Perry v. Dretke , 86 F. App'x 769 ( 2004 )

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.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:00-CV-274
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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this opinion should not be published and is not precedent except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
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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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