UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

___________ No. 95-4037

___________ Robert Driscoll, * * Appellant, * * v. * * Larry Youngman, * * Appeal from the United States Defendant, * District Court for the * Eastern District of Missouri Paul K. Delo; Fred Johnson; * George E. White; Don Roper, * {UNPUBLISHED} * Appellees, * * Mike Rawson, * * Defendant. *

___________ Submitted: August 3, 1996 Filed: September 22, 1997

___________ Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

___________
PER CURIAM.The Honorable Carol E. Jackson, United States District Judge for the Eastern 1 District of Missouri. The Honorable Catherine D. Perry, then United States Magistrate Judge for the 2 Eastern District of Mi ssouri, now United States District Judge for the Eastern District of Missouri. -2- Robert Driscoll appeals from the final judgment of the United States Distric t Court for the Eastern District of Missouri granting summary judgment to priso n

1 officials in this 42 U.S .C. § 1983 action. For the reasons discussed below, we affirm . Driscoll, an inmate at the Potosi Correctional Center (PCC), filed a complain t alleging, inter alia, that on September 14, 1992, defe ndant Larry Youngman issued him a false conduct violation (CV) charging him with violating Rule #5--Riot--by “bein g presen t” at an August 16 incident and “supporting those inmates who were fighting.” Driscoll appeared at a September 22 disciplinary hearing, at which defendants Fre d Johnson a nd George White found him guilty and sentenced him to thirty days i n disciplinary segregation, referred the matter for criminal prosecution, a nd recommended ref erral to administrative segregation. Defendant Don Roper approved the action

. Driscoll alleged that the CV did not state any facts supportingthe violation, and he was never advised what evidence defendants relied on to support the guilt finding. Driscoll also challenged the con ditions of his confinement, claiming he was denied meaningful exercise, natural light, and adequate time in the library. Adopting the magistrate judge & s recommendations, the district court dismissed 2 as legally frivolous Driscoll & s claims that he was denied access to the courts and natural light, but allowed him to proceed in forma pauperis on the other claims. Defendants then m oved for summary judgment, and submitted documentary evidence in support thereof. Driscoll

also moved for summary judgment, asserting that he spent 135 days in the “hole,” and arguing that the evidence submitted in defendants & summary-3-

judgment motion conclusively established he was entitled to judgment as a matter of law. On October 31, 1994, the district court granted judgment as a matter of law to Driscoll on his due process claim, concluding that there was not “some evidence” to support t he guilt determination. The district court further concluded defendants were not entitled to qualified immunity, and postponed a determination of damages for the time Driscoll spent i n disciplinary and administrative segregation. Defendants moved to reconsider this grant of summary judgment. On July 31, 1995, defendants supplemented their motion for summary judgment, arguing that in light of the Supreme Court & s decision in Sandin v . Conner , 515 U.S. 472 (1 995) ( Sandin ), Driscoll had no liberty interest in remaining free from segregatio n be cause he did not show it resulted in an atypical or significant deprivation fallin g outside the expected parameters of the sentence imposed. The distri ct court agreed and granted defendants & summary judgment.
Driscoll & s argument that Sandin v. Conner is no t retroactive is foreclosed by this court & s decision in Callender v. Sioux City Residential Treat ment Facility , 88 F.3d 666, 669 n.2 (8th Cir. 1996).
The Court in Sandinrecognized that States may under cert ain circumstances create liberty interests which are protect ed by the Due Process Clause. But these interests will b e generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Pr ocess Clause of its own force, nonetheless imposes atypical an d significa nt hardship on the inmate in relation to the ordinary incidents of prison life.-4--5-

Sandin , 515 U.S. at 483-84 (citations omitted). Here, Driscoll & s allegation that he spent a total of 135 days in disciplinary and admini strative segregation did not alone constitute an “atypical and significan t hardship ” when compared to the “ordinary incidents of prison life.” See id. at 486 ; Freitas v. Ault , 109 F.3d 1335, 1338 (8th Cir. 1997). Accordingly, the judgment of the district court is affirmed. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.