### The Honorable Donald E. O'Brien, United S tates 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 distric t
co urt's judgment in favor of George Goff in his 42 U.S.C. § 198 3

1 retaliatory discipline and transfer action. We affirm.

I. Background

In th e fall of 1989, Goff was incarcerated at the John Bennet t Correctional Center ( the correctional center), a medium security facility outside the walls of the Iowa State Penitentiary (the penitentiary) at For t Madison, Iowa. On November 29, 1989, Goff informed Unit Manager Marty Run g that he and other inmates intended to file suit against the correctional center to contest overcrowded conditions. According to Goff, priso n officials forbade him from

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preparing for the suit and ordered him not to di scuss or research the case with anyone. Despite this advice, Goff and several other inmates continue d their preparation and filed suit on January 16, 1990.

On Januar y 15, 1990, Kevin Smith, an inmate at the correctiona l center, was transferred to the medical unit at the penitentiary fo r treatment of an injur y that he reported had occurred from falling off the "do ck" outside the kitchen area at the correctional center. Lieutenan t Donald Vail, the pris on official on duty at the time, reported the injury and escorted Smith to the medical unit. Captain James Burton, head of the invest igations unit at the penitentiary, filed a report identifying th e injury as minor.

At some p oint after Smith's reported injury, prison officials began to in vestigate the possibility that Smith's injury was not caused by a fall. According to Lieutenant Vail, this change in positions occurre d after a confidential informant approached him on the evening of th e accident and claimed that he had heard from a th ird inmate that the inmate had witnessed Goff hit Smith. No prison officia l 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 caus e of his injury. Smith, responding affirmatively to Burton's leadin g questions, identified an inmate named "George" as the source of hi s injuries. Following this interview, an unidentified officer, deviatin g fromstandard 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 fo r transfer from the correctional center to a

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minimumsecurity "farm" on January 24, 1990, and then for eventual wor k release. This scheduled transfer never occurred . Instead, on January 23, 1990, Goff was brough t to Burton's office for an interview. According to prison officials, Goff was transferred to the penitentiary because h e refused to speak to Burton. Goff testified at trial that he refused t o talk to Bu rton only because he was not informed of the nature of th e interview.

Formal ch arges were filed against Goff on February 7, 1990, for the alleged assault on Sm ith. 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 retaliatio n for his legal activities against the prison.
At trial Goff presented evidence both of his innocence of the c harged assault and concerning the suspicious timing and irregular procedure s followe d 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 , howev er, 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. Blayke y testified that he was brought back into the penitentiary for questioning
on February 5. At that interview Burton informed him that prison official s knew that Goff had assaulted Smith. Blaykey testified that Burton the n 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 bec ause he knew nothing of an assault he could provide the prison officials with no information. Despit e his f ailure to cooperate, Blaykey was classified to return to th e correctional center approximately thirty days af ter 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."

Gof f presented testimony concerning several apparent procedura l 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 th e Smith inc ident until January 23. This delay was contrary to priso n polici es requiring swift action in response to an alleged assault

. Moreover, at the time of his transfer Goff was not informed that he was a susp ect in the alleged assault, and the prison transfer memo did no t mention the assault. Following his transfer, Goff spent several weeks in the penitentiary before he was actually charged with the assault.

Fi nally, Goff presented some direct evidence of prison retaliatio n 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 distr ict 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 w e reversed, finding that the district court had failed to apply the "but for " standa rd in determining whether Goff's transfer was retaliatory and ha d fai led to apply the "some evidence" standard in determining whether th e 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, th e district court applied these standards to its previous findings of fact an d again found in Goff's favor.

II. Retaliatory Transfer

"Althoug h a prisoner enjoys no constitutional right to remain at a particular institution, and although generally prison officials ma y transfer a prisoner for whatever reason or no reason at all, a prisone r 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 trans fer claim, Goff must prove that a desire to retaliate was the actual motivating factor behind th e tran sfer. Id. In other words, Goff must prove that but for his lega l actions ag ainst the prison, he would not have been transferred to th e 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 surroundin g Goff's transfer gave rise to an inference of retaliation. That inference was then strengthened by evidence that the defendants deviated from their
no rmal procedure of immediately transferring a prisoner suspected o f assault, and the transfer memo did not mention the assault. Indeed, Burto n 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 c harges until February 7. Burton also admitted that Goff' s detention in the penitentiary for several weeks without an investigation was atypical. Couple d 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 transf erred because of his legal work.

Whether we would characterize this e vidence as "overwhelming" is not the point. The quest ion is whether the district court's finding that the defendants retaliated against Goff by transferri ng 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 f or his initiating legal action against the prison is eq ually 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 defenda nts must simply prove that there was "some evidence" supporting their decision to discipline Goff, fo r if the contested disc ipline was imposed for an actual violation of prison rules, the retaliatory discipline claim must fail. Cornell , 69 F.3d a t 1389. On remand the district court concluded th at by failing to offer any credible evidence tha t Goff committed the alleged assault, the defendants failed to satisfy the "some evidence" standard.

The district court noted that the co nfidential informant's statement lacked sufficient indicia of reliability, as the informant communicate d only what somebody else had said that he saw. The court further noted tha t the sus pect nature of this evidence was heightened by the defendants ' fail ure to properly investigate the confidential informant's source o f knowledge

. We perceive no error in the district court's ruling, for w e have repeatedly held that the district court must make a determination of the re liability of a confidential informant to determine whether som e evidence exists to support a disciplinary committee's

### Smith was subsequently transferred to ano ther medium security 2 

### facility. The parties contest, however, and the record does no t disc lose, whether this facility was more favorable than th e correctional center.
-7- dec ision. See Earnest v. Courtney , 64 F.3d 365, 367 (8th Cir. 1995) ; Turner v. Caspari , 38 F.3d 388, 393 (8th Cir. 19 94); Freitas v. Auger , 837 F.2d 8 06, 810 (8th Cir. 1988). "A bald assertion by an unidentifie d person, without more, cannot constitute some evi dence of guilt." Freitas , 837 F.2d at 810.
The only other evidence offered was the transcript of the defen dants' interview with Smith. In finding this evidence to be unreliable, th e district court pointed to the inconsistent nature of Smith's statements, Smith's fa ilure to testify under oath at any time, Smith's failure t o testi fy at the hearing, and the fact that the statements were procure d through leading questions and with the promised reward of transfer to a more desir able 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 adequ ate to satisfy the requirement of the Due Process Clause that th e decisions of prison administrators must have some basis in fact. Se e Superintendent v. Hill , 472 U.S. 445, 456 (1985) . As indicated above, the dis trict 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 an d 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 i s subject to the defendants' argument that the district court did not heed the Su preme Court's admonition in Superintendent v. Hill that i n 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.
-8- satisfie d, courts are not to make an independent assessment of th e credibility of witnesses or weigh the evidence. Id. at 455. We conclude, however, that the "so me evidence" standard does not so cabin the scope of judicial review as to require that credence be given to that evidence whic h
common sense and experience suggest is incredible. Accordingly, w e conclude that the district court did not err in subjecting Smith' s sta tements to this minimal level of review and in finding that th e defendants' decision to discipline Goff lacked a basis in fact and was thu s retaliatory.

IV. Failure to State a Claim

The defendants next contend that Gof f's action for damages is barred by the holding in Heck v. Humphrey , 114 S. Ct. 2364 (1994). The defendant s failed to raise this contention below, however, even though Heck wa s decided eleven months before the fina l proceedings in the district court. 3 Accordingl y, 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 amoun t awarded. The district court awarded Goff $2,250 in damages for 225 days spent in segregation as a result of his transfer from the correctiona l center to the penitentiary. In making this awar d, the district court took judicia l notice of numerous prison policies concerning the additiona l
res trictions imposed on Goff during his time spent at the penitentiary

. We conclude that the district court did not abuse its discretion in valuin g 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 $2 5 and $129 per day).
The judgment is affirmed.

A true copy.

Attest:

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