                                    ___________

                                    No. 95-3289
                                    ___________

George Goff,                             *
                                         *
           Appellee,                     *
                                         *    Appeal from the United States
     v.                                  *    District Court for the
                                         *    Southern District of Iowa.
James R. Burton, John Henry,             *
Crispus Nix,                             *
                                         *
           Appellants.                   *
                                    ___________

                    Submitted:      April 10, 1996

                          Filed:    August 8, 1996
                                    ___________

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


     Defendant prison officials (the defendants) appeal the district
court's1 judgment in favor of George Goff in his 42 U.S.C. § 1983
retaliatory discipline and transfer action.          We affirm.


                                   I.   Background


     In the fall of 1989, Goff was incarcerated at the John Bennett
Correctional Center (the correctional center), a medium security facility
outside the walls of the Iowa State Penitentiary (the penitentiary) at Fort
Madison, Iowa.   On November 29, 1989, Goff informed Unit Manager Marty Rung
that he and other inmates intended to file suit against the correctional
center to contest overcrowded conditions.            According to Goff, prison
officials forbade him from




     1
     The Honorable Donald E. O'Brien, United States District Judge
for the Southern District of Iowa.
preparing for the suit and ordered him not to discuss or research the case
with anyone.   Despite this advice, Goff and several other inmates continued
their preparation and filed suit on January 16, 1990.


        On January 15, 1990, Kevin Smith, an inmate at the correctional
center, was transferred to the medical unit at the penitentiary for
treatment of an injury that he reported had occurred from falling off the
"dock" outside the kitchen area at the correctional center.      Lieutenant
Donald Vail, the prison official on duty at the time, reported the injury
and escorted Smith to the medical unit.    Captain James Burton, head of the
investigations unit at the penitentiary, filed a report identifying the
injury as minor.


        At some point after Smith's reported injury, prison officials began
to investigate the possibility that Smith's injury was not caused by a
fall.    According to Lieutenant Vail, this change in positions occurred
after a confidential informant approached him on the evening of the
accident and claimed that he had heard from a third inmate that the inmate
had witnessed Goff hit Smith.   No prison official ever met with this third
inmate, however, who was the only alleged witness to the encounter.


        On January 17, Captain Burton questioned Smith regarding the cause
of his injury.      Smith, responding affirmatively to Burton's leading
questions, identified an inmate named "George" as the source of his
injuries.    Following this interview, an unidentified officer, deviating
from standard prison policy, showed Smith one picture, that of Goff, and
Smith allegedly identified Goff as his attacker.


        On January 19 prison officials were served with notice of Goff's
civil lawsuit against the correctional center.   Goff had been scheduled for
transfer from the correctional center to a




                                     -2-
minimum security "farm" on January 24, 1990, and then for eventual work
release.   This scheduled transfer never occurred.           Instead, on January 23,
1990, Goff was brought to Burton's office for an interview.               According to
prison officials, Goff was transferred to the penitentiary because he
refused to speak to Burton.         Goff testified at trial that he refused to
talk to Burton only because he was not informed of the nature of the
interview.


     Formal charges were filed against Goff on February 7, 1990, for the
alleged assault on Smith.        He was found guilty as charged and received 15
days' isolation, a year in lockup, and loss of one year's good-time credit.
Goff then filed this suit against Burton, Warden Crispus Nix, and Deputy
Warden John Henry, alleging that he was innocent of the assault and that
he was transferred and disciplined in retaliation for his legal activities
against the prison.


     At trial Goff presented evidence both of his innocence of the charged
assault and concerning the suspicious timing and irregular procedures
followed in the investigation against him.              Direct evidence of Goff's
innocence was offered through the testimony of fellow inmates Dudie Rose
and Kevin Blaykey.    Both inmates testified that they were with Goff in the
cafeteria at the time of the alleged assault and that they did not witness
any contact between Goff and Smith, much less an assault.


     Smith did not testify at trial.               At his January 17 interview,
however,   he    stated   that   both   Blaykey   and   an   inmate    fitting   Rose's
description were with Goff at the time of the assault.                Prison officials
never attempted to ascertain the identity of or to interview Rose.               Blaykey
testified that he was brought back into the penitentiary for questioning
on February 5.    At that interview Burton informed him that prison officials
knew that Goff had assaulted Smith.            Blaykey testified that Burton then
promised him that if Blaykey told them what he knew he would be sent back
to the




                                         -3-
correctional center.    Blaykey testified that because he knew nothing of an
assault he could provide the prison officials with no information.                 Despite
his   failure   to   cooperate,   Blaykey     was   classified      to   return    to   the
correctional center approximately thirty days after he was brought in.                   He
chose not to go, however, stating that he "didn't want to go out there and
keep coming back in here for stupid stuff."


      Goff presented testimony concerning several apparent procedural
irregularities in the investigation that led to his ultimate discipline.
First, although Smith's injuries occurred on January 15 and he allegedly
implicated Goff two days later, Goff was not questioned concerning the
Smith incident until January 23.              This delay was contrary to prison
policies   requiring    swift   action   in    response   to   an    alleged      assault.
Moreover, at the time of his transfer Goff was not informed that he was a
suspect in the alleged assault, and the prison transfer memo did not
mention the assault.    Following his transfer, Goff spent several weeks in
the penitentiary before he was actually charged with the assault.


      Finally, Goff presented some direct evidence of prison retaliation
in the form of inmate Russell Buckley's testimony.             Buckley testified to
a conversation with Correctional Officer Hawk, during which Officer Hawk
informed him that the reason for Goff's transfer to the penitentiary was
Goff's legal work against the prison.


      The district court found in Goff's favor, ordered his transfer back
to the correctional center, and awarded him $2,250 in damages and credit
against future discipline for 225 days served in lockup.                   On appeal we
reversed, finding that the district court had failed to apply the "but for"
standard in determining whether Goff's transfer was retaliatory and had
failed to apply the "some evidence" standard in determining whether the
disciplinary action taken against Goff was retaliatory.                  Goff v. Burton,
7 F.3d 734




                                         -4-
(8th Cir. 1993), cert. denied, 114 S. Ct. 2684 (1994).                On remand, the
district court applied these standards to its previous findings of fact and
again found in Goff's favor.


                            II.     Retaliatory Transfer


     "Although a prisoner enjoys no constitutional right to remain at a
particular   institution,     and    although    generally   prison   officials   may
transfer a prisoner for whatever reason or no reason at all, a prisoner
cannot be transferred in retaliation for the exercise of a constitutional
right."   Goff, 7 F.3d at 737 (internal quotations and citations omitted).
To prevail on his section 1983 retaliatory transfer claim, Goff must prove
that a desire to retaliate was the actual motivating factor behind the
transfer.    Id.     In other words, Goff must prove that but for his legal
actions against the prison, he would not have been transferred to the
penitentiary.      Id.


     On remand the district court found "overwhelming" evidence that but
for the defendants' improper motive, Goff would not have been transferred.
We review this factual finding for clear error.         Cornell v. Woods, 69 F.3d
1383, 1388 (8th Cir. 1995).


     The district court noted that the chronology of events surrounding
Goff's transfer gave rise to an inference of retaliation.             That inference
was then strengthened by evidence that the defendants deviated from their
normal procedure of immediately transferring a prisoner suspected of
assault, and the transfer memo did not mention the assault.           Indeed, Burton
admitted that he had all of the information tending to show Goff's guilt
on January 17; yet he did not contact his superiors to determine whether
to file charges until February 7.               Burton also admitted that Goff's
detention in the penitentiary for several weeks without an investigation
was atypical.      Coupled with this is Russell Buckley's testimony that when
he asked Officer Hawk why Goff had been




                                         -5-
transferred, Hawk responded that Goff was transferred because of his legal
work.


        Whether we would characterize this evidence as "overwhelming" is not
the point.    The question is whether the district court's finding that the
defendants retaliated against Goff by transferring him to the penitentiary
is clearly erroneous, and we conclude that it is not.


                         III.   Retaliatory Discipline


        The prohibition against transferring an inmate in retaliation for his
initiating legal action against the prison is equally applicable to prison
officials' decision to discipline an inmate in retaliation for his legal
activities.    The standard, however, is different.      To avoid liability on
Goff's retaliatory discipline claim, the defendants must simply prove that
there was "some evidence" supporting their decision to discipline Goff, for
if the contested discipline was imposed for an actual violation of prison
rules, the retaliatory discipline claim must fail.        Cornell, 69 F.3d at
1389.    On remand the district court concluded that by failing to offer any
credible evidence that Goff committed the alleged assault, the defendants
failed to satisfy the "some evidence" standard.


        The district court noted that the confidential informant's statement
lacked sufficient indicia of reliability, as the informant communicated
only what somebody else had said that he saw.    The court further noted that
the suspect nature of this evidence was heightened by the defendants'
failure to properly investigate the confidential informant's source of
knowledge.     We perceive no error in the district court's ruling, for we
have repeatedly held that the district court must make a determination of
the reliability of a confidential informant to determine whether some
evidence exists to support a disciplinary committee's




                                      -6-
decision.   See Earnest v. Courtney, 64 F.3d 365, 367 (8th Cir. 1995);
Turner v. Caspari, 38 F.3d 388, 393 (8th Cir. 1994); Freitas v. Auger, 837
F.2d 806, 810 (8th Cir. 1988).         "A bald assertion by an unidentified
person, without more, cannot constitute some evidence of guilt."          Freitas,
837 F.2d at 810.


      The only other evidence offered was the transcript of the defendants'
interview with Smith.       In finding this evidence to be unreliable, the
district court pointed to the inconsistent nature of Smith's statements,
Smith's failure to testify under oath at any time, Smith's failure to
testify at the hearing, and the fact that the statements were procured
through leading questions and with the promised reward of transfer to a
more desirable facility.2    Again, we see no error in the district court's
ruling, for if "some evidence" is to be distinguished from "no evidence,"
it must possess at least some minimal probative value if it is to be found
adequate to satisfy the requirement of the Due Process Clause that the
decisions of prison administrators must have some basis in fact.                  See
Superintendent v. Hill, 472 U.S. 445, 456 (1985).      As indicated above, the
district court did not err in finding that the confidential informant's
statement did not meet this minimal threshold of reliability.             Likewise,
Smith's statements, although not cloaked in the garb of anonymity, were,
as the district court found, rendered so suspect by the manner and
circumstances in which given as to fall short of constituting a basis in
fact for the defendants' decision to impose discipline upon Goff.


      We acknowledge that this latter finding by the district court is
subject to the defendants' argument that the district court did not heed
the   Supreme   Court's   admonition   in    Superintendent   v.   Hill    that    in
ascertaining whether the "some evidence" standard has been




      2
     Smith was subsequently transferred to another medium security
facility. The parties contest, however, and the record does not
disclose, whether this facility was more favorable than the
correctional center.

                                       -7-
satisfied, courts are not to make an independent assessment of the
credibility of witnesses or weigh the evidence.   Id. at 455.    We conclude,
however, that the "some evidence" standard does not so cabin the scope of
judicial review as to require that credence be given to that evidence which
common sense and experience suggest is incredible.           Accordingly, we
conclude that the district court did not err in subjecting Smith's
statements to this minimal level of review and in finding that the
defendants' decision to discipline Goff lacked a basis in fact and was thus
retaliatory.


                       IV.    Failure to State a Claim


     The defendants next contend that Goff's action for damages is barred
by the holding in Heck v. Humphrey, 114 S. Ct. 2364 (1994).     The defendants
failed to raise this contention below, however, even though Heck          was
decided eleven months before the final proceedings in the district court.3
Accordingly, we will not consider it on appeal.          See Fed. R. Civ. P.
12(h)(2).


                                  V.   Damages


     Finally, the defendants contend that Goff did not establish a claim
for damages, and that in any event he is not entitled to the amount
awarded.    The district court awarded Goff $2,250 in damages for 225 days
spent in segregation as a result of his transfer from the correctional
center to the penitentiary.    In making this award, the district court took
judicial notice of numerous prison policies concerning the additional
restrictions imposed on Goff during his time spent at the penitentiary.
We conclude that the district court did not abuse its discretion in valuing
Goff's lost privileges at ten dollars per day.      See Stevens v. McHan, 3
F.3d 1204 (8th Cir. 1993) (identifying standard of review and citing




     3
      Heck was decided on June 24, 1994. The last hearing before
the district court occurred on May 31, 1995.

                                       -8-
cases suggesting an appropriate damage range for lockup time is between $25
and $129 per day).


     The judgment is affirmed.


     A true copy.


           Attest:


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




                                   -9-
