative. We believe such a determination was within the
committee's discretion. See Turner v. Caspari, 38 F.3d 388, 390-92
(8th Cir. 1994) (inmates do not have an absolute right to call live
witnesses at disciplinary hearing; disciplinary board acted within
its discretion when it relied on written statements instead of live
testimony); Brown v. Frey, 889 F.2d 159, 167 (8th Cir. 1989)
(committee acted within its discretion when it refused to call
witness whose statement was already on file), cert. denied, 493
U.S. 1088 (1990). We note Russell has not indicated what testimony
Sefrna might have contributed had he attended Russell's hearing
that would have resulted in a different outcome for Russell.

-3-
 Finally, we find the district court properly granted Hopkins
summary judgment because there was no evidence linking Hopkins, as
the warden, to the discipline Russell received. See Brown v.
Wallace, 957 F.2d 564, 566 (8th Cir. 1992) (per curiam) (doctrine
of respondeat superior does not apply in civil rights cases).
Russell's claims of judicial bias and entitlement to an evidentiary
hearing are meritless.

Accordingly, the judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-4-