concurring in part and dissenting in part.
I concur in that portion of the court’s opinion granting summary judgment to de*141fendant Henry on the basis of qualified immunity. In my view, Henry has not violated a clearly established constitutional right with respect to when or how prison employees may report incidents to their superiors. However, for the reasons set forth below, I respectfully dissent from the majority’s conclusion that defendants Pershing and Scroggy are entitled to qualified immunity.
The only question we need to answer in addressing the qualified immunity claims of Pershing and Scroggy is whether their actions have violated clearly established constitutional rights of which a reasonable person would be aware. Harlow v. Fitzerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). Pershing is accused of failing to conduct an adequate investigation of the alleged assault and for assigning a charge that severely overstates the nature of plaintiffs “crime.” At the time of the events in this case it was sufficiently well established that an inmate is entitled to certain minimal due process protections before being deprived of good time credits. Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). Certainly among these protections is the right not to be charged with a major misconduct offense without first having the benefit of a good faith investigation. Ivey v. Wilson, 577 F.Supp. 169, 172 (W.D.Ky.1983).
In this case Pershing apparently did no more than take the original report of the nurse and then ask Turney for his side of the story before charging Turney with sexual assault. However, as the lower court found, this meager investigation failed to turn up even the slightest indication that a sexual assault had occurred. Accordingly, I would hold that Pershing has violated a clearly established constitutional right, and would not grant him qualified immunity.
Similarly, Warden Scroggy should not be entitled to qualified immunity. The claim against Scroggy is based on his review and approval of the disciplinary committee’s actions. At the time of this incident it was clearly established as a matter of due process that an inmate could not be found guilty of a major misconduct offense unless there was some evidence to support the conviction. The Supreme Court did not explicitly articulate this right until 1985 in Superintendent, Massachusetts Correctional Institute v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Nevertheless, in light of the extensive due process rights outlined by the Court in Wolff v. McDonnell, supra, prison officials could not have thought it constitutional to convict a prisoner on a charge for which there was no evidence.
I agree with the district court that no evidence exists to support the conviction in this case. The evidence only shows that Turney “touched” Nurse Henry with his hand and knee while she sat at her desk. Indeed, Henry herself acknowledged at the hearing that she had no opinion as to whether the “touching” was sexually motivated, and admitted that she was not hurt as a result of the encounter but rather was only “insulted.” Contrary to the conclusion of the majority, I do not believe it was error for the lower court to weigh this testimony. Nurse Henry never suggested in the incident report that Turney had a sexual motive in his actions. Consequently, her statements at the hearing are not at all inconsistent with her earlier account of the incident. Furthermore, I do not believe that this case resembles Hill. In Hill, the incident report was filed by a prison guard against three inmates the guard had observed running from the scene of an assault. The report charged the defendants with assault upon another inmate. The victim of the assault gave a written statement that the three had not caused his injuries. Nevertheless, the inmates were found guilty by the disciplinary board and this finding was sustained by the Supreme Court. In Hill the statement of the victim was properly rejected by the board as motivated by fear of reprisal. In this case, however, it was the victim of the assault, Nurse Henry, who filed the incident report to begin with. Further, based on the way that Henry handled herself during the actual encounter, there is absolutely no indication that she feared this inmate in the slightest. Accordingly, even were I to *142agree that Nurse Henry’s testimony before the adjustment committee had contradicted earlier suggestions in the incident report that Turney’s actions were sexually motivated, I would nevertheless allow the lower court to afford her testimony substantial weight as it pertains to her subjective impressions of Turney’s intentions.
Finally, my conclusion that Warden Scroggy is not entitled to qualified immunity is consistent with Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985). Cleavinger merely holds that an individual acting in an adjudicatory capacity is entitled to immunity so long as he has not violated a clearly established constitutional right. Id. at 504. While I agree that Warden Scroggy’s actions in this case were “adjudicatory,” I do not believe he has afforded this inmate the due process to which he was clearly entitled.
Accordingly, I dissent from the court’s grant of qualified immunity to Warden Scroggy.