                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 20 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



THURSTON B. McAFEE,                              No. 11-17085

               Plaintiff - Appellant,            D.C. No. 3:09-cv-02497-EMC

  v.
                                                 MEMORANDUM *
J. RIVERO; B. HILL,

               Defendants - Appellees.



                    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




          *
             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).
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                                     11-17085
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.




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