878 F. 2d 382 - McEwen v. McWherter

Before KEITH and WELLFORD, Circuit Judges, and HORACE GILMORE, District Judge.*

Earnest McEwen, a pro se Tennessee state prisoner, requests the appointment of counsel on appeal from the dismissal of his civil rights suit filed under 42 U.S.C. Sec. 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Plaintiff sued a corrections officer and the warden of the state prison where he is incarcerated, alleging that the officer had filed a false disciplinary report against him. Plaintiff was found guilty of the charge, and lost good time, security status, and privileges. The officer subsequently wrote a letter indicating that he may have overreacted in filing the charge, and inquiring whether it could be removed from plaintiff's record. The warden refused to reopen the case as the time for appeal had expired. Plaintiff sought expungement of his record, restoration of his good time and security status, and punitive damages. The district court granted defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

Upon consideration, we conclude that this case was properly dismissed. Plaintiff was accorded due process in his disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974). Furthermore, the board's finding was supported by some evidence. See Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455-56 (1985). The warden is entitled to qualified immunity in reviewing disciplinary decisions, Turney v. Scroggy, 831 F.2d 135, 138 (6th Cir.1987), and plaintiff did not establish the existence of any constitutional right to a delayed appeal from prison disciplinary decisions.

Accordingly, plaintiff's motion for counsel is denied, and the district court's judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.