* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 10th Cir. R. 36.3.



### UNITED STATES COURT OF APPEALS Filed 10/28/96 TENTH CIRCUIT

HERMAN JUNIOR REVELLO, JR., Plaintiff-Appellant,

v. SERGEANT CARL HANSEN, CHIEF RONALD BLASKO, Defendants-Appellees. No. 96-1113 (D.C. No. 94-B-786) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, KELLY and LUCERO , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.-2-

Herman Junior ReVello, Jr. appeals the district cou rt’s grant of summary judgment in favor of defendants in his civil rights action filed pursuant to 42 U.S.C. § 1983. We review the grant of summary judg ment de novo. Eaton v. Jarvis Prods. Corp ., 965 F.2d 922, 925 (10th Cir. 1992). Summary jud gment is appropriate when there is no genuine issue of mater ial fact and the moving party is entitled to judgment as a matter of law. Id . We construe the facts in the light most favorable to the party opposing the motion. I d

. On March 8, 1994, while Mr. ReVello was a pretrial detainee at the Adams County Correctional Facility in Colorado, a cell be lieved to be Mr. ReVello’s was searched as part of a unit shakedown. Contraband w as found in the form of a tattoo pin made from a pencil and a toothbrush sharpened into a shank. Disciplinary charges were filed that day. Mr. ReVe llo was served with written notice of the charges, and a disciplinary hearing w as scheduled. At the hearing, it was pointed out that Mr. ReVello resided in Cell B- 226, whereas the report describing the cell search stated that contraband h ad been found in cell B-228. Based on that discrepancy, the hearing officer, Ser geant Hansen, stated he would recommend a finding of “not guilty.” During the th ree-day waiting period between the hearing and the final disposition of th e case, Sergeant Hansen investigated the discrepancy in cell number. Serge ant DeBaca, one of the officers who had conducted the cell search, confirmed that the appearance of B-228 as the-3-

cell number on the report was a clerical error, andthat she was sure the contraband was found in B-226, Mr. ReVello’s cell, because she saw correspondence in the cell with Mr. ReVello’s name on it. Sergeant Hansen then recommended a guilty verdict against Mr. ReVello an d a punishment of six days of lockdown, which was approved by Chief Blasko. After an administrative appeal, Mr. ReVello filed t his section 1983 action against Sergeant Hansen and Chief Blasko, seeking d amages for First, Eighth and Fourteenth Amendment violations which, among other things, included a failure to provide him a hearing on the charges. The distr ict court dismissed for failure to allege facts which would support any claim for r elief. On appeal, we dismissed Mr. ReVello’s First and Eighth Amendment claims, but reversed and remanded for further proceedings on his due process claims. Relying on Lucero v. Gunter , 17 F.3d 1347, 1351 (10th Cir. 1994), we noted that Mr. ReVello was due the opportunity to call witnesses and present evidence at his hearing. We could not tell from the record “whether Mr. ReVello had a su fficient opportunity to present evidence at his disciplinary proceeding.” Rec., vo l. I, doc. 16, at 3. We remanded the case for further proceedings to resolv e whether Sergeant Hansen “noticed the discrepancy [in cell numbers] prior to Mr. ReVello’s defense or whether the discrepancy constituted that defense.” Id

.-4-

On remand, and in response to Defendant’s Motion to Dismiss/Summary Judgment, Mr. ReVello stated that he “did have the opportunity to present evidence and witnesses in his defense” at the disci plinary hearing and chose not to because the only witnesses he could call were th e corrections officers who had performed the search. Id ., doc. 33, at 3. He admits that “his defense was that cell B-228, the location of the alleged violation[,] was not his cell.” Id . at 2. Based on those admissions, the magistrate judge con cluded that Mr. ReVello had “raised the cell discrepancy as his def ense and his due process right to call witnesses and present evidence was preserve d,” and recommended dismissal or summary judgment. Id ., doc. 33, at 3. On a de novo review, the district court agreed, and granted summary judgmentto defendants. We also agree that there are no genuine issues of material fact as to whether Mr. ReVello had the opportunity to present witnesses and eviden ce at his disciplinary hearing. We therefore affirm the district court’s grant of s ummary judgment to defendants. We note, in passing, defendants’ argument in the al ternative that even if Mr. ReVello had been deprived of the opportunity to call witnesses and present evidence at his disciplinary hearing, he was “not e ntitled to the procedural protections of the Due Process Clause” in this case under Sandin v. Conner , ___ U.S. ___, ___, 115 S. Ct. 2293, 2300 (1995). But see Mitchell v. Dupnik , 75 F.3d 517, 523-24 (9th Cir. 1996) (holding Sandininapplicable to pretrial-5-

detainee). Because Mr. ReVello had the opportunityto call witnesses and present evidence at his disciplinary hearing, it is not nec essary for us to decide whether Sandinapplies to pretrial detainees like Mr. ReVello. We AFFIRM the district court’s grant of summary jud gment to defendants on Mr. ReVello’s due process claim.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge