Robert Brenneman, Jr. v. Wendy Knight ( 2008 )

NONPRECEDENTIAL DISPOSITION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 October 30, 2008*
Decided October 30, 2008
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08-2121
ROBERT C. BRENNEMAN JR., Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:07-cv-1553-LJM-TAB
WENDY KNIGHT,
Respondent-Appellee. Larry J. McKinney,
Judge.
ORDER
Indiana inmate Robert Brenneman appeals from the denial of his petition for a writ
of habeas corpus. See 28 U.S.C. § 2254. He claims that he was denied due process at a
disciplinary hearing because, he insists, he did not receive adequate notice of the charge or
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Accordingly, the appeal is submitted on the briefs and the record. See FED. R.
A PP. P. 34(a)(2).
No. 08-2121 Page 2
a sufficient opportunity to present witnesses, and the evidence did not support the finding
of guilt. We affirm.
On August 29, 2007, Brenneman received a Report of Conduct accusing him of
“engaging in sexual acts with another or making sexual proposals, gestures, or threats” in
violation of section B-216 of the Adult Disciplinary Procedures governing inmates. The
report explains that Brenneman had reached over the shoulder of Reverend Donna Olsen, a
volunteer instructor at the facility, and touched her bra strap below the collarbone.
Brenneman opted to contest the allegation and told the screening officer that he wished to
call as witnesses inmates Brosius, Santistevan, and Hensley. At the disciplinary hearing on
September 5, the Board received into evidence an e-mail from Olsen in which she alleges
that Brenneman, after arriving late to a class she was conducting in the chapel, walked
behind the chair where she was seated, reached over her shoulder, and through her blouse
touched her bra strap and the soft area below her clavicle. Olsen said she was sitting in the
front row at the time, and that 15 of the roughly 30 men in the class were sitting behind her.
Brenneman asserted that he simply tapped Olsen on the shoulder. His three witnesses
submitted statements attesting to his good character but did not describe Brenneman’s
contact with Olsen. The Board found Brenneman guilty and revoked 90-days good-time
credits, demoted him in credit-class, and ordered him to serve 90 days in segregation.
Two weeks later Brenneman filed an administrative appeal. Among several
contentions, he asserted that when the Report of Conduct was screened, he had asked that
all of the inmates in the class be interviewed, but was forced to select three. He was
segregated awaiting hearing, Brenneman explained, so he could not conduct any further
investigation on his own. But after the disciplinary hearing, Brenneman continued, he
obtained statements from three other inmates, all of whom maintain that Brenneman
tapped Olsen on the shoulder and that nothing inappropriate occurred. The warden
rejected Brenneman’s appeal, as did the final reviewing authority.
In his § 2254 petition Brenneman alleged, among other things, that because he was
in segregation before the disciplinary hearing, he could not identify the witnesses who
actually saw the incident, and that first the screening officer and later the Board dismissed
as redundant or irrelevant his requests for additional testimony. Brenneman also claimed
that he did not get adequate notice of the charge and that the Board did not have sufficient
evidence to find him guilty. The district court explicitly rejected the last two contentions
but did not specifically address Brenneman’s claim that he was denied his right to present
testimony from additional witnesses. Our review is de novo. Moore v. Battaglia, 476 F.3d
504, 506 (7th Cir. 2007).
No. 08-2121 Page 3
Brenneman’s claims about the notice he received and the evidence underlying the
Board’s decision can be quickly rejected. Brenneman contends that the notice of the charge
was inadequate because, he insists, he did not receive a written copy of Olsen’s e-mail
when the charge was screened. Brenneman lost good-time and was demoted in credit-
class, so he had a right to due process at his hearing. See Scruggs v. Jordan, 485 F.3d 934, 939
(7th Cir. 2007); Montgomery v. Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001). Thus he was
entitled to written notice of the rule he allegedly violated and a summary of the conduct
underlying that charge. See Northern v. Hanks, 326 F.3d 909, 910 (7th Cir. 2003); Whitford v.
Boglino, 63 F.3d 527, 534 (7th Cir. 1995). Over a week before the hearing, Brenneman
received the Report of Conduct informing him of the charge by name and section number.
That report also summarizes the alleged incident. Moreover, Brenneman concedes that
Olsen’s e-mail was read to him when the charge was screened. Nothing more was
required. See Northern, 326 F.3d at 910; Whitford, 63 F.3d at 534.
As to the evidence, due process was satisfied if the Board had “some evidence” to
support its findings. See Piggie v. Cotton, 342 F.3d 660, 662 (7th Cir. 2003); Webb v. Anderson,
224 F.3d 649, 651 (7th Cir. 2000). Brenneman argues that no evidence supports the Board’s
conclusion that he intended to touch Olsen in a sexual manner. A disciplinary board’s
resolution of two competing stories need only have some factual support, and a brief
description of the events in a disciplinary report can satisfy that standard. Johnson v.
Finnan, 467 F.3d 693, 695 (7th Cir. 2006); McPherson v. McBride, 188 F.3d 784, 786, (7th Cir.
1999). Olsen recounts in her e-mail that Brenneman reached over her shoulder and through
her blouse touched her bra strap with his middle finger and the area below her clavicle
with another finger. Olsen’s description is enough to support the Board’s finding.
Brenneman’s remaining contention is that he was not permitted to call the inmate
witnesses who told him after the hearing that they saw him tap Olson on the shoulder but
do nothing inappropriate. Brenneman says these witnesses were not located before the
hearing because the screening officer would not offer to let staff interview the entire class
and he could not do so himself while in segregation. Courts must exercise caution in
overturning the judgment of a prison official who concludes that an inmate’s request to call
witnesses will compromise the needs and objectives of the institution or otherwise impose
an onerous burden on prison staff. See Ponte v. Real, 471 U.S. 491, 496 (1985); Wolff v.
McDonnell, 418 U.S. 539, 566-67 (1974); Whitlock v. Johnson, 153 F.3d 380, 386 (7th Cir. 1998).
Brenneman’s claim fails because he demanded that prison staff interview Olsen’s entire
class—over 30 inmates—to determine who saw the incident. The outcome may have
differed had Brenneman instead requested that prison staff give him a roster of the class so
that he could name other witnesses that he wanted to call, see Kingsley v. Bureau of Prisons,
937 F.2d 26, 30-31 & n.6 (2d. Cir. 1991), or if prison officials had refused his request to
obtain statements from a select number of specific witnesses, see Pannell v. McBride, 306
F.3d 499, 503-04 (7th Cir. 2002). But requiring the staff to conduct a fishing expedition,
No. 08-2121 Page 4
particularly of the magnitude Brenneman requested, would have imposed too great a
burden. Moreover, the prison staff’s refusal to find Brenneman’s witnesses did not
prejudice him, and thus did not violate due process, because Brenneman’s appeal was
denied even after he submitted statements from the three inmates who asserted that they
saw Brenneman do nothing inappropriate. See Piggie, 342 F.3d at 666-67 (explaining that
due process was not violated where decision of purportedly biased disciplinary board was
upheld on administrative review).
AFFIRMED.