                                 ___________

                                 No. 95-2245
                                 ___________

Lee Moorman, Jr.,                    *
                                     *
           Plaintiff-Appellee,       *
                                     *
     v.                              *
                                     *
John A. Thalacker, sued as John      *
Thalacker; Larry Brimeyer;           *
Thomas Luensman, sued as C/O         *
Luensman; Jerome Manternach,         *
sued as Jerry Manternach,            *
                                     *
           Defendant-Appellants,     *
                                     *
Charles Lee,                         *   Appeal from the United States
                                     *   District Court for the
           Defendant,                *   Northern District of Iowa.
                                     *
Harold Wood,                         *
                                     *
           Defendant-Appellant,      *

                                 ___________

                                 No. 95-2297
                                 ___________

Lee Moorman, Jr.,                   *
                                    *
           Plaintiff-Appellant,     *
                                    *
      v.                            *
                                    *
John A. Thalacker, sued as John     *
Thalacker; Larry Brimeyer;          *
Thomas Luensman, sued as C/O        *
Luensman; Jerome Manternach,        *
sued as Jerry Manternach;           *
Charles Lee; Harold Wood,           *
                                    *
           Defendant-Appellees,     *
                               ___________
                          Submitted:     February 12, 1996

                                Filed:   May 14, 1996
                                         ___________

Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
                               ___________

BEAM, Circuit Judge.

      Lee Moorman was disciplined after he was found to have violated
prison regulations.         The discipline included the loss of sixteen days of
good time.        He filed suit under 42 U.S.C. § 1983 claiming that prison
officials violated his rights to due process.            The district court1 denied
the officials qualified immunity and ruled in favor of Moorman.             Moorman
appeals the determination of damages and the prison officials appeal both
the district court's denial of qualified immunity and its determination of
liability on the merits.          We reverse.


I. BACKGROUND


      In 1984, Moorman was sentenced to twenty-five years in prison for an
armed robbery which he committed using his father's .357 magnum handgun.
In September 1989, a prison guard overheard an interchange between Moorman
and   a       fellow   inmate   about    obtaining   handguns.   Moorman,   who   was
anticipating release in the near future, stated that he intended to obtain
his father's gun again immediately upon his release from prison.            Moorman
also stated that if he could not persuade his father to give him the .357
magnum (which both inmates agreed was the most desirable model), he would
go out and purchase one.


      The guard filed a disciplinary report and Moorman was disciplined
under prison rules 41 and 11.             Rule 11 forbids inmates from engaging in
conduct which is a felony under state or federal




          1
       The case was tried before a magistrate with the parties'
consent.
law.   Rule 41, among other things, forbids inmates from "attempt[ing] to
commit any of the [offenses covered in Rule 11] or [being] in complicity
with others who are committing or attempting to commit any of the [offenses
covered by Rule 11]."         Information Guide, Iowa State Men's Reformatory, pp.
10, 14 (June 1989).        Thus, Moorman was disciplined for an "attempt" to
possess a firearm as a convicted felon.          His discipline consisted of the
loss of 16 days good time, 15 days of the highest level of disciplinary
detention, and 107 days in progressively less restricted disciplinary
detention.2       Moorman was paroled on October 26, 1990, after serving six
years of his sentence.


       Moorman's      state     court   postconviction   action   challenging   the
disciplinary action was declared moot because he was paroled before it came
to trial.3       He filed this section 1983 action in July 1991.      The district
court determined there was no evidence that Moorman had violated Rules 41
and 11.          It therefore ruled that the prison officials had violated
Moorman's due process rights when they disciplined him.            The court found
that Moorman was injured by the disciplinary detention and by the loss of
wages incurred due to his transfer to a higher security institution.             It
awarded $3,602.55 in damages for those injuries.


       Moorman, who was paroled within a year of the incident, also claimed
that but for the discipline he would have been paroled sooner.                  He
requested damages for the delay.         The district court found that there was
no credible evidence that Moorman's parole was




          2
         Moorman was also transferred from a minimum security
institution to a medium security institution as a result of the
disciplinary report.
             3
         Moorman's motion for summary judgment claiming issue
preclusion, which was based on an eventual state court finding in
favor of the other inmate, was correctly denied by the district
court. As the district court pointed out, the two inmates played
different roles, with Moorman being the main player. That ruling
has not been appealed.

                                          -3-
delayed by the discipline, and that, in any case, the exchange for which
Moorman was disciplined would have been proper grounds for such a delay.
Therefore, the court found that Moorman had suffered no injury and refused
to award any damages for the alleged delay.      The district court did not
consider or award any damages for the loss of good time.


     Moorman appeals the court's damages award, claiming that he should
have been compensated not just for the disciplinary segregation but also
for the transfer from a minimum to a medium security institution and for
the alleged delay in parole.       The prison officials appeal the district
court's ruling on the merits and its denial of their claim of qualified
immunity.


II. DISCUSSION


     A. Claims of the Prison Officials


     The question of qualified immunity is an issue of law which we review
de novo.    White v. Holmes, 21 F.3d 277, 279 (8th Cir. 1994).
To consider a prisoner's claim against a prison official, we must first
determine whether he or she has alleged the violation of a federal
statutory or constitutional right, and if so, whether that right is clearly
established.    Id.; Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th
Cir. 1992).    If the conduct complained of violates no constitutional right,
the complaint must be dismissed.    Get Away, 969 F.2d at 666.   In this case,
a recent Supreme Court decision and the state of the record make it
uncertain whether Moorman has alleged the violation of any constitutional
right.      See Sandin v. Conner, 115 S. Ct. 2293 (1995) (disciplinary
segregated confinement of inmate falls within the expected parameters of
prison sentence, and does not present the type of atypical, significant
deprivation in which a state might conceivably create a liberty interest).




                                      -4-
        In Sandin, the Court explained that whether an inmate has a liberty
interest protected by due process depends on the nature of the interest at
stake    and   not     just       on   the    mandatory         or    precatory         nature    of    the
institutional procedures governing that interest.                           Id. at 2299-2300.           The
Court    so    held    to    extricate        the    federal         courts      from    inappropriate
micromanagement of the common incidents of prison life which its former
approach had encouraged.                See id. (citing cases claiming or finding
constitutionally        protected        interests         in    dictionaries,           tray    lunches,
unrestricted furlough travel, big cells with television outlets, food loafs
& boot camp participation).              The former emphasis on the mere nature of the
rules without critical consideration of the underlying interest encouraged
prisoners      to     make    federal        cases   out    of       trivial     disagreements          and
discouraged prisons from codifying their administrative procedures, thus
perversely encouraging arbitrary action by rudderless employees.                                   Id. at
2299.


        Sandin concluded that the inmate had no liberty interest in avoiding
the disciplinary confinement in issue in that case because that confinement
did not present an atypical and significant deprivation in relation to the
ordinary incidents of prison life.                     Id. at 2301.              Therefore, the Due
Process Clause was not implicated despite the mandatory nature of the rules
relating to the imposition of disciplinary confinement.                            The Court stated
that there are some deprivations, and not necessarily those so severe as
to independently trigger due process protection, against which states could
conceivably      create       a   liberty      interest.             Id.    at   2300.          Those   are
deprivations which work such major disruptions in a prisoner's environment
and life that they present dramatic departures from the basic conditions
and ordinary incidents of prison sentences.                                Id. at 2300-01.          While
Conner's segregated and solitary confinement was not such a deprivation,
the Court noted that prisoners nonetheless retain protection from arbitrary
state action even within the expected conditions of confinement through the
First and Eighth Amendments, the Equal Protection Clause,




                                                 -5-
internal prison grievance procedures, and state judicial review.             Id. at
2302 n.11.


        While we are unsure whether Moorman's confinement was a dramatic
departure from the ordinary incidents of prison life, we think not.
Admittedly, his environment was disrupted by the transfer, but there is no
liberty interest in assignment to any particular prison.              See Meachum v.
Fano, 427 U.S. 215, 224 (1976).         Thus, constitutionally speaking, such
assignments are discretionary, so long as they are not done for prohibited
or   invidious   reasons   and   do   not   rise   to   independent   constitutional
violations on their own weight.         See Vitek v. Jones, 445 U.S. 480, 493
(1980); Sisneros v. Nix, 884 F. Supp. 1313, 1346 (S.D. Iowa 1995).               The
disciplinary detention at issue here is within that same category.           Moorman
does not allege any invidious or prohibited reason for his detention, and
the detention appears no more severe than that in Sandin.               It does not
appear to have been a disruption exceeding the ordinary incidents of prison
life.


        Therefore, the only deprivation of which Moorman may complain is that
of his good time credits.    However, as Wolff v. McDonnell makes clear, good
time credits alone are not liberty interests.            418 U.S. 539, 557 (1974).
To be so considered, the state must have created a mandatory scheme which
necessarily affects the duration of a prisoner's sentence.                 See id.;
Sandin, 115 S. Ct. at 2297.      Because the loss of good time credits did not
enter into the district court's decision, it made no determination as to
whether such credits were mandatory in nature or whether their loss injured
Moorman.    While neither party has directed us to any authority on whether
Iowa's good time provisions are mandatory in nature, we note that the Iowa
statutes dealing with good time credits simply direct that "[a]n inmate
shall not be discharged from . . . custody . . . until the inmate has
served the full term . . . less good conduct time earned."            Iowa Code Ann.
§ 903A.5 (West 1994 & Supp. 1996).            Further, the Iowa statutes merely
indicate that inmates are




                                        -6-
eligible to receive good time for good behavior, unlike the mandatory
statute at issue in Wolff.      Compare Iowa Code Ann. § 903A.2 ("[e]ach inmate
. . . is eligible for a reduction of sentence . . . for . . . good conduct)
with Wolff, 418 U.S. at 546 n.6 (reproducing the applicable Nebraska
statute,     which   directs   that   the    warden   "shall"   reduce   sentences   by
specified amounts for good time and that such time "shall" apply to
mandatory parole).     Finally, under Iowa law, good time may be revoked for
bare "violat[ion of] an institutional rule,"              Iowa Code Ann. § 903A.3,
whereas the scheme in question in Wolff specifically barred revocation of
good time credit except in cases of "flagrant or serious misconduct."
Wolff, 418 at 545 n.5.     Thus, given its highly discretionary nature, it is
unclear that Iowa's statutory scheme creates a liberty interest in good
time.4


     However, even assuming that Moorman has alleged the violation of a
constitutional right, we find that the district court should have granted
the officers qualified immunity.




         4
        According to the state, even if Moorman has alleged a
violation of his constitutional rights, other recent Supreme Court
decisions put into question whether he may vindicate the particular
violation alleged through a 42 U.S.C. § 1983 action. See Heck v.
Humphrey, 114 S. Ct. 2364, 2370 (1994) (a prisoner's action
challenging the validity or length of confinement must be brought
in habeas, but a challenge to procedures underlying confinement may
be brought under section 1983 if use of the wrong procedure does
not vitiate the confinement itself). A habeas petitioner must have
exhausted state remedies before bringing a federal habeas petition,
while a section 1983 plaintiff may proceed directly to federal
court. Moorman points out that he did exhaust his state remedies,
by bringing his state habeas action which was declared moot. Thus,
he argues, finding the label of this action determinative would be
elevating form over substance.        We are inclined to agree,
especially since Heck specifically distinguishes Wolff as a proper
section 1983 action wherein the petitioner sought damages for the
use of the wrong procedure, not restoration of the credits or a
remedy which necessarily vitiated their denial. Heck, 114 S. Ct.
at 2370. That is what we understand Moorman to be seeking.

                                            -7-
     The district court based its ruling on its determination that the
"some evidence" rule had been violated, i.e., that there was no evidence
that Moorman violated the rule in question.       See Superintendent, Mass.
Correctional Inst. v. Hill, 472 U.S. 445, 447 & 455 (1985) (due process
requires that "some evidence" support decisions of prison disciplinary
boards affecting liberty interests); Goff v. Dailey, 991 F.2d 1437, 1440-42
(8th Cir.) (prison officials' use of "some evidence" burden of proof for
disciplinary decisions satisfies due process), cert. denied, 114 S. Ct. 564
(1993).   In order to do so, the district court evaluated the considerable
evidence of the event in question, and, after legal analysis, decided that
that conduct could not constitute an "attempt."      We think the district
court applied the wrong standard and the wrong analysis.


     The proper analysis was not whether there was "some evidence" of a
rules violation, which goes to whether there is a sufficient quantum of
evidence for the disciplinary committee to find that the prisoner actually
committed the conduct of which he accused.   See Superintendent v. Hill, 472
U.S. at 455-56 ("some evidence" is evidentiary standard to be applied to
factual findings); Goff, 991 F.2d at 1140-42 (prison officials' factual
findings based on "some evidence" burden of proof satisfy due process).
Rather, the question presented is whether the committee was justified in
finding that the conduct in question, which was amply supported by the
evidence, constituted a violation of the rules.    To decide this issue, we
look to the officials' interpretation and application of the prison rules.



     Where there is no clearly established judicial interpretation to the
contrary, we defer to prison officials' interpretation and application of
their rules to the facts so long as that interpretation and application is
not objectively unreasonable.   See Henderson v. Baird, 29 F.3d 464, 468
(8th Cir. 1994) (interpretation of "assault" to include throwing orange
juice on a




                                   -8-
guard not objectively unreasonable), cert. denied, 115 S. Ct. 2584 (1995).
In this case, as the district court recognized, whether or not the exchange
in question ought to be characterized as an "attempt" depends on whether
it amounted to a "plan."5    See Freitas v. Auger, 837 F.2d 806, 807, 809,
811 (8th Cir. 1988) (prison may not punish an inmate for attempted escape
for simply talking about escape, but may punish an inmate for planning or
complicity in planning one).       The district court, after some analysis,
decided that the conduct in this case did not amount to a "plan" because
there was no overt act.    Whether it is the district court's or the prison
officials'   determination   (as   to   what   constitutes    a   "plan")   that   is
ultimately found to be correct, the question is certainly arguable and open
to debate.   Freitas does not set out clearly established guidelines as to
which verbal exchanges amount to "plans" and which amount to mere talk, nor
does it indicate verbal exchanges alone may never be "plans."          Thus, there
was no established judicial interpretation of "plan" which was patently
contrary to the officials' application in this case.         See Cornell v. Woods,
69 F.3d 1383, 1390 (8th Cir. 1995) (qualified immunity protects officials'
discretionary acts unless pre-existing law renders unlawfulness of act
apparent).


     The law of "attempt" is complex and fraught with intricacies and
doctrinal divergences.    Qualified immunity protects prison officials from
liability for their objectively reasonable efforts to divine whether a
course of conduct amounts to an "attempt," even should their answer be
arguably wrong.   See Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified
immunity protects mistakes, mistaken judgments and "all but the plainly
incompetent or those who knowingly violate the law"); Bartlett v. Fisher,
972 F.2d 911, 914 (8th Cir. 1992) (qualified immunity protects reasonable




     5
      The prison regulations define attempt as "when, with intent
to commit an offense, the inmate engages in conduct which tends to
effect the commission of such offense." Information Guide at 8.

                                        -9-
errors); Gorra v. Hanson, 880 F.2d 95, 97-98 (8th Cir. 1989) (qualified
immunity protects officials' reasonable interpretations of law);   McCurry
v. Tesch, 824 F.2d 638, 642 (8th Cir. 1987) (officials need not correctly
anticipate appellate interpretation of legal maxims about which even the
courts disagree in order to avoid paying damages out of their own pockets).
The officials, presented with a prisoner nearing his release date detailing
his intentions to obtain the precise weapon which he had previously used
to ill-effect, delineating exactly how that weapon was to be acquired, and
specifying his backup method for procuring an identical weapon should the
first fail, could reasonably interpret such conduct as a "plan."   This is
the classic situation for which qualified immunity is designed; prison
officials interpreting and applying their disciplinary regulations in a not
objectively unreasonable fashion in order to maintain discipline and order
in the institution.   See generally Sandin, 115 S. Ct. at 2299-301; Bell v.
Wolfish, 441 U.S. 520, 544 (1979).


     B. Claims of Moorman


     Since the district court erred in denying the prison officials' claim
of qualified immunity, we do not address Moorman's complaints as to the
inadequacy of his damages award.     Moorman's motion to strike the state's
Heck argument (supra n.4) is denied.
III. CONCLUSION


     Because the prison officials should have been granted qualified
immunity, we reverse the judgment of the district court and remand with
directions that judgment be entered in the officials' favor.




                                   -10-
A true copy.


     Attest:


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




                            -11-
