THURSTON B. McAFEE v. J. Rivero; B. Hill

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NOT FOR PUBLICATION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
THURSTON B. McAFEE,
Plaintiff - Appellant,
v.
J. RIVERO; B. HILL,
Defendants - Appellees.
No. 11-17085
D.C. No. 3:09-cv-02497-EMC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted November 13, 2012**
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Thurston B. McAfee, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference to safety and due process violations. We have jurisdiction
FILED
NOV 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

11-17085 2
under 28 U.S.C. § 1291. We review de novo. Gibson v. County of Washoe, Nev.,
290 F.3d 1175, 1180 (9th Cir. 2002). We affirm.
The district court properly granted summary judgment on McAfee’s Eighth
Amendment claim because McAfee failed to raise a genuine dispute of material
fact as to whether defendant Hill acted with deliberate indifference to McAfee’s
safety before the riot erupted in the dining hall, or as to whether Hill acted
“maliciously and sadistically for the very purpose of causing harm” after he
recognized that tensions were building and called for reinforcements. Johnson v.
Lewis, 217 F.3d 726, 733-34 (9th Cir. 2000) (the state-of-mind requirement for an
Eighth Amendment claim “varies with the circumstances of the claim”); see also
Wilson v. Seiter, 501 U.S. 294, 297-98 (1991) (inmate must establish that prison
officials “possessed a sufficiently culpable state of mind” to implicate the Eighth
Amendment).
The district court properly granted summary judgment on McAfee’s claim
that his due process rights were violated in a prison disciplinary hearing because,
even assuming that there was a protected liberty interest at stake, McAfee failed to
raise a genuine dispute of material fact as to whether prison officials afforded him
all of the process that he was due. See Superintendent v. Hill, 472 U.S. 445, 454
(1985) (some evidence must support decision that results in revocation of good

-- 2 of 3 --

11-17085 3
time credits); Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974) (setting forth due
process requirements in prison disciplinary proceedings that implicate a liberty
interest). McAfee’s challenge to Rivero’s decision not to call a witness is
unavailing, where Rivero determined that the witness would be irrelevant. See
Wolff, 418 U.S. at 566 (the right to call witnesses is not unqualified, and prison
authorities have discretion not to call witnesses, “whether it be for irrelevance, lack
of necessity, or the hazards presented in individual cases”).
AFFIRMED.

-- 3 of 3 --