                                                                           FILED
                                                                            AUG 26 2010
                             NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                     UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT



RANDY SCOTT BAILEY,                              No. 09-15261

               Plaintiff - Appellant,            D.C. No. 2:04-CV-01175-MHM-
                                                 MEA
  v.

MAXWELL, CO IV-Administrator                     MEMORANDUM *
Offender Services at Phoenix Central
Office, sued in individual and official
capacity; et al,

               Defendants - Appellees.



                    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

          *
             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).
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.




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