898 F. 2d 154 - Holland v. Sowders

Before KENNEDY and ALAN E. NORRIS, Circuit Judges, and AVERN COHN, District Judge*.

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 briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Jack Joe Holland appeals the dismissal of his civil rights action filed under 42 U.S.C. Sec. 1983 as frivolous pursuant to 28 U.S.C. Sec. 1915(d). Holland alleges that a prison disciplinary committee provided insufficient written reasons for a disciplinary conviction for assaulting a prison employee. The district court adopted the magistrate's recommendation that the complaint be dismissed over plaintiff's objections. Upon consideration, we conclude that the dismissal was proper.

Generally, a complaint may be dismissed as frivolous where it "lacks an arguable basis either in law or fact." See Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989). Here, the district court correctly concluded that the reasons given by the disciplinary committee comport with the requirements of due process. See Wolff v. McDonnell, 418 U.S. 539, 564-65 (1974); King v. Wells, 760 F.2d 89, 92-94 (6th Cir.1985). Clearly, the committee "received information which provides some evidence that the charged misconduct occurred" and the record "demonstrates that the prison disciplinary hearing was conducted fairly." See Hensley v. Wilson, 850 F.2d 269, 277 (6th Cir.1988). As aptly noted by the magistrate and the district court, plaintiff's defense to the charge--that he did not intend to hit the corrections officer with a baseball bat--is simply no defense at all. See Ky.Rev.Stat.Ann. Sec. 508.030(1)(b).

Accordingly, the judgment of the district court is affirmed for the reasons stated in the magistrate's report and recommendation filed July 12, 1989, and in the memorandum opinion and order adopting the magistrate's recommendation filed July 26, 1989. Rule 9(b)(5), Rules of the Sixth Circuit.