John Moultrie v. Dale Foltz David Bowers T. Craig

863 F.2d 883, 1988 U.S. App. LEXIS 16364, 1988 WL 128016

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 2, 1988
• Docket: 88-1548
• Status: Unpublished

Opinion

863 F.2d 883

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
John MOULTRIE, Plaintiff-Appellant,
v.
Dale FOLTZ; David Bowers; T. Craig, Defendants-Appellees.

No. 88-1548.

United States Court of Appeals, Sixth Circuit.

Dec. 2, 1988.

Before KEITH and KRUPANSKY, Circuit Judges and CONTIE, Senior Circuit Judge.

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

John Moultrie appeals the denial of his motion for relief from the judgment dismissing his prisoner civil rights complaint filed under 42 U.S.C. Sec. 1983. Moultrie alleged that the defendant prison officials deprived him of due process during a prison disciplinary proceeding which resulted in his conviction for substance abuse. Upon consideration, we conclude that the district court was within its discretion in denying plaintiff's motion.

We construe plaintiff's motion for relief from judgment as a Fed.R.Civ.P. 60(b) motion because it was not filed within the period prescribed for a Fed.R.Civ.P. 59 motion. Accordingly, we review the denial of plaintiff's motion only for abuse of discretion. See Union Oil Co. v. Service Oil Co., 766 F.2d 224, 227 (6th Cir.1985). Abuse of discretion will be found only where clear error was committed. Union Oil Co., 766 F.2d at 227.

The district court did not abuse its discretion in denying plaintiff's motion. Plaintiff alleged that urine which tested positive for marijuana use was not his. However, due process requires only that the conviction be supported by "some evidence in the record." Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455-56 (1985). Here, the record clearly reflects that plaintiff's conviction is supported by "some evidence."

Accordingly, the judgment of the district court is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.