Eric Grandberry v. Brian Smith , 754 F.3d 425 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-2081
ERIC GRANDBERRY,
Petitioner-Appellant,
v.
BRIAN SMITH, Superintendent, Plainfield Correctional Facili-
ty,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:11-cv-0186-WTL-WGH — William T. Lawrence, Judge.
____________________
ARGUED MAY 23, 2014 — DECIDED JUNE 10, 2014
____________________
Before BAUER and EASTERBROOK, Circuit Judges, and ST.
EVE, District Judge. *
EASTERBROOK, Circuit Judge. While Eric Grandberry was
the head inmate law clerk at Indiana’s Putnamville Correc-
tional Facility, he used computers to download legal materi-
* Of the Northern District of Illinois, sitting by designation.
2 No. 12-2081
als for other prisoners. He also assisted the prison’s employ-
ees. The prison’s librarian asked him to obtain and fill out a
petition to stop child support, and another member of the
library’s staff asked him to obtain and fill out forms that her
daughter could use to apply for a divorce. Grandberry ful-
filled these requests.
In April 2011 the prison sent the library’s computers to
the Indiana State Police Crime Lab for analysis. Data recov-
ered from the hard drives showed what Grandberry had
done. He was moved to solitary confinement and charged
with administrative offense 207, “Possession of Electronic
Device.” This designates as an infraction the “[u]nauthorized
alteration, use or possession of any electronic device … .
(This offense includes accessing computers, software, the In-
ternet, a facility LAN, etc. or using such in a manner not au-
thorized by the Department of Correction … .)” A discipli-
nary officer revoked 30 days of his good-time credits.
Grandberry sought federal review under 28 U.S.C. §2254.
After the district court denied the petition, a panel of this
court concluded that he did not need a certificate of appeal-
ability. Grandberry v. Keever, 735 F.3d 616 (7th Cir. 2013). Alt-
hough every other court of appeals that has considered the
subject would require a certificate in a case arising from the
revocation of good-time credits, see Hayward v. Marshall, 603
F.3d 546 (9th Cir. 2010) (en banc) (collecting authority), the
panel declined Indiana’s request to overrule Walker v.
O’Brien, 216 F.3d 626 (7th Cir. 2000). The appeal was then
briefed and argued on the merits.
Grandberry contends with some force that the prison did
not use all constitutionally required procedures. See Wolff v.
McDonnell, 418 U.S. 539 (1974). He also contends that the
No. 12-2081 3
charge against him is not supported by evidence—and as
that argument, if accepted, would prevent the prison from
holding a second hearing, we start there. We end there too,
because the record does not contain evidence that Grandber-
ry used the library’s computers without authorization. Super-
intendent of Walpole v. Hill, 472 U.S. 445 (1985), holds that the
Constitution allows a state to revoke good-time credits only
when “some evidence” supports the decision. That’s not a
high standard: the Court observed that it entails less than the
“substantial evidence” standard commonly used in adminis-
trative law, and materially less than the “beyond a reasona-
ble doubt” standard used in criminal proceedings. But there
must be some evidence; here there is none.
True, Grandberry downloaded forms related to child
support and divorce, even though these were outside his
remit as assistant to prisoners who needed support with
problems arising from their custody. But the offense of
which he was accused entails the “unauthorized” use of a
computer, including “accessing … the Internet … in a man-
ner not authorized by the Department of Correction”. Indi-
ana concedes that employees of the prison directed Grand-
berry to do exactly what he did. His conduct therefore was
authorized.
That follows from the way the word “unauthorized”
normally is used. Prisons are not normal places and may
employ words in abnormal ways. Indiana does not do this
with the word “unauthorized,” however. One part of the
prison system’s thick pile of regulations defines “author-
ized” as:
4 No. 12-2081
Any of the following:
• According to Department and facility rules, policies,
procedures or directives;
• According to the direction or orders of a staff per-
son;
• According to an established facility custom ap-
proved by the facility administration; or,
• With permission from an appropriate staff person.
Indiana Department of Correction Policy 02-04-101 III.D.
Grandberry’s conduct was “authorized” under the second
and fourth definitions.
Indiana contends that Grandberry should not have fol-
lowed the staff’s directives. We assume that they ought not
have asked him for help on matters outside the scope of their
official duties. But how does that justify requiring Grandber-
ry to spend an extra month in prison? The infraction he was
found to have committed deals with unauthorized computer
use. What he did was “authorized” under the regulation,
which asks what orders or permissions the staff actually
gave, not what orders or permissions they should have given.
If Grandberry had not complied, he could have been disci-
plined for committing offense 347, “Refusing an Order”,
which prohibits “[r]efusing to obey an order from any staff
member.”
It is more than a little surprising to encounter an argu-
ment by a prison system that an inmate may be penalized
for obeying an order by the prison’s staff. Put to one side the
question whether the Constitution allows a whipsaw under
which a prisoner may be penalized whether or not he com-
No. 12-2081 5
plies with an order. Prisons regularly contend that prisoners
must obey all orders. “Comply now and protest later” is a
staple in prison life. It would ill serve the interests of the In-
diana Department of Correction to tell prisoners (as the De-
partment’s appellate brief insists) that they are not only enti-
tled but also required to disobey orders that should not have
been given. In such a regime prisoners undoubtedly would
become creative in finding justifications for disobedience.
Far better to have a norm of compliance; then staff members,
rather than the prisoners, get to decide in the first instance
which orders are proper and must be followed. If the library
staff gave Grandberry improper orders, the penalty should
fall on the staff members.
Doubtless some orders are so outré that they must be re-
jected, even at the risk of being charged with insubordina-
tion. If the librarian had handed Grandberry a knife and told
him to kill another inmate, he could have been penalized for
complying rather than making a beeline for the warden and
handing in the weapon. Official authorization is no defense
to a charge of murder. Cf. United States v. Bailey, 444 U.S. 394
(1980) (discussing the defenses of duress and necessity in
federal criminal law). Grandberry was charged not with vio-
lation of some unconditional norm such as “thou shalt not
kill” but with unauthorized use of a computer; a staff mem-
ber’s authorization refutes that charge.
The original conduct report alleged that Grandberry used
a computer to download pornography and tax forms as well
as divorce and child-support documents. He does not con-
tend that the library staff ordered or authorized him to do
either of those things. But an investigatory report dated two
weeks after the hearing concludes that both of those allega-
6 No. 12-2081
tions are unsupported. The state’s brief in this court does not
contend that the penalty could be justified on either of these
grounds, and counsel’s statement in oral argument that the
state is not giving up on them comes too late. Arguments
must be presented in the briefs; these were not and have
been forfeited, leaving no evidence at all.
Indiana maintains that Grandberry failed to alert the dis-
trict court adequately to his argument that he acted with of-
ficial authorization. Perhaps so, but the state bears the prin-
cipal responsibility. It refused to provide Grandberry with
the full investigative report, so he could not be sure exactly
what he supposedly did wrong. The prison’s hearing officer
stated that he found the report persuasive but did not so
much as hint at its contents, leaving Grandberry in the dark
when asking the district court for relief. Not until this case
reached the court of appeals, and we appointed counsel to
assist Grandberry, did the state disclose the full report—and
then only to counsel. (Grandberry now has a redacted ver-
sion, which is more than he was armed with in the district
court.) Counsel’s appellate arguments on Grandberry’s be-
half are more complete and focused than his pro se argu-
ments in the district court, but he made a comprehensible
due process argument and is entitled to elaborate on appeal.
Cf. Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 379
(1995); United States v. Billups, 536 F.3d 574, 578 (7th Cir.
2008).
The judgment is reversed, and the case is remanded with
instructions to issue a writ of habeas corpus restoring
Grandberry’s good-time credits.