Burks-Bey, David v. VanNatta, John R. , 130 F. App'x 46 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 26, 2005*
Decided April 27, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-4025
DAVID M. BURKS-BEY, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of
Indiana, South Bend Division
v.
No. 3:04-CV-423
JOHN R. VANNATTA,
Respondent-Appellee. Allen Sharp,
Judge.
ORDER
Indiana inmate David Burks-Bey petitioned under 28 U.S.C. § 2254 to
overturn a disciplinary conviction for possessing tobacco. The district court denied
relief and we affirm.
While searching Burks-Bey’s cell, guards found and confiscated tobacco and
rolling papers but did not issue the typical Notice of Confiscated Property for these
items. They did, however, prepare an “Evidence Record” for the tobacco and
paraphernalia. Burks-Bey was then charged with unlawful possession, but he
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 04-4025 Page 2
pleaded not guilty and requested chemical analysis of the tobacco to aid him in
defending against the charge. Before the disciplinary hearing, Burks-Bey also
reminded Lt. Patrick McCoy, the Conduct Adjustment Board chairman, that McCoy
was a defendant in a pending lawsuit1 filed by Burks-Bey, who insisted that McCoy
would have a conflict of interest if he participated in the disciplinary hearing. But
McCoy presided anyway, and the CAB found Burks-Bey guilty after considering
staff reports, Burks-Bey’s statement, and the physical evidence. In justifying its
decision, the CAB noted that the prison does not have resources to conduct chemical
analysis. The CAB revoked 60 days’ earned credit time.
Indiana prisoners have a liberty interest in earned good-time credits, and are
entitled to due process before they are taken away. Piggie v. Cotton, 344 F.3d 674,
677 (7th Cir. 2003). Adequate process includes the opportunity to present
testimony and documentary evidence to an impartial decisionmaker.
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985); Wolff
v. McDonnell, 418 U.S. 539, 564-66 (1974); Piggie, 344 F.3d at 677.
As he argued before the district court, Burks-Bey contends that he was
denied an impartial CAB because Lt. McCoy was at the time a defendant in an
unrelated lawsuit brought by Burks-Bey. But CAB members will be disqualified
only when they cannot be impartial due to substantial involvement in the incident
or investigation underlying the disciplinary hearing. See Pannell v. McBride, 306
F.3d 499, 502 (7th Cir. 2002) (per curiam). As we have explained, “‘requiring each
staff member who is the subject of a separate lawsuit to disqualify himself from
sitting in judgment of that inmate would heavily tax the working capacity of the
prison staff.’” Piggie v. Cotton, 342 F.3d 660, 667 (7th Cir. 2003) (per curiam)
(quoting Redding v. Fairman, 717 F.2d 1105, 1113 (7th Cir. 1983)). And because
Burks-Bey has never identified a basis for disqualification other than McCoy’s
status as a defendant in his lawsuit, the district court was correct to reject this
claim.
Burks-Bey also renews the argument that prison officials denied his right to
present documentary and physical evidence by failing to issue a confiscation notice
and not performing a chemical analysis of the seized tobacco. This contention is
frivolous. As the superintendent explained in denying Burks-Bey’s administrative
appeal, a confiscation form for the tobacco and related paraphernalia should have
been issued to comply with prison regulations, see MCF Operational Procedure
1
That lawsuit in the Northern District of Indiana, No. 3:03-CV-577, was
dismissed without prejudice on March 18, 2005, after the district court interpreted
Burks-Bey’s motion to transfer the matter to an international court as a motion to
dismiss.
No. 04-4025 Page 3
02-01-101 § II D.6.M, but the failure to do so did not hinder Burks-Bey’s
preparation for the hearing. And of course the mere failure to comply with prison
regulations does not give rise to any federal claim. Johnson v. Bett, 349 F.3d 1030,
1037 (7th Cir. 2003). As to whether it was tobacco the guards found, prison officials
do not need a chemist to help decide the question. See United States v. Sanapaw,
366 F.3d 492, 496 (7th Cir. 2004) (holding that, even in a criminal trial, chemical
analysis not required to prove identity of suspected controlled substance); United
States v. Pigee, 197 F.3d 879, 890 (7th Cir. 1999) (sentencing judge may determine
cocaine base was crack through witness testimony, chemical analysis not required).
The rest of what Burks-Bey says in his brief about equal protection, the
strength of the evidence, and the CAB’s statement of reasons is nothing more than
a rehash of the preceding arguments, and does not merit additional discussion.
AFFIRMED.