___________

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 Moorman was disciplined after he was found to have violated

prison regulations. The discipline included the loss of sixteen days of

good time. He filed suit under 42 U.S.C. § 1983 claiming that prison

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 determination of damages and the prison officials appeal both

the district court's denial of qualified immunity and its determination of

liability on the merits. We reverse.

I. BACKGROUND

In 1984, Moorman was sentenced to twenty-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 interchange between Moorman

and a fellow inmate about obtaining handguns. Moorman, who was

anticipating release in the near future, stated that he intended to obtain

his father's gun again immediately upon his release from prison. Moorman

also stated that if he could not persuade his father to give him the .357

magnum (which both inmates agreed was the most desirable model), he would

go out and purchase one.

The guard filed a disciplinary report and Moorman was disciplined

under prison rules 41 and 11. Rule 11 forbids inmates from engaging in

conduct which is a felony under state or federal
 Moorman was also transferred from a minimum security

2

institution to a medium security institution as a result of the

disciplinary report.

 Moorman's motion for summary judgment claiming issue

3

preclusion, which was based on an eventual state court finding in

favor of the other inmate, was correctly denied by the district

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. 

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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 [offenses

covered by Rule 11]." Information Guide, Iowa State Men's Reformatory, pp.

10, 14 (June 1989). Thus, Moorman was disciplined for an "attempt" to

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 disciplinary

detention, and 107 days in progressively less restricted disciplinary

detention. Moorman was paroled on October 26, 1990, after serving six

2

years of his sentence.

Moorman's state court postconviction action challenging the

disciplinary action was declared moot because he was paroled before it came

to trial. He filed this section 1983 action in July 1991. The district 3

court determined there was no evidence that Moorman had violated Rules 41

and 11. It therefore ruled that the prison officials had violated

Moorman's due process rights when they disciplined him. The court found

that Moorman was injured 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 year of the incident, also claimed

that but for the discipline he would have been paroled sooner. He

requested damages for the delay. The district court found that there was

no credible evidence that Moorman's parole was
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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 suffered no injury and refused

to award any damages for the alleged delay. The district court did not

consider or award any damages for the loss of good time.

Moorman appeals the court's damages award, claiming that he should

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 alleged delay in parole. The prison officials appeal the district

court's ruling on the merits and its denial of their claim of qualified

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 first

determine whether he or she has alleged the violation of a federal

statutory or constitutional right, and if so, whether that right is clearly

established. Id.; Get 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 it

uncertain whether Moorman has alleged the violation of any constitutional

right. See Sandin v. Conner, 115 S. Ct. 2293 (1995) (disciplinary

segregated confinement of inmate falls within the expected parameters of

prison sentence, and does not present the type of atypical, significant

deprivation in which a state might conceivably create a liberty interest).
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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 the

institutional procedures governing that interest. Id. at 2299-2300. The

Court so held to extricate the federal courts from inappropriate

micromanagement of the common incidents of prison life which its former

approach had encouraged. See id. (citing cases claiming or finding

constitutionally protected interests in dictionaries, tray lunches,

unrestricted furlough travel, big cells with television outlets, food loafs

& boot camp participation). The former emphasis on the mere nature of the

rules without critical consideration of the underlying interest encouraged

prisoners to make federal cases out of trivial disagreements and

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 confinement

did not present an atypical and significant deprivation in relation to the

ordinary incidents of prison life. Id. at 2301. Therefore, the Due

Process Clause was not implicated despite the mandatory nature of the rules

relating to the imposition 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 could

conceivably create a liberty interest. Id. at 2300. Those are

deprivations which work such major disruptions in a prisoner's environment

and life that they present dramatic departures from the basic conditions

and ordinary incidents of prison sentences. Id. at 2300-01. While

Conner's segregated and solitary confinement was not such a deprivation,

the Court noted that prisoners nonetheless retain protection from arbitrary

state action even within the expected conditions of confinement through the

First and Eighth Amendments, the Equal Protection Clause,
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internal prison grievance procedures, and state judicial review. Id. at

2302 n.11. 

While we are unsure whether Moorman's confinement was a dramatic

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, such

assignments are discretionary, so long as they are not done for prohibited

or invidious reasons and do not rise to independent constitutional

violations on their own weight. See Vitek v. Jones, 445 U.S. 480, 493

(1980); Sisneros v. Nix, 884 F. Supp. 1313, 1346 (S.D. Iowa 1995). The

disciplinary detention at issue here is within that same category. Moorman

does not allege any invidious or prohibited reason for his detention, and

the detention appears no more severe than that in Sandin. It does not

appear to have been a disruption exceeding the ordinary incidents of prison

life.

Therefore, the only deprivation of which Moorman may complain is that

of his good time credits. However, as Wolff v. McDonnell makes clear, good

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

necessarily 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 injured

Moorman. While neither party has directed us to any authority on whether

Iowa's good time provisions are mandatory in nature, we note that the Iowa

statutes dealing with good time credits simply direct that "[a]n inmate

shall not be discharged from . . . custody . . . until the inmate has

served the full term . . . less good conduct time earned." Iowa Code Ann.

§ 903A.5 (West 1994 & Supp. 1996). Further, the Iowa statutes merely

indicate that inmates are
 According to the state, even if Moorman has alleged a

4

violation of his constitutional rights, other recent Supreme Court

decisions put into question whether he may vindicate the particular

violation alleged through a 42 U.S.C. § 1983 action. See Heck v.

Humphrey, 114 S. Ct. 2364, 2370 (1994) (a prisoner's action

challenging the validity or length of confinement must be brought

in habeas, but a challenge to procedures underlying confinement may

be brought under section 1983 if use of the wrong procedure does

not vitiate the confinement itself). A habeas petitioner must have

exhausted state remedies before bringing a federal habeas petition,

while a section 1983 plaintiff may proceed directly to federal

court. Moorman points out that he did exhaust his state remedies,

by bringing his state habeas action which was declared moot. Thus,

he argues, finding the label of this action determinative would be

elevating form over substance. We are inclined to agree,

especially since Heck specifically distinguishes Wolff as a proper

section 1983 action wherein the petitioner sought damages for the

use of 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. 

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eligible to receive good time for good behavior, unlike the mandatory

statute at issue in Wolff. Compare Iowa Code Ann. § 903A.2 ("[e]ach inmate

. . . is eligible for a reduction of sentence . . . for . . . good conduct)

with Wolff, 418 U.S. at 546 n.6 (reproducing the applicable Nebraska

statute, which directs that the warden "shall" reduce sentences by

specified amounts for good time and that such time "shall" apply to

mandatory parole). Finally, 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 time credit except in cases of "flagrant or serious misconduct."

Wolff, 418 at 545 n.5. Thus, given its highly discretionary nature, it is

unclear that Iowa's statutory scheme creates a liberty interest in good

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.
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The district court based its ruling on its determination that the

"some evidence" rule had been violated, i.e., that there was no evidence

that Moorman violated the rule in question. See Superintendent, Mass.

Correctional Inst. v. Hill, 472 U.S. 445, 447 & 455 (1985) (due process

requires that "some evidence" support decisions of prison disciplinary

boards affecting liberty interests); Goff v. Dailey, 991 F.2d 1437, 1440-42

(8th Cir.) (prison officials' use of "some evidence" burden of proof for

disciplinary decisions satisfies due process), cert. denied, 114 S. Ct. 564

(1993). In order to do so, the district court evaluated the considerable

evidence of the event in question, and, after legal analysis, decided that

that conduct could not constitute an "attempt." We think the district

court applied the wrong standard and the wrong analysis.

The proper analysis was not whether there was "some evidence" of a

rules violation, which goes to whether there is a sufficient quantum of

evidence for the disciplinary committee to find that the prisoner actually

committed the conduct of which he accused. See Superintendent v. Hill, 472

U.S. at 455-56 ("some evidence" is evidentiary standard to be applied to

factual findings); Goff, 991 F.2d at 1140-42 (prison officials' factual

findings based on "some evidence" burden of proof satisfy due process).

Rather, the question presented is whether the committee was justified in

finding that the conduct in question, which was amply supported by the

evidence, constituted a violation of the rules. To decide this issue, we

look to the officials' interpretation and application of the prison rules.

Where there is no clearly established judicial interpretation to the

contrary, we defer to prison officials' interpretation and application of

their rules to the facts so long as that interpretation and application is

not objectively unreasonable. See Henderson v. Baird, 29 F.3d 464, 468

(8th Cir. 1994) (interpretation of "assault" to include throwing orange

juice on a
 The prison regulations define attempt as "when, with intent 5

to commit an offense, the inmate engages in conduct which tends to

effect the commission of such offense." Information Guide at 8.

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guard not objectively unreasonable), cert. denied, 115 S. Ct. 2584 (1995).

In this case, as the district court recognized, whether or not the exchange

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 about 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 act. Whether it is the district court's or the prison

officials' determination (as to what constitutes a "plan") that is

ultimately found to be correct, the question is certainly arguable and open

to debate. Freitas does not set out clearly established guidelines as to

which verbal exchanges amount to "plans" and which amount to mere talk, nor

does it indicate verbal exchanges alone may never be "plans." Thus, there

was no established judicial interpretation of "plan" which was patently

contrary to the officials' application in this case. See Cornell v. Woods,

69 F.3d 1383, 1390 (8th Cir. 1995) (qualified immunity protects officials'

discretionary acts unless pre-existing law renders unlawfulness of act

apparent). 

The law of "attempt" is complex and fraught with intricacies and

doctrinal divergences. Qualified immunity protects prison officials from

liability for their objectively reasonable efforts to divine whether a

course of conduct amounts to an "attempt," even should their answer be

arguably wrong. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified

immunity protects mistakes, mistaken judgments and "all but the plainly

incompetent or those who knowingly violate the law"); Bartlett v. Fisher,

972 F.2d 911, 914 (8th Cir. 1992) (qualified immunity protects reasonable
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errors); Gorra v. Hanson, 880 F.2d 95, 97-98 (8th Cir. 1989) (qualified

immunity protects officials' reasonable interpretations of law); McCurry

v. Tesch, 824 F.2d 638, 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 detailing

his intentions to obtain the precise weapon which he had previously used

to ill-effect, delineating exactly how that weapon was to be acquired, and

specifying his backup method for procuring an identical weapon should the

first fail, could reasonably interpret such conduct as a "plan." This is

the classic situation for which qualified immunity is designed; prison

officials interpreting and applying their disciplinary regulations in a not

objectively unreasonable fashion in order to maintain 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 the

inadequacy of his damages award. Moorman's motion to strike the state's

Heck argument (supra n.4) is denied. 

III. CONCLUSION

Because the prison officials should have been granted qualified

immunity, we reverse the judgment of the district court and remand with

directions that judgment be entered in the officials' favor. 
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A true copy.

Attest:

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