Charles Winston v. Theaster Petty, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Raymond W. Gruender, Pasco M. Bowman and Bobby E. Shepherd (UNPUBLISHED); Denying [4126825-2] motion for appointment of counsel filed by Appellant Mr. Charles A. Winston. [4167509] [13-3382]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3382
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Charles A. Winston
lllllllllllllllllllll Plaintiff - Appellant
v.
Theaster Petty, Kitchen Supervisor, East Arkansas Regional Unit, ADC; Lahan
Ester, Disciplinary Hearing Officer, East Arkansas Regional Unit, ADC; Greg
Harmon, Warden, East Arkansas Regional Unit, ADC; James Gibon, Disciplinary
Hearing Administrator, ADC; Larry D. May, Chief Deputy Director, ADC; Ray
Hobbs, Director, ADC
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Helena
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Submitted: June 20, 2014
Filed: June 23, 2014
[Unpublished]
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Before GRUENDER, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.

Appellate Case: 13-3382

Page: 1

Date Filed: 06/23/2014 Entry ID: 4167509

Arkansas inmate Charles Winston appeals the district court’s1 dismissal of his
42 U.S.C. § 1983 action against Theaster Petty, a kitchen supervisor with the Arkansas
Department of Correction (ADC), and various other ADC employees. After careful
review, we conclude that Winston’s retaliatory discipline claim failed as a matter of
law because Petty’s disciplinary report provides some evidence that Winston actually
violated prison rules. Cf. Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008)
(report from correctional officer, even if disputed by inmate and supported by no other
evidence, legally suffices as some evidence upon which to base prison disciplinary
violation, if violation is found by impartial decisionmaker). We also conclude that
Winston cannot create a genuine issue of material fact as to his hearing officer’s
impartiality based only on the allegation that Winston had previously filed grievances
against the hearing officer. See Meuir v. Greene Cnty. Jail Emps., 487 F.3d 1115,
1119 (8th Cir. 2007) (in case of retaliatory discipline, merely alleging that act was
retaliatory is insufficient).
We thus affirm. See 8th Cir. R. 47B. We also deny Winston’s pending motion
for appointment of counsel.
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1

The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable Beth
Deere, United States Magistrate Judge for the Eastern District of Arkansas.
-2-

Appellate Case: 13-3382

Page: 2

Date Filed: 06/23/2014 Entry ID: 4167509