The Honorable Scott O. Wright, United States District Judge 1

for the Western District of Missouri. 

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No. 94-3482

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Allen McCarter, *

*

Appellant, *

*

v. *

* Appeal from the United States

S. Plaster; George Adams; * District Court for the

K. Baysinger; Gerald Bommell; * Western District of Missouri

Dan Kempker; Earl Halderman; *

Cecilroy Pettus; Vernon Taylor; * [UNPUBLISHED}

Michael Groose, *

*

Appellees. *

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 Submitted: April 23, 1996

 Filed: August 28, 1996

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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

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PER CURIAM.

Allen McCarter appeals from the final judgment of the District Court1

for the Western District of Missouri granting defendant prison officials

summary judgment in this 42 U.S.C. § 1983 action. For the reasons

discussed below, we affirm.

In his verified complaint, McCarter alleged that on August 5, 1992,

he was placed in temporary segregation during an investigation of a prison

yard assault on another inmate. The next day, McCarter received a conduct

violation report from Sam Plaster, stating McCarter "was observed in gangrelated activities involving
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an assault . . .[,] wearing his gang colors and trying to [e]ncourage other

inmates to get involved." McCarter alleged that at the August 12

adjustment board hearing, he stated an inmate was braiding his hair on

August 5, he was not wearing gang colors, he was not a gang member and was

not involved in the fight, and Plaster was not in the yard when the fight

occurred. The adjustment board denied McCarter's request for admission of

the property inventory sheet to show what he was wearing that day, found

McCarter guilty based on the reporting officer's "observation and account

of activities," and assigned him to administrative segregation. McCarter

continued to assert his innocence before the classification committee and

in grievances to the superintendent. McCarter claimed a violation of his

due process and Eighth Amendment rights. He sought declaratory and

injunctive relief and damages. 

Defendants answered the complaint and responded that McCarter's

request for immediate release from administrative segregation was moot

because his conduct violation had been expunged and he was transferred to

general population on December 29, 1992. Defendants then moved for summary

judgment, arguing that McCarter received all the process he was due. 

After the district court expressed concern at a pretrial conference

that defendants could be liable if they knowingly gave McCarter a false

conduct violation, defendants supplemented their summary judgment motion

with affidavits from Plaster and George Adams. Adams attested that he and

several of his subordinates investigated the assault; they "picked up an

inmate" who implicated several inmates (believed by officials to be gang

members) and who stated McCarter incited the attack. Adams attested that

he had a conduct violation typed up because McCarter's involvement "had

been observed," and that he had Plaster, who was one of the first officers

on the scene following the assault, sign the conduct violation. Plaster

attested that, although he did not personally
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observe McCarter engaging in gang-related activities, he trusted his

superior officer (Adams) and believed that the conduct violation had been

typed up in an effort to preserve the safety and security of the

institution. The district court then concluded that McCarter was afforded

all of his procedural due process protections when his conduct violation

was expunged, citing Harper v. Lee, 938 F.2d 104, 105 (8th Cir. 1991) (per

curiam).

We need not decide whether the expunction could cure all due process

violations, because we conclude on the basis of the record before us that

the conduct violation was supported by "some evidence," and thus McCarter

was not deprived of due process. See Superintendent v. Hill, 472 U.S. 445,

455 (1985); Goff v. Dailey, 991 F.2d 1437, 1442 (8th Cir.), cert. denied,

510 U.S. 997 (1993).

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.