                                    ___________

                                    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George E. White; Don Roper;              *           [UNPUBLISHED]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 2, 1996

                           Filed:   January 21, 1997
                                    ___________

Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
                               ___________


PER CURIAM.


     Robert Driscoll appeals from the final judgment of the District Court
for the Eastern District of Missouri granting summary judgment to prison
officials in this 42 U.S.C. § 1983 action.           For the reasons discussed
below, we reverse and remand for further proceedings.


     Driscoll, an inmate at the Potosi Correctional Center (PCC), filed
a complaint alleging, inter alia, that on September 14, 1992, defendant
Larry Youngman issued him a false conduct violation (CV)
charging him with violating Rule #5--Riot--by "being present" at an August
16 incident and "supporting those inmates who were fighting."             Driscoll
appeared at a September 22 disciplinary hearing, at which defendants Fred
Johnson and George White found him guilty and sentenced him to thirty days
in disciplinary segregation, referred the matter for criminal prosecution,
and recommended referral to administrative segregation. Defendant Don Roper
approved the action.    Driscoll alleged that the CV did not state any facts
supporting the violation and that he was never advised what evidence
defendants   relied    on   to   support    the   guilt   finding.   Driscoll   also
challenged the conditions 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 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 moved 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 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 the only
evidence relied on by defendants that implicated him in the August 16 riot
was the CV issued by Youngman, which stated that an "investigation"
revealed Driscoll was involved by "being present and supporting those
inmates who were fighting."      There was no evidence, however, that Driscoll
was engaged in rioting as that




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offense was defined.1    Thus, there was not "some evidence" to support the
guilt determination.    The district court further concluded defendants were
not entitled to qualified immunity and postponed determining Driscoll's
damages for having spent over 100 days in 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, 115 S. Ct. 2293 (1995) (Sandin), Driscoll had no liberty
interest in remaining free from segregation because he did not show it
resulted in an atypical or significant deprivation falling outside the
expected parameters of the sentence imposed.     Without conducting further
proceedings, the district court concluded that Driscoll was not entitled
to due process protection in light of Sandin and granted defendants summary
judgment.


     On appeal, Driscoll argues Sandin should not be applied retroactively
and is distinguishable because Driscoll was punished for no reason and
Sandin was not; alternatively, this court should remand for the district
court to make a particularized determination regarding PCC's conditions of
confinement.


     Driscoll's argument that Sandin is not retroactive is foreclosed by
this court's decision in Callender v. Sioux City Residential Treatment
Facility, 88 F.3d 666, 669 (8th Cir. 1996).


     The Supreme Court in Sandin concluded that Sandin's confine-ment in
disciplinary segregation did not impose an       "atypical and significant
hardship."   The Court supported its conclusion by




     1
     Institutional Rule #5 defines Riot as "[k]nowingly assembling
with six or more inmates and agreeing or participating with such
inmates to violate any institutional, divisional, departmental,
state or federal rule or law with force or violence."

                                     -3-
discussing the various custodial conditions at the particular prison in
question and by demonstrating that Sandin's segregation "did not work a
major disruption in his environment."        115 S. Ct. at 2301.


     In contrast to the detailed record in Sandin, the record here did not
contain and the district court did not cite any factual support for
concluding that Driscoll's segregation did not impose on him an "atypical
and significant hardship" in relation to the "ordinary incidents of prison
life."     Id.   at    2300.   We   hold   that   Sandin   requires   this   factual
determination.   See Samuels v. Mockry, 77 F.3d 34, 38 (2d Cir. 1996) (per
curiam); Gotcher v. Wood, 66 F.3d 1097, 1101 (9th Cir. 1995), petition
for cert. filed, 64 U.S.L.W. 3605 (U.S. Feb. 26, 1996) (No. 95-
1385); Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995) (per
curiam).    Thus, we remand for such a factual determination.                   See
Samuels, 77 F.3d at 38 (factual determination should not be made by
appeals court in first instance).


     Accordingly, the judgment of the district court is reversed
and the case remanded for further proceedings.


     A true copy.

            Attest:

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




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