Davis v. Corrections ( 1995 )

USCA1 Opinion

        April 5, 1995           [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 94-2032 

                                     ERIC DAVIS,

                                Plaintiff, Appellant,

                                          v.

                       NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE


                [Hon. Martin F. Loughlin, Senior U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Eric Davis on brief pro se.
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            Jeffrey  R.  Howard,  Attorney   General,  and  Lucy   C.  Hodder,
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        Assistant Attorney General, on brief for appellee.


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                      Per Curiam.   Eric Davis, a  New Hampshire  inmate,
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            brought  this action under 42 U.S.C.   1983 alleging that his

            due process  rights had  been violated in  connection with  a

            prison reclassification  hearing.   From an award  of summary

            judgment for  defendants (who  are  two classification  board

            members sued  in their personal capacities),  he now appeals.

            Plaintiff's contention that material  facts remain in dispute

            proves mistaken.  Although we read the record and indulge all

            inferences in a light most favorable to the non-moving party,

            see, e.g., Vasapolli  v. Rostoff,  39 F.3d 27,  32 (1st  Cir.
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            1994),  "the adverse  party  cannot defeat  a  well-supported

            motion"--as  plaintiff   has   attempted  to   do   here--"by

            'rest[ing]  upon the  mere  allegations or  denials of  [his]

            pleading.'"   Data General  Corp. v. Grumman  Systems Support
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            Corp.,  36 F.3d 1147, 1159  (1st Cir. 1994)  (quoting Fed. R.
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            Civ. P.  56(e)).  As  a result, defendants'  evidence--to the

            effect that the reclassification hearing was held on November

            3, 1993 with plaintiff  in attendance--is undisputed for Rule

            56 purposes,  warranting judgment in their  favor.  Moreover,

            for  the reasons recited by the district court, we agree that

            defendants  would be entitled to qualified immunity even if a

            de  minimis  constitutional  violation were  deemed  to  have
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            occurred.

                      Affirmed.
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