dissenting.
While appellant Holt alleges that he was disciplined only after his request for documentary evidence and laboratory reports was denied, I believe that the complaint filed demonstrates that he was provided such information. The conduct violation report is attached to the complaint. The essence of the charge is that when Holt’s right hand was forced open, several broken pieces of blue tablets marked with the word “Valium” were recovered. Because the institutional physician never issues Valium to any residents, Holt was in possession of contraband. The adjustment board found that the contraband pills were clearly marked Valium, a controlled substance, which would lead a reasonable person to believe they were Valium. A reasonable person would further believe that the pills posed a threat to the security of the institution because they could be consumed or trafficked throughout the institution. The findings further referred to the classification committee for possible classification action upon receipt of the lab results. It is apparent that the discipline was administered based on these documents, which were provided to Holt. The attachment-of this documentary evidence directly contradicts Holt’s allegation. The magistrate relied on these documents in finding that Holt’s allegations were frivolous.
The court today recognizes that the complaint does not specifically state that documentary evidence was actually available. It reasoned that the allegations that Holt’s request for documentary evidence was refused and that such refusal kept him from adequately preparing a defense “may be read to imply the existence of exculpatory evidence.” At 105. Under the state of the record before us, I believe that the court, contrary to its protestation, adopts a “fantastic or delusional scenario.” Neitzke, 109 S.Ct. at 1833, and that it errs in so doing.
We called for a response from the state after this case was appealed to this court. The response demonstrates that after the adjustment board action, the assistant superintendent made further recommendations on the basis of the findings of guilt of the board, and that referral to the classification committee need not depend upon lab results. The only specific allegation in Holt’s complaint has to do with failure to furnish the lab results.
Further materials provided by the state reveal that after laboratory results confirmed that the tablets were in fact Valium, the case was referred to prosecuting authorities (State’s App. at 11-12). Holt then entered a guilty plea to a charge of possession of a controlled substance in a correctional institution, a class C felony, and was sentenced to two years imprisonment. The incident of April 20 gave rise to both the disciplinary charge and the criminal charge.
I have no hesitation in concluding that Holt’s complaint with the attached materials contained some evidence to support the *107decision of the prison disciplinary board, thus satisfying the due process requirements of Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985).
The court today closes its eyes to the reality of the record in remanding this case to the district court.
ORDER
March 11, 1991.
Appellees' petition for rehearing by the panel is granted. The suggestion for rehearing en banc is denied.
Mr. H. Kent Munson is hereby appointed to represent the appellant under the inherent power of the court. A supplemental briefing schedule is established as follows:
Supplemental Brief for appellant due April 10, 1991.
Supplemental Brief for appellees due May 1, 1991.
Reply Brief, if necessary, due May 8, 1991.