                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 00-1178
                                ________________

Pedro Gonzales-Perez,                     *
                                          *
             Appellant,                   *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      Southern District of Iowa.
Charles Harper,                           *
                                          *
             Appellee.                    *

                                ________________

                                Submitted: December 11, 2000
                                    Filed: February 21, 2001
                                ________________

Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD and HANSEN, Circuit
Judges.
                         ________________

HANSEN, Circuit Judge.

       Pedro Gonzales-Perez appeals from the district court's1 dismissal of his civil
rights claims against the Iowa State Penitentiary hearing officer who conducted
disciplinary hearings without affording Gonzales-Perez an interpreter. We affirm.




      1
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
                                           I.

       Gonzales-Perez is a Spanish-speaking Cuban native who came to the United
States in the early 1980s at the age of 34. He was first incarcerated in the Iowa State
Penitentiary (ISP) system in October 1993, where he remains. During his stay in the
ISP system, Gonzales-Perez has faced numerous disciplinary hearings,2 most of which
resulted in the revocation of good time credits. Defendant Charles Harper was the
Administrative Law Judge presiding over disciplinary hearings in the ISP system during
the relevant time periods.3 Gonzales-Perez received the assistance of an interpreter at
a number of his disciplinary hearings, particularly during his early incarceration. At
other hearings, he neither requested nor received the assistance of an interpreter. He
knew how to request an interpreter, as evidenced by a request during his third
disciplinary hearing in April 1994. It is undisputed that Gonzales-Perez received an
interpreter at all hearings for which he requested one.4 ISP has provided a Spanish
interpreter at all of Gonzales-Perez's disciplinary hearings since April 1997.

        Gonzales-Perez has filed grievances within the ISP disciplinary process related
to various disciplinary hearings but has never filed a grievance based on the lack of a
Spanish interpreter. Further, Gonzales-Perez has never pursued state post conviction
relief related to any of the disciplinary hearings. See Iowa Code § 822.2(6) (permitting
a challenge to revocation of good time credits in the Iowa courts).




      2
     Gonzales-Perez received 81 disciplinary reports between October 1993 and
December 1997.
      3
      The suit was originally brought against Gerardo Acevedo, ISP's former warden,
and against Harper. Early in the case the district court dismissed the suit against
Acevedo as frivolous, leaving Harper as the sole defendant.
      4
          Gonzales-Perez's attorney conceded this point during oral argument.
                                           2
        Gonzales-Perez filed this 42 U.S.C. § 1983 (1994) claim in 1996, claiming that
the failure to provide a Spanish interpreter at all of his disciplinary hearings violated his
constitutional rights to due process and equal protection. Gonzales-Perez also sought
injunctive relief, requesting an order requiring the ISP to provide a Spanish interpreter
at all future hearings. The case was referred to a magistrate judge5 pursuant to 28
U.S.C. § 636(b)(1)(B), who held an evidentiary hearing on April 23, 1998. The
magistrate judge thereafter filed a detailed and comprehensive report and
recommendation with the district court, recommending that the case be dismissed. The
magistrate judge found that Gonzales-Perez was proficient enough in English to
understand the nature of the disciplinary proceedings against him, was able to respond
to them, and that a Spanish interpreter was reasonably available when he so requested.
(Add. at 42-43.) Gonzales-Perez timely filed objections to the report and
recommendation.

        The district court agreed with the magistrate judge's recommendation that the
case should be dismissed. The district court found that Gonzales-Perez's § 1983 claims
based on the Due Process Clause were Heck-barred because they necessarily
implicated the invalidity of his disciplinary sentences, and he had not met the
prerequisite of establishing that those sentences had been invalidated. See Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). The district court further found that
Gonzales-Perez's equal protection claims failed on the merits. The district court denied
the requested injunctive relief as inappropriate both under Heck and on the merits.
Gonzales-Perez appeals, arguing that his claims are not Heck-barred because the
disciplinary hearing process itself, rather than the results, violated his constitutional
rights.




       5
        The Honorable Richard W. Peterson, then a United States Magistrate Judge
for the Southern District of Iowa, now retired.
                                             3
                                            II.

       The parties dispute whether the district court appropriately reviewed the record
following Gonzales-Perez's objections to the magistrate judge's report and
recommendation. When a party timely objects to a magistrate judge's report and
recommendation, the district court is required to make a de novo review of the record
related to the objections, which requires more than merely reviewing the report and
recommendation. See 28 U.S.C. § 636(b)(1); see also Jones v. Pillow, 47 F.3d 251,
253 (8th Cir. 1995) (remanding to the district court to perform a de novo review of the
record where the district court stated only that it had reviewed the magistrate judge's
findings and recommendations and the objections thereto but the hearing transcript was
not yet available at the time of the district court's review). This court presumes that the
district court properly performs its review and will "'affirm the district court's approval
of the magistrate's recommendation,'" absent evidence to the contrary. Jones, 47 F.3d
at 253 (quoting United States v. Hammell, 931 F.2d 466, 468 (8th Cir. 1991)). The
burden is on the challenger to make a prima facie case that de novo review was not
had. Id. (requiring "affirmative evidence" that de novo review was not performed).

       The district court stated that "[u]pon de novo review of the record of plaintiff's
case, the court agrees it must be dismissed." (Add. at 3.) The only evidence Gonzales-
Perez raises to establish that the district court did not perform a de novo review is its
statement at the end of its order that "[b]ecause the court resolves plaintiff's claims on
these bases, the court does not address the parties' other arguments." (Id. at 13.)
However, there is a big difference between addressing arguments and reviewing the
record. Further, the district court dismissed the equal protection claims on the merits,
indicating that the court did in fact review the entire record de novo. (Id. ("Plaintiff's
claimed equal protection violation also is without merit. There is no 'English only'
policy, and defendants did not discriminate against plaintiff.").) Gonzales-Perez
therefore fails to make a prima facie case that the district court did not properly review

                                            4
the record. See Jones, 47 F.3d at 253 (holding that even where there is no evidence of
whether a de novo review was conducted, it may be presumed); In re Griego, 64 F.3d
580, 584 (10th Cir. 1995) (holding the district court's statement that it performed de
novo review sufficient and even common among district courts). We now turn to
Gonzales-Perez's substantive claims.

                                           III.

       To successfully bring a § 1983 claim, Gonzales-Perez must establish the
"deprivation of a constitutional right by an individual acting under 'color of state law.'"
Woodis v. Westark Cmty. Coll., 160 F.3d 435, 437 (8th Cir. 1998) (quoting West v.
Akins, 487 U.S. 42, 48 (1988)). Gonzales-Perez claims that his constitutional right to
due process was violated when he was not provided the services of an interpreter at
each of his prison disciplinary hearings. Gonzales-Perez must establish that his
constitutional rights attached to the disciplinary hearings and that such rights were
violated. A state prison disciplinary hearing that results in the deprivation of good time
credits may implicate an inmate's liberty interest, protected by the Due Process Clause,
depending on the nature of the state-created interest in good time credits. See, e.g.,
Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (holding that Nebraska's system of
depriving inmates of good time credits as a sanction implicates due process concerns);
Moorman v. Thalacker, 83 F.3d 970, 973 (8th Cir. 1996) (indicating doubt about
whether Iowa's statutory scheme created a liberty interest in good time credits but
holding that the defendants were protected by qualified immunity, assuming there was
due process protection). The Supreme Court of Iowa has recently expressed its
disagreement with our assessment of Iowa's statutory scheme governing good time
credits. See Sanford v. Manternach, 601 N.W.2d 360, 366-68 (Iowa 1999) (holding
that an Iowa prisoner has a liberty interest in good time credits protected by the Due
Process Clause).




                                            5
        We need not revisit Moorman today because we hold that even if Gonzales-
Perez had a liberty interest in good time credits earned within the ISP system, the
defendant did not violate his right to due process in revoking them. "Prison disciplinary
proceedings are not part of a criminal prosecution, and the full panoply of rights due
a defendant in such proceedings does not apply." Wolff, 418 U.S. at 556. Even in a
full-fledged criminal trial, a defendant's procedural due process rights are not violated
by the failure of the state to appoint an interpreter if the defendant does not request an
interpreter and the state is not otherwise put on notice of a significant language barrier.
Luna v. Black, 772 F.2d 448, 451 (8th Cir. 1985) (holding that the district court did not
abuse its discretion by not appointing an interpreter where the record indicated that the
defendant could communicate in English and the defendant had not requested an
interpreter). Gonzales-Perez concedes that he received the assistance of an interpreter
every time he requested it. Defendant Harper presided over numerous hearings with
Gonzales-Perez, both with and without the assistance of interpreters, and testified that
he believed that Gonzales-Perez's English skills were sufficient to understand and
respond to the disciplinary proceedings. Based on the facts of this case, Gonzales-
Perez has failed to establish that any due process to which he was entitled at his prison
disciplinary hearings was violated. Because we have found no due process violation,
we need not reach the Heck issue upon which the district court relied to dismiss
Gonzales-Perez's § 1983 claim.6

       The district court dismissed Gonzales-Perez's equal protection claims on the
merits. It is not altogether clear whether Gonzales-Perez appeals the equal protection
issue. In any event, he has offered no evidence to establish that the district court's
ruling on the merits was clearly erroneous. Weir v. Nix, 114 F.3d 817, 820 (8th Cir.
1997) (district court's factual findings are affirmed absent clear error). We therefore
affirm the district court's dismissal of Gonzales-Perez's claims to the extent they rely


      6
       We may affirm the district court on any basis supported by the record. Cooksey
v. Delo, 94 F.3d 1214, 1218 (8th Cir. 1996), cert. denied, 522 U.S. 1027 (1997).
                                            6
on equal protection grounds. Without any constitutional violation, there is no basis to
award Gonzales-Perez either the § 1983 damages or the injunctive relief he seeks.

                                         IV.

      We affirm the judgment of the district court.

      A true copy.

             Attest:

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




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