___________ No. 95-2245

___________ Lee Moorman, Jr., * * Plaintiff-Appellee, * * v. * * John A. Thalacker, sued as John * Thalacker; Larry Brimeyer; * Thomas Luensman, sued as C/O * Luensman; Jerome Manternach, * sued as Jerry Manternach, * * Defendant-Appellants, * * Charles Lee, * Appeal from the United States * District Court for the Defendant, * Northern District of Iowa. * Harold Wood, * * Defendant-Appellant, *

___________ No. 95-2297

___________ Lee Moorman, Jr., * * Plaintiff-Appellant, * * v. * * John A. Thalacker, sued as John * Thalacker; Larry Brimeyer; * Thomas Luensman, sued as C/O * Luensman; Jerome Manternach, * sued as Jerry Manternach; * Charles Lee; Harold Wood, * * Defendant-Appellees, *

___________

### The case was tried before a magistrate with the parties ' 1 

### consent. Submitted: February 12, 1996

Filed: May 14, 1996

___________ Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

___________ BEAM, Circuit Judge.

Lee Moorm an was disciplined after he was found to have violate d prison regulations. The discipline included the loss of sixteen days of good time . He filed suit under 42 U.S.C. § 1983 claiming that priso n officials violated his rights to due process. The district court denied 1 the officials qualified immunity and ruled in favor of Moorman. Moorman appeals the determina tion of damages and the prison officials appeal both the district court's denial of qualified immunit y and its determination of liability on the merits. We reverse.

I. BACKGROUND

In 1984, Moorman was sentenced to tw enty-five years in prison for an armed robbery which he committed using his father's .357 magnum handgun. In September 1989, a prison guard overheard an i nterchange between Moorman and a fel low inmate about obtaining handguns. Moorman, who wa s anticipating release in the near future, stated that he intended to obtain his father's gun agai n immediately upon his release from prison. Moorman also stated that if h e could not persuade his father to give him the .357 magnum (which both in mates agreed was the most desirable model), he would go out and purchase one.

The guard filed a disciplinary report and Moorman was discipline d under p rison rules 41 and 11. Rule 11 forbids inmates from engaging i n conduct which is a felony under state or federal

### Moorman was also transferred from a minimum securit y 2 

### institution to a medium security institution as a result of th e disciplinary report.

Moorman's motion for summary judgment claiming issu e 3 

### preclusion, which was based on an eventual state court finding in favor of the other inmate, was correctly denied by the distric t court. As the district court pointed out, the two inmates played different roles, with Moorman being the main player. That ruling has not been appealed.
-3- law. Rule 41, among other things, forbids inmates from "attempt[ing] to commit any of the [offenses covered in Rule 11] or [being] in complicity with others who are committing or attempting to commit any of the [offense s covered by Rule 11]." Information Guide, Iowa State Men's Reformatory, pp

. 10, 14 (June 1989). Thus, Moorman was disciplined for an "attempt" t o possess a firearm as a convicted felon. His discipline consisted of the loss of 16 days good time, 15 days of the highest level of disciplinar y detenti on, and 107 days in progressively less restricted disciplinar y detention. Moorman was paroled on October 26, 1990, after serving si x 2 years of his sentence.

Moo rman's state court postconviction action challenging th e disciplinary action was declared moot because he was paroled before it cam e to trial. He filed this section 1983 action in July 1991. The district

3 court determined ther e was no evidence that Moorman had violated Rules 41 and 11. It therefore ruled that the prison officials had violate d Moorman's due process rights when they disciplined him. The court found that Moorman was inju red by the disciplinary detention and by the loss of wages incurred due to his transfer to a higher security institution. It awarded $3,602.55 in damages for those injuries.
Moorman, who was paroled within a ye ar of the incident, also claimed that but for the discipline he would have been paroled sooner. H e requested damages for the delay. The district court found that there was no credible evidence that Moorman's parole was

### -4-

delayed by the discipline, and that, in any case, the exchange for which Moorman was disciplined would have been proper grounds for such a delay. Therefore, the court found that Moorman had suff ered no injury and refused to awar d any damages for the alleged delay. The district court did no t consider or award any damages for the loss of good time.

Moorman appeals the court's damages award, claiming that he shoul d have been compensated not just for the disciplinary segregation but also for the transfer from a minimum to a medium security institution and for the a lleged delay in parole. The prison officials appeal the distric t court's r uling on the merits and its denial of their claim of qualifie d immunity.

II. DISCUSSION

A. Claims of the Prison Officials

The question of qualified immunity is an issue of law which we review de novo. White v. Holmes , 21 F.3d 277, 279 (8th Cir. 1994). To consider a prisoner's claim against a prison official, we must firs t det ermine whether he or she has alleged the violation of a federa l statutory or constitutional right, and if so, whether that right is clearl y established. Id. ; Ge t Away Club, Inc. v. Coleman , 969 F.2d 664, 666 (8th Cir. 1992). If the conduct complained of violates no constitutional right , the complaint must be dismissed. Get Away , 969 F.2d at 666. In this case , a recent Supreme Court decision and the state of the record make i t uncertain whether Moo rman has alleged the violation of any constitutional rig ht. See Sandin v. Conner , 115 S. Ct. 2293 (1995) (disciplinar y segregated confinement of inmate falls within the expected parameters of pri son sentence, and does not present the type of atypical, significan t deprivation in which a state might conceivably c reate a liberty interest).

### -5- In Sandin , the Court explained that whether an inmate has a liberty interest protected by due process depends on the nature of the interest at stake and not just on the mandatory or precatory nature of th e institutional procedu res governing that interest. Id. at 2299-2300. The Court so held to extricate the federal courts from inappropriat e mic romanagement of the common incidents of prison life which its forme r approach had encouraged. See id. (citing cases claiming or findin g
con stitutionally protected interests in dictionaries, tray lunches , unrestricted furlough travel, big cells with television outlets, food loaf s & boot camp participation). The former emphasis on the mere nature of th e rules without critical consideration of the unde rlying interest encouraged prison ers to make federal cases out of trivial disagreements an d discouraged prisons from codifying their administrative procedures, thus perversely encouraging arbitrary action by rudderless employees. Id. at 2299.

Sandin concluded that the inmate had no liberty interest in avoiding the disciplinary confinement in issue in that case because that confinemen t did not present an atypical and significant depr ivation in relation to the ordina ry incidents of prison life. Id. at 2301. Therefore, the Du e Process Clause was not implicated despite the mandatory nature of the rule s relating to the impos ition of disciplinary confinement. The Court stated that there are some deprivations, and not necessarily those so severe as to independently trigger due process protection, against which states coul d conceiv ably create a liberty interest. Id. at 2300. Those ar e deprivations which work such major disruptions i n a prisoner's environment and life that they present dramatic departures from the basic conditions and ordin ary incidents of prison sentences. Id. at 2300-01. Whil e Conner's segregated and solitary confinement was not such a deprivation, the Court noted that prisoners nonetheless retain protection from arbitrar y state action even within the expected conditions of confinement through th e First and Eighth Amendments, the Equal Protection Clause,

### -6-

internal prison grievance procedures, and state judicial review. Id. at 2302 n.11.

While we are unsure whether Moorman's confinement was a dramati c departure from the ordinary incidents of prison life, we think not

. Admittedly, his environment was disrupted by the transfer, but there is no liberty interest in assignment to any particular prison. See Meachum v. Fano , 427 U.S. 215, 224 (1976). Thus, constitutionally speaking, suc h assignments are discretionary, so long as they a re not done for prohibited
or inv idious reasons and do not rise to independent constitutiona l violatio ns on their own weight. See Vitek v. Jones , 445 U.S. 480, 49 3 (1980); Sisneros v. Nix , 884 F. Supp. 1313, 1346 (S.D. Iowa 1995). Th e disciplinary detention at issue here is within that same category. Moorma n does not allege any i nvidious or prohibited reason for his detention, and the dete ntion appears no more severe than that in Sandin . It does no t appear to have been a disruption exceeding the ordinary incidents of priso n life.
Therefore, the only deprivation of which Moorman may complain i s that of his good time credits. However, as Wolff v. McDonnell makes clear, goo d time credits alone are not liberty interests. 418 U.S. 539, 557 (1974). To be so considered, the state must have created a mandatory scheme which
nece ssarily affects the duration of a prisoner's sentence. See id. ; Sandin , 115 S. Ct. at 2297. Because the loss of good time credits did not enter into the district court's decision, it made no determination as to whether such credits were mandatory in nature or whether their loss injure d Moorman. While neith er party has directed us to any authority on whether Iowa's good time provisions are mandatory in nat ure, we note that the Iowa sta tutes dealing with good time credits simply direct that "[a]n inmat e shall not be discharged from . . . custody . . . until the inmate ha s served the full term . . . less good conduct tim e earned." Iowa Code Ann. § 9 03A.5 (West 1994 & Supp. 1996). Further, the Iowa statutes merel y indicate that inmates are

### Acc ording to the state, even if Moorman has alleged a 4 

### violation of his constitutiona l rights, other recent Supreme Court decisions put into question whether he may vindicate the par ticular violation alleged through a 42 U.S.C. § 1983 action. See Heck v. Humphrey , 114 S. Ct. 2364, 2370 (1994) (a prisoner's actio n challenging the validity or length of confinement must be brought in habeas, but a challenge to procedures underlying confinem ent may be broug ht under section 1983 if use of the wrong procedure doe s not vitiate the confinement itself). A habeas petitioner mu st have exhausted state remedies before bringing a federal habeas pe tition, while a section 1983 plaintiff may proceed directly to federa l court. Moorman points out tha t he did exhaust his state remedies, by bringing his state habeas action which was declared moot. Thus, he argues, finding the label o f this action determinative would be elevat ing form over substance. We are inclined to agree , especially since Heck specific ally distinguishes Wolff as a proper section 1983 action wherein the petitioner sought damages for the use o f the wrong procedure, not restoration of the credits or a remedy which necessarily vitiated their denial. Heck , 114 S. Ct. at 2370. That is what we understand Moorman to be seeking.
-7- eligibl e to receive good time for good behavior, unlike the mandator y statute at issue in Wolff

. Compare Iowa Code Ann. § 903A.2 ("[e]ach inmat e

. . . is eligible for a reduction of sentence . . . for . . . good conduct ) with Wolff , 418 U.S. at 546 n.6 (reproducing the applicable Nebrask a statut e, which directs that the warden "shall" reduce sentences b y specified amounts for good time and that such time "shall" apply t o mandatory parole). F inally, under Iowa law, good time may be revoked for bare "violat[ion of] an institutional rule," Iowa Code Ann. § 903A.3 , whereas the scheme in question in Wolff specifically barred revocation of good ti me credit except in cases of "flagrant or serious misconduct. " Wolff , 418 at 545 n.5. Thus, given its highly d iscretionary nature, it is
unc lear that Iowa's statutory scheme creates a liberty interest in goo d time. 4
However, even assuming that Moorman has alleged the violation of a constitutional right, we find that the district court should have granted the officers qualified immunity.

### -8- The d istrict court based its ruling on its determination that th e "some evidence" rule had been violated, i.e., that there was no evidence that Moorman violated the rule in question. See Superintendent, Mass

. Correctio nal Inst. v. Hill , 472 U.S. 445, 447 & 455 (1985) (due proces s requ ires that "some evidence" support decisions of prison disciplinar y boards affecting liberty interests); Goff v. Dailey , 991 F.2d 1437, 1440-4 2 (8th Cir.) (prison officials' use of "some evidence" burden of proof for disciplinary decisions satisfies due process), cert. denied , 114 S. Ct. 56 4 (1993). In order to do so, the district court evaluated the considerable evidence of the event in question, and, after le gal analysis, decided that that conduct could not constitute an "attempt." We think the distric t court applied the wrong standard and the wrong analysis.

The pro per analysis was not whether there was "some evidence" of a rules violation, which goes to whether there is a sufficient quantum o f evidence for the disciplinary committee to find that the prisoner actually committed the conduct of which he accused. See Superintendent v. Hill , 47 2 U.S. at 455-56 ("some evidence" is evidentiary standard to be applied to factua l findings); Goff , 991 F.2d at 1140-42 (prison officials' factua l fin dings based on "some evidence" burden of proof satisfy due process)

. Rather, the question presented is whether the committee was justified in findi ng that the conduct in question, which was amply supported by th e evidence, constituted a violation of the rules. To decide this issue, we look to the officials' interpretation and applic ation of the prison rules.

Where there is no clearly establishe d judicial interpretation to the contrary, we defer to prison officials' interpretation and application of their rules to the facts so long as that interpr etation and application is not objectively unreasonable. See Henderson v. Baird , 29 F.3d 464, 46 8 (8th C ir. 1994) (interpretation of "assault" to include throwing orang e juice on a

### The prison regulations define attempt as "when, with intent 5 

### to commit an offense, the inma te engages in conduct which tends to effect the commission of such offense." Information Guide at 8.
-9- guard not objectively unreasonable), cert. denie d , 115 S. Ct. 2584 (1995). In this case, as the district court recognized, whether or not the exchang e in question ought to be characterized as an "attempt" depends on whether it amounted to a "plan." See Freitas v. Auger , 837 F.2d 806, 807, 809 , 5 811 (8th Cir. 1988) ( prison may not punish an inmate for attempted escape for simply talking ab out escape, but may punish an inmate for planning or complicity in planning one). The district court, after some analysis , decided that the conduct in this case did not amount to a "plan" because there was no overt ac t. Whether it is the district court's or the prison offici als' determination (as to what constitutes a "plan") that i s ultimately found to be correct, the question is certainly arguable and ope n to debate. Freitas d oes not set out clearly established guidelines as to which verbal exchanges amount to "plans" and which amount to mere talk, no r does it indicate verbal exchanges alone may neve r be "plans." Thus, there
was no established judicial interpretation of "plan" which was patentl y contrary to the officials' application in this case. See Cornell v. Woods , 69 F.3d 1383, 1390 (8th Cir. 1995) (qualified im munity protects officials' disc retionary acts unless pre-existing law renders unlawfulness of ac t apparent).

Th e law of "attempt" is complex and fraught with intricacies an d doctrinal divergences . Qualified immunity protects prison officials from liabil ity for their objectively reasonable efforts to divine whether a
cours e of conduct amounts to an "attempt," even should their answer b e arguably wrong. See Malley v. Briggs , 475 U.S. 335, 341 (1986) (qualified immuni ty protects mistakes, mistaken judgments and "all but the plainl y incompetent or those who knowingly violate the law"); Bartlett v. Fisher , 972 F.2d 911, 914 (8t h Cir. 1992) (qualified immunity protects reasonable

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errors); Gorra v. Hanson , 880 F.2d 95, 97-98 (8th Cir. 1989) (qualifie d immunity protects off icials' reasonable interpretations of law); McCurry v. Tesch , 824 F.2d 63 8, 642 (8th Cir. 1987) (officials need not correctly anticipate appellate interpretation of legal maxims about which even the courts disagree in order to avoid paying damages out of their own pockets)

. The officials, presented with a prisoner nearing his release date detailin g his intentions to obtain the precise weapon which he had previously used to ill-effect, delineating exactly how that weap on was to be acquired, and specifying his backup method for procuring an identical weapon should the first fail, could reasonably interpret such cond uct as a "plan." This is the cl assic situation for which qualified immunity is designed; priso n officials interpreting and applying their disciplinary regulations in a no t objectively unreasonable fashion in order to mai ntain discipline and order in the institution. See generally Sandin , 115 S . Ct. at 2299-301; Bell v. Wolfish , 441 U.S. 520, 544 (1979).

B. Claims of Moorman

Since the district court erred in denying the prison officials' claim of qualified immunity, we do not address Moorman's complaints as to th e inadequacy of his damages award. Moorman's motion to strike the state's Heck argument ( supra n.4) is denied. III. CONCLUSION

Bec ause the prison officials should have been granted qualifie d immunity, we reverse the judgment of the district court and remand wit h directions that judgment be entered in the officials' favor.

### -11- A true copy.

Attest:

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