Harvey J. Cass v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4122
___________
Harvey J. Cass, *
*
Appellant, *
*
v. *
* Appeal from the United States
Harold W. Clarke; Michael L. Kenney; * District Court for the
Joseph Wilson; Darla Ziesset; Frank X. * District of Nebraska.
Hopkins; M. Rose-Seeman, also known *
as Mikki Kirkpatrick; Fred Britten; * [UNPUBLISHED]
Mike Johanns; Jane Grabenstein- *
Chandler; Jeff Utecht; Bruce Kramer; *
Teresa Predmore, *
*
Appellees. *
___________
Submitted: November 24, 2006
Filed: December 4, 2006
___________
Before SMITH, MAGILL, and BENTON, Circuit Judges.
___________
PER CURIAM.
Harvey J. Cass, a former Nebraska prisoner, appeals the district court’s1 adverse
grant of summary judgment in his 42 U.S.C. § 1983 action. Cass sought damages for
1
The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
alleged due process violations stemming from a misconduct report filed against him
and the resulting disciplinary proceedings and punishment, which included the loss
of 90 days of good-time credit. Upon de novo review, see Phillips v. Norris, 320 F.3d
844, 846 (8th Cir. 2003) (standard of review), we affirm the grant of summary
judgment for defendants.
We agree with the district court that Cass’s due process challenges to the prison
disciplinary proceedings fail. First, Cass had no actionable claim against appellee
Joseph Wilson for filing an allegedly false misconduct report, see Sprouse v. Babcock,
870 F.2d 450, 452 (8th Cir. 1989) (filing of false disciplinary report against inmate is
not itself actionable), and his contention on appeal that Wilson filed the report in
retaliation was not raised below and we decline to address it here, see Stone v. Harry,
364 F.3d 912, 914-15 (8th Cir. 2004) (declining to consider new allegations on
appeal). Second, appellee Darla Ziesset’s failure to follow state law and conduct an
independent investigation did not violate Cass’s federal due process rights, see
Phillips, 320 F.3d at 847 (there is no federal constitutional liberty interest in having
state officers follow state law or prison officials follow prison regulations),
particularly when Supreme Court precedent does not mandate an investigation, see
Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974) (establishing minimum due process
requirements for prison disciplinary hearings). Third, appellee Mike Kenney’s ability
to delegate the approval of the loss of good time to appellee Fred Britten is likewise
purely a question of state law, lacking any federal or constitutional implication as
required to be actionable in this section 1983 suit; and in any event, this is an issue
that the Nebraska courts have resolved in appellees’ favor, see Martin v. Neb. Dep’t
of Corr. Servs., 671 N.W.2d 613, 619-20 (duty to approve forfeiture of good time may
be delegated to subordinate officials).
Accordingly, we affirm.
______________________________
-2-