Webb, James v. Hanks, Craig A. , 150 F. App'x 564 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 31, 2005*
Decided October11, 2005
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-1599
JAMES WEBB, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Indiana, South Bend Division
v.
No. 3:04cv421 AS
CRAIG A. HANKS,
Defendant-Appellee. Allen Sharp,
Judge.
ORDER
Indiana inmate James Webb petitioned for a writ of habeas corpus under 28
U.S.C. § 2254, challenging a disciplinary conviction that resulted in a loss of 90
days of earned credit time and a demotion in credit earning class. Webb contended,
as relevant to this appeal, that he was denied due process because the Conduct
Adjustment Board (“CAB”) found him guilty without sufficient evidence and refused
him access to confidential reports. The district court denied the petition and we
affirm.
Webb’s disciplinary case began when he argued with Officer Tibbles over the
use of a microwave to pop a bag of popcorn. An altercation occurred when Webb
*
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. 05-1599 Page 2
was returning to his cell, and the incident was referred to Internal Affairs Officer
Whelan. Whelan interviewed the three guards involved in the altercation,
Sergeant Boyan and Officers Calhoun and Dukes. He also reviewed reports by the
guards contained in a confidential Internal Affairs file, watched a surveillance
videotape, and attempted to interview an uncooperative Webb. In his Report of
Conduct, which was provided to Webb, Whelan states that Webb struck Calhoun
several times in the head, kicked Boyan, and attempted to strike Dukes. Whelan
also reports that Webb managed to take a canister of an unidentified chemical
agent from one of the officers, and sprayed all three with the substance. As a result
of the investigation, Webb was charged under the prison’s disciplinary code with
three counts of battery.
Webb’s hearing before the CAB commenced on March 15, 2004, but was
continued to give him more time to prepare. Webb wanted statements from inmate
witnesses and from Sergeant Boyan and Officers Calhoun and Dukes. Webb also
requested a lay advocate and asked to see the surveillance videotape and the
confidential reports submitted by the officers to Internal Affairs. He was refused
access to the videotape and confidential reports, but he obtained written statements
from officers Tibbles and Calhoun, and from two inmates. Tibbles recounts in her
statement that Officer Calhoun intervened in the argument between her and Webb,
and ordered Webb to return to his cell. Webb and Calhoun then disappeared from
view, but moments later Sergeant Boyan ran past in the direction they had gone.
From a distance, Tibbles says, she heard Webb yell the words “kick his ass.” Boyan
reports in his written statement that Webb struck both him and Calhoun. The two
inmates maintain in their written statements, however, that Calhoun started the
physical altercation when he “slapped Webb on the leg with handcuffs.”
The CAB resumed Webb’s hearing on March 22, 2004. The four statements
obtained by Webb were introduced, but he still was not permitted to review the
confidential reports given by the guards to Internal Affairs. Webb also was
informed that he could not view the videotape because letting him watch it would
jeopardize facility security. The CAB did tell him, however, that the “incident was
not visible on the field of view of the camera.” After reviewing the Internal Affairs
case file, Whelan’s Report of Conduct, the surveillance video, and the witness
statements obtained at Webb’s request, the CAB found Webb guilty of the three
charged batteries. Webb’s administrative appeals were denied.
Webb has a protected liberty interest in his good time credits and credit
earning class, Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004), and thus he was
entitled to due process before the prison deprived him of either, Piggie v. Cotton,
344 F.3d 674, 677 (7th Cir. 2003). Due process requires that a prisoner be afforded
written notice of the charge at least 24-hours before his hearing, a limited
opportunity to call witnesses and present documentary evidence to an impartial
No. 05-1599 Page 3
decision-maker, and a written statement that is supported by “some evidence” in
the record to explain the disciplinary action. See Superintendent, Mass.
Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455-56 (1985); Wolff v. McDonnell,
418 U.S. 539, 564-66 (1985); Cotton, 344 F.3d at 677.
Webb first contends that the CAB lacked sufficient evidence for its decision
because, as he says, the confrontation was not recorded by the surveillance camera,
the canister of chemical agent was not confiscated, the officer’s injuries were not
documented, and Officers Boyan, Calhoun, and Dukes “did not give statements.”
We apply a “lenient standard” when reviewing the sufficiency of the evidence
supporting a prison disciplinary decision, asking “whether there is any evidence in
the record that could support the conclusion reached by the disciplinary board.”
See Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (citation omitted). Here,
the Report of Conduct completed by Whelan is alone enough to meet this standard.
See McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999) (disciplinary report
describing conduct that violates prison rule is “some evidence”).
Webb also argues that he should have been given access to the officers’
confidential reports and that, as a matter of prison regulations, Whelan’s Report of
Conduct was incomplete because he did not attach those reports. We have held,
though, that “prison disciplinary boards are entitled to receive, and act on,
information that is withheld from the prisoner and the public.” White v. Indiana
Parole Bd., 266 F.3d 759, 767 (7th Cir. 2001). Thus, the CAB could review the
confidential reports without disclosing them to Webb. Moreover, because Webb
received Whelan’s Report of Conduct and written statements from Officers Tibbles
and Calhoun, he was aware of the charges against him and cannot claim that he
was unable to prepare his defense. Finally, Webb’s contention that Whelan was
obligated to attach the reports to his Report of Conduct appears to us factually
incorrect and, in any event, is not grounds for relief. Webb cites two subsections of
Indiana Department of Correction Administrative Procedure 02-04-101, only one of
which might be applicable to Whelan’s Report of Conduct. That provision requires
an employee who completes a Report of Conduct to collect and attach “statements”
from employees “listed as witnesses” on the report, but Whelan’s report does not list
any employee witnesses. Nor is it obvious to us that the reference to “statements”
in the regulation encompasses confidential reports prepared for Internal Affairs. In
any event, a violation of a prison administrative procedure would be an
infringement of state law, which is not grounds for relief under § 2254. Jackson v.
Frank, 348 F.3d 658, 663 (7th Cir. 2003) (“[R]eview of a habeas petition by a federal
court is limited to consideration of violations of federal law or the United States
Constitution.); Dellinger v. Bowen, 301 F.3d 758, 764 (7th Cir. 2002); Kraushaar v.
Flanigan, 45 F.3d 1040, 1049 (7th Cir. 1995).
AFFIRMED.