                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                      February 11, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk
                              No. 03-10701
                            Summary Calendar



                               ROY PERRY,

                                                   Petitioner-Appellee,

                                   versus

  DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
               CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                       USDC No. 2:00-CV-274
                       --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     The respondent appeals the district court’s grant of Roy

Perry’s   28   U.S.C.   §   2254    petition   challenging     his    prison

disciplinary proceeding.     The district court found that there was

insufficient evidence to support a finding of guilt with respect to

the disciplinary charges that Perry participated in a riot and that

he damaged prison property during the riot.            Perry lost good

conduct time in connection with his disciplinary case, and he is

eligible for mandatory release.        See Malchi v. Thaler, 211 F.3d

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
953, 956 (5th Cir. 2000).

     “[F]ederal       courts    cannot      retry     every    prison       disciplinary

dispute;     rather    the     court    may     act   only     where      arbitrary      or

capricious action is shown.” Reeves v. Pettcox, 19 F.3d 1060, 1062

(5th Cir. 1994).        Consequently, due process requires only that

there   be    “some   evidence”        in   the   record      to    support    a   prison

disciplinary     decision,      and     prison      disciplinary         decisions      are

overturned only where no evidence in the record supports the

decision.      Broussard v. Johnson, 253 F.3d 874, 876-77 (5th Cir.

2001); see also Superintendent, Massachusetts Corr. Inst., Walpole

v. Hill, 472 U.S. 445, 455 (1985).                Neither the Supreme Court nor

this court has stated that eyewitness testimony is required to

satisfy due process concerns in the context of a disciplinary

charge.      Hill, 472 U.S. at 455; Hudson v. Johnson, 242 F.3d 534,

536-37 (5th Cir. 2001).

     The     record   does     not   clearly       identify        the   source    of   the

charging officer’s statement or Sergeant Sargent’s statement that

Perry was a participant in the riot.                    It is possible, as the

district court concluded, that the sole source for the charges

against Perry was medical personnel’s identification of Perry as an

inmate who received treatment for injuries suffered during the

riot.     The specificity of the charging officer’s charge, noting

that Perry and two other named inmates were aggressors in the riot

and that      Perry   damaged    property         during   the      riot,    makes      this

scenario questionable, however.               The record also does not indicate

                                            2
that the charging officer actually witnessed the alleged incidents.

Still, it is only supposition that this information was based upon

information from someone else, and there is no indication that the

information was obtained from a confidential informant, which was

the basis of information for the disciplinary charge in Broussard.

     Thus, although it is unclear whether the record contains

direct evidence identifying Perry as a riot participant, “the

record is not so devoid of evidence that the findings of the

disciplinary board were without support or otherwise arbitrary.”

See Hill, 472 U.S. at 457.        As there was “some evidence” in the

record   that   could   support   the       disciplinary   hearing   officer’s

findings, the district court’s judgment is REVERSED and this case

is REMANDED for entry of judgment in favor of the respondent.

     REVERSED AND REMANDED FOR ENTRY OF JUDGMENT IN FAVOR OF

RESPONDENT.




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