The Honorable Donald E. O'Brien, United States District Judge 1

for the Southern District of Iowa.

___________

No. 95-3289

___________

George Goff, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

James R. Burton, John Henry, *

Crispus Nix, *

*

Appellants. *

___________

 Submitted: April 10, 1996

 Filed: August 8, 1996

___________

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Defendant prison officials (the defendants) appeal the district

court's judgment in favor of George Goff in his 42 U.S.C. § 1983

1

retaliatory discipline and transfer action. We affirm.

I. Background

In the fall of 1989, Goff was incarcerated at the John Bennett

Correctional Center (the correctional center), a medium security facility

outside the walls of the Iowa State Penitentiary (the penitentiary) at Fort

Madison, Iowa. On November 29, 1989, Goff informed Unit Manager Marty Rung

that he and other inmates intended to file suit against the correctional

center to contest overcrowded conditions. According to Goff, prison

officials forbade him from 
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preparing for the suit and ordered him not to discuss or research the case

with anyone. Despite this advice, Goff and several other inmates continued

their preparation and filed suit on January 16, 1990. 

On January 15, 1990, Kevin Smith, an inmate at the correctional

center, was transferred to the medical unit at the penitentiary for

treatment of an injury that he reported had occurred from falling off the

"dock" outside the kitchen area at the correctional center. Lieutenant

Donald Vail, the prison official on duty at the time, reported the injury

and escorted Smith to the medical unit. Captain James Burton, head of the

investigations unit at the penitentiary, filed a report identifying the

injury as minor.

At some point after Smith's reported injury, prison officials began

to investigate the possibility that Smith's injury was not caused by a

fall. According to Lieutenant Vail, this change in positions occurred

after a confidential informant approached him on the evening of the

accident and claimed that he had heard from a third inmate that the inmate

had witnessed Goff hit Smith. No prison official ever met with this third

inmate, however, who was the only alleged witness to the encounter. 

On January 17, Captain Burton questioned Smith regarding the cause

of his injury. Smith, responding affirmatively to Burton's leading

questions, identified an inmate named "George" as the source of his

injuries. Following this interview, an unidentified officer, deviating

from standard prison policy, showed Smith one picture, that of Goff, and

Smith allegedly identified Goff as his attacker.

On January 19 prison officials were served with notice of Goff's

civil lawsuit against the correctional center. Goff had been scheduled for

transfer from the correctional center to a 
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minimum security "farm" on January 24, 1990, and then for eventual work

release. This scheduled transfer never occurred. Instead, on January 23,

1990, Goff was brought to Burton's office for an interview. According to

prison officials, Goff was transferred to the penitentiary because he

refused to speak to Burton. Goff testified at trial that he refused to

talk to Burton only because he was not informed of the nature of the

interview.

Formal charges were filed against Goff on February 7, 1990, for the

alleged assault on Smith. He was found guilty as charged and received 15

days' isolation, a year in lockup, and loss of one year's good-time credit.

Goff then filed this suit against Burton, Warden Crispus Nix, and Deputy

Warden John Henry, alleging that he was innocent of the assault and that

he was transferred and disciplined in retaliation for his legal activities

against the prison.

At trial Goff presented evidence both of his innocence of the charged

assault and concerning the suspicious timing and irregular procedures

followed in the investigation against him. Direct evidence of Goff's

innocence was offered through the testimony of fellow inmates Dudie Rose

and Kevin Blaykey. Both inmates testified that they were with Goff in the

cafeteria at the time of the alleged assault and that they did not witness

any contact between Goff and Smith, much less an assault. 

Smith did not testify at trial. At his January 17 interview,

however, he stated that both Blaykey and an inmate fitting Rose's

description were with Goff at the time of the assault. Prison officials

never attempted to ascertain the identity of or to interview Rose. Blaykey

testified that he was brought back into the penitentiary for questioning

on February 5. At that interview Burton informed him that prison officials

knew that Goff had assaulted Smith. Blaykey testified that Burton then

promised him that if Blaykey told them what he knew he would be sent back

to the
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correctional center. Blaykey testified that because he knew nothing of an

assault he could provide the prison officials with no information. Despite

his failure to cooperate, Blaykey was classified to return to the

correctional center approximately thirty days after he was brought in. He

chose not to go, however, stating that he "didn't want to go out there and

keep coming back in here for stupid stuff." 

Goff presented testimony concerning several apparent procedural

irregularities in the investigation that led to his ultimate discipline.

First, although Smith's injuries occurred on January 15 and he allegedly

implicated Goff two days later, Goff was not questioned concerning the

Smith incident until January 23. This delay was contrary to prison

policies requiring swift action in response to an alleged assault.

Moreover, at the time of his transfer Goff was not informed that he was a

suspect in the alleged assault, and the prison transfer memo did not

mention the assault. Following his transfer, Goff spent several weeks in

the penitentiary before he was actually charged with the assault.

 

Finally, Goff presented some direct evidence of prison retaliation

in the form of inmate Russell Buckley's testimony. Buckley testified to

a conversation with Correctional Officer Hawk, during which Officer Hawk

informed him that the reason for Goff's transfer to the penitentiary was

Goff's legal work against the prison. 

The district court found in Goff's favor, ordered his transfer back

to the correctional center, and awarded him $2,250 in damages and credit

against future discipline for 225 days served in lockup. On appeal we

reversed, finding that the district court had failed to apply the "but for"

standard in determining whether Goff's transfer was retaliatory and had

failed to apply the "some evidence" standard in determining whether the

disciplinary action taken against Goff was retaliatory. Goff v. Burton,

7 F.3d 734 
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(8th Cir. 1993), cert. denied, 114 S. Ct. 2684 (1994). On remand, the

district court applied these standards to its previous findings of fact and

again found in Goff's favor.

II. Retaliatory Transfer

"Although a prisoner enjoys no constitutional right to remain at a

particular institution, and although generally prison officials may

transfer a prisoner for whatever reason or no reason at all, a prisoner

cannot be transferred in retaliation for the exercise of a constitutional

right." Goff, 7 F.3d at 737 (internal quotations and citations omitted).

To prevail on his section 1983 retaliatory transfer claim, Goff must prove

that a desire to retaliate was the actual motivating factor behind the

transfer. Id. In other words, Goff must prove that but for his legal

actions against the prison, he would not have been transferred to the

penitentiary. Id.

On remand the district court found "overwhelming" evidence that but

for the defendants' improper motive, Goff would not have been transferred.

We review this factual finding for clear error. Cornell v. Woods, 69 F.3d

1383, 1388 (8th Cir. 1995). 

The district court noted that the chronology of events surrounding

Goff's transfer gave rise to an inference of retaliation. That inference

was then strengthened by evidence that the defendants deviated from their

normal procedure of immediately transferring a prisoner suspected of

assault, and the transfer memo did not mention the assault. Indeed, Burton

admitted that he had all of the information tending to show Goff's guilt

on January 17; yet he did not contact his superiors to determine whether

to file charges until February 7. Burton also admitted that Goff's

detention in the penitentiary for several weeks without an investigation

was atypical. Coupled with this is Russell Buckley's testimony that when

he asked Officer Hawk why Goff had been 
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transferred, Hawk responded that Goff was transferred because of his legal

work. 

Whether we would characterize this evidence as "overwhelming" is not

the point. The question is whether the district court's finding that the

defendants retaliated against Goff by transferring him to the penitentiary

is clearly erroneous, and we conclude that it is not.

III. Retaliatory Discipline

The prohibition against transferring an inmate in retaliation for his

initiating legal action against the prison is equally applicable to prison

officials' decision to discipline an inmate in retaliation for his legal

activities. The standard, however, is different. To avoid liability on

Goff's retaliatory discipline claim, the defendants must simply prove that

there was "some evidence" supporting their decision to discipline Goff, for

if the contested discipline was imposed for an actual violation of prison

rules, the retaliatory discipline claim must fail. Cornell, 69 F.3d at

1389. On remand the district court concluded that by failing to offer any

credible evidence that Goff committed the alleged assault, the defendants

failed to satisfy the "some evidence" standard.

The district court noted that the confidential informant's statement

lacked sufficient indicia of reliability, as the informant communicated

only what somebody else had said that he saw. The court further noted that

the suspect nature of this evidence was heightened by the defendants'

failure to properly investigate the confidential informant's source of

knowledge. We perceive no error in the district court's ruling, for we

have repeatedly held that the district court must make a determination of

the reliability of a confidential informant to determine whether some

evidence exists to support a disciplinary committee's 
 Smith was subsequently transferred to another medium security 2

facility. The parties contest, however, and the record does not

disclose, whether this facility was more favorable than the

correctional center.

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decision. See Earnest v. Courtney, 64 F.3d 365, 367 (8th Cir. 1995);

Turner v. Caspari, 38 F.3d 388, 393 (8th Cir. 1994); Freitas v. Auger, 837

F.2d 806, 810 (8th Cir. 1988). "A bald assertion by an unidentified

person, without more, cannot constitute some evidence of guilt." Freitas,

837 F.2d at 810.

The only other evidence offered was the transcript of the defendants'

interview with Smith. In finding this evidence to be unreliable, the

district court pointed to the inconsistent nature of Smith's statements,

Smith's failure to testify under oath at any time, Smith's failure to

testify at the hearing, and the fact that the statements were procured

through leading questions and with the promised reward of transfer to a

more desirable facility. Again, we see no error in the district court's 2

ruling, for if "some evidence" is to be distinguished from "no evidence,"

it must possess at least some minimal probative value if it is to be found

adequate to satisfy the requirement of the Due Process Clause that the

decisions of prison administrators must have some basis in fact. See

Superintendent v. Hill, 472 U.S. 445, 456 (1985). As indicated above, the

district court did not err in finding that the confidential informant's

statement did not meet this minimal threshold of reliability. Likewise,

Smith's statements, although not cloaked in the garb of anonymity, were,

as the district court found, rendered so suspect by the manner and

circumstances in which given as to fall short of constituting a basis in

fact for the defendants' decision to impose discipline upon Goff.

We acknowledge that this latter finding by the district court is

subject to the defendants' argument that the district court did not heed

the Supreme Court's admonition in Superintendent v. Hill that in

ascertaining whether the "some evidence" standard has been 
 Heck was decided on June 24, 1994. The last hearing before 3

the district court occurred on May 31, 1995.

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satisfied, courts are not to make an independent assessment of the

credibility of witnesses or weigh the evidence. Id. at 455. We conclude,

however, that the "some evidence" standard does not so cabin the scope of

judicial review as to require that credence be given to that evidence which

common sense and experience suggest is incredible. Accordingly, we

conclude that the district court did not err in subjecting Smith's

statements to this minimal level of review and in finding that the

defendants' decision to discipline Goff lacked a basis in fact and was thus

retaliatory.

IV. Failure to State a Claim

The defendants next contend that Goff's action for damages is barred

by the holding in Heck v. Humphrey, 114 S. Ct. 2364 (1994). The defendants

failed to raise this contention below, however, even though Heck was

decided eleven months before the final proceedings in the district court.3

Accordingly, we will not consider it on appeal. See Fed. R. Civ. P.

12(h)(2).

V. Damages

Finally, the defendants contend that Goff did not establish a claim

for damages, and that in any event he is not entitled to the amount

awarded. The district court awarded Goff $2,250 in damages for 225 days

spent in segregation as a result of his transfer from the correctional

center to the penitentiary. In making this award, the district court took

judicial notice of numerous prison policies concerning the additional

restrictions imposed on Goff during his time spent at the penitentiary.

We conclude that the district court did not abuse its discretion in valuing

Goff's lost privileges at ten dollars per day. See Stevens v. McHan, 3

F.3d 1204 (8th Cir. 1993) (identifying standard of review and citing 
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cases suggesting an appropriate damage range for lockup time is between $25

and $129 per day). 

The judgment is affirmed.

A true copy.

Attest:

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