Alan Scott v. Brian R. Jett , 380 F. App'x 539 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 16, 2010*
Decided June 16, 2010
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09-3436
ALAN N. SCOTT, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of Indiana,
Terra Haute Division.
v.
No. 2:09-cv-125-RLY-WGH
BRIAN R. JETT,
Respondent-Appellee. Richard L. Young,
Judge.
ORDER
In three separate disciplinary actions, Alan Scott, a federal prisoner, was found
guilty of fighting, possessing contraband, attempting to obtain money for bribery and
gambling, and plotting to use code words on a telephone. (The last two charges were
*
After examining 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. 09-3436 Page 2
brought in one proceeding.) In each case, a hearing officer punished Scott by stripping him
of good time and imposing other sanctions. After exhausting his administrative remedies,
Scott sought collateral review of all three proceedings under 28 U.S.C. § 2241. In this appeal
from the denial of his petition, Scott renews the claims he made in his petition and also
challenges the district court’s denial of several discovery requests. We affirm the judgment.
For all three disciplinary cases, Scott claims that the evidence is too thin. The first
case arose from a 2001 allegation that Scott had “flicked” another inmate on the ear at least
three times before that inmate slapped him in return, after which guards separated the pair.
Scott was found guilty of fighting, see 28 C.F.R. § 541.13, tbl. 3, Code 201, but he insists that
he never touched anyone or, alternatively, that “flicking” is horseplay, not fighting.
In evaluating Scott’s sufficiency challenges, we apply the “some evidence” standard.
See Superintendent v. Hill, 472 U.S. 445 (1985); Johnson v. Finnan, 467 F.3d 693, 695 (7th Cir.
2006). An incident report written by a guard satisfies this standard. Bandy-Bey v. Crist, 578
F.3d 763, 766 (8th Cir. 2009); Hudson v. Johnson, 242 F.3d 534, 536-37 (5th Cir. 2001);
McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999). Here, the incident report and
witness interviews establish that intervention was necessary to separate the two inmates,
which supports a conclusion that the scuffle had escalated beyond horseplay. Thus, “some
evidence” supports the charge.
The second disciplinary action arose in 2004 when a search of Scott’s cell for “excess
property” turned up a compact disc containing tax-preparation software. The CD was
hidden in an envelope that had been altered to obscure its contours and hide it from less
rigorous searches. (Scott insists that the guards themselves doctored the envelope.) This
time Scott was found guilty of possessing an item he was not authorized to receive. See 28
C.F.R. § 541.13, tbl. 3, Code 305.
At the hearing Scott conceded that guards found the CD in his cell. And a mail-room
employee testified that staff always searched Scott’s incoming mail for computer media,
never issued such materials to him, and consistently returned computer media to the
sender. That evidence, together with the report of the doctored envelope, supports the
conclusion that Scott had taken steps to avoid the CD’s detection because he knew no one
had authorized him to receive it. Accordingly, “some evidence” supports this charge.
The third disciplinary action also took place in 2004. Scott was accused of scheming
to transfer money into the prison for a prohibited purpose, see 28 C.F.R. § 541.13, tbl. 3, Code
217A, and attempting to develop code words for use in discussing the prohibited money
transfers by telephone, see id., Code 297A. (The “A” next to each offense code designates
liability for an attempt or plan. See id. § 541.13(b).) According to the incident report, Scott
No. 09-3436 Page 3
wrote a letter asking an acquaintance outside the prison to channel $250 to another inmate
so that the pair could “buy [their] way into” a new cell and be made cell
mates—presumably by bribing someone at the prison. Scott added that future money
transfers could be used to bet on football games. His letter also provided code words to use
in telephone conversations about the transactions. According to the report, Scott admitted
his guilt when confronted with the letter.
The hearing officer reported that, at the disciplinary hearing, Scott still admitted
writing the letter but argued that the telephone charge was too “speculative” because he
never formalized a plan to talk on the telephone on a particular date. The hearing officer,
unpersuaded, found Scott guilty, but an administrative appeal won Scott a new hearing
because much of the material from the investigation into Scott’s recent financial transactions
had not reached the hearing officer. At a second hearing the presiding officer reviewed
additional evidence, including money orders sent by Scott’s outside accomplice to another
inmate and a memorandum from an investigator who spoke with postal inspectors in
Massachusetts about Scott’s correspondence. That memo explained how Scott and the other
inmate had used a Massachusetts resident as a go-between. The hearing officer sustained
the finding of guilt, and Scott’s contention that this collection of evidence is too thin to
satisfy the “some evidence” standard is frivolous.
Next, Scott contends that the district court wrongly denied his motions to compel the
warden to make admissions, answer interrogatories, and produce policy statements,
memoranda, and any contraband and letters referred to in the disciplinary actions. A
district court has discretion to grant limited discovery in habeas-corpus cases. Bracy v.
Gramley, 520 U.S. 899, 904 (1997). But if a petitioner fails to show “good cause,” i.e., that the
sought-after discovery would likely influence the outcome of his petition, the district court
commits no abuse of discretion in denying his request. Hubanks v. Frank, 392 F.3d 926, 933
(7th Cir. 2004). Here, none of the discovery Scott sought would have undermined the
sufficiency of the evidence in any of the disciplinary actions.
Finally, Scott argues that the deprivation of good time in the third disciplinary action
exceeded that allowed by applicable regulations. But that claim is not properly before us
because Scott never presented it to the district court in any meaningful way. See Johnson v.
Hulett, 574 F.3d 428, 429 (7th Cir. 2009); Pole v. Randolph, 570 F.3d 922, 937-38 (7th Cir. 2009).
The claim is not included in Scott’s § 2241 petition, and although he was given leave to
amend his petition, his amendment simply asserts in a sentence that too much good time
was taken away. Scott did not provide the district court with a factual predicate or explain
why he believes that the sanctions imposed were not authorized, so we cannot fault the
district court for not addressing the propriety of the sanctions. And though Scott devotes
No. 09-3436 Page 4
several pages of his brief to the subject and supplies factual detail that was not given to the
district court, we cannot resolve his contention in the first instance.
We have considered Scott’s remaining arguments and determined that they are
without merit and do not warrant further discussion.
AFFIRMED.