Randy Scott Bailey v. MAXWELL, CO IV-Administrator Offender Services at Phoenix Central Office, sued in…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDY SCOTT BAILEY,
Plaintiff - Appellant,
v.
MAXWELL, CO IV-Administrator
Offender Services at Phoenix Central
Office, sued in individual and official
capacity; et al,
Defendants - Appellees.
No. 09-15261
D.C. No. 2:04-CV-01175-MHM-
MEA
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted August 10, 2010 **
Before: HAWKINS, McKEOWN, and IKUTA, Circuit Judges.
Randy Bailey, an Arizona state prisoner, appeals pro se from the district
court’s summary judgment for Defendants in his 42 U.S.C. § 1983 action. We
FILED
AUG 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

2
have jurisdiction under 28 U.S.C § 1291. We review de novo summary judgment.
Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). We affirm.
The district court properly concluded that Defendants are entitled qualified
immunity because Bailey’s right to due process before assignment to the Security
Maximum Unit was not clearly established at the time he was in the Unit. See
Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (holding that assignment to a
supermax facility can invoke a liberty interest and noting, in 2005, that “Courts of
Appeals have not reached consistent conclusions for identifying the baseline from
which to measure what is atypical and significant in any particular prison system”);
Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that without atypical and
significant hardship, due process is not violated).
AFFIRMED.

-- 2 of 2 --