Pigg, Steve v. Finnan, Alan

NONPRECEDENTIAL DISPOSITION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 August 14, 2008*
Decided August 18, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-1446
STEVE PIGG, Appeal from the United States District Court
Petitioner-Appellant, for the Southern District of Indiana,
Terre Haute Division.
v.
No. 07 C 209
ALAN FINNAN,
Respondent-Appellee. Larry J. McKinney,
Judge.
ORDER
Guards at the Wabash Valley Correctional Facility searched inmate Steve Pigg and
his cell. Mr. Pigg had a bag of loose tobacco, and there was a can of chewing tobacco in the
cell. After the search Mr. Pigg admitted that the loose tobacco was his. Mr. Pigg was
charged with a Class B offense under § B-245 of the Indiana Adult Disciplinary Procedures
for unauthorized possession of “more than one (1) cigarette, any tobacco, tobacco
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
No. 08-1446 Page 2
associated products or unauthorized tobacco substitute products.” At his disciplinary
hearing, Mr. Pigg apparently tried, but was not permitted, to introduce a written statement
from his cellmate, who claimed responsibility for the “pinch of snuff” found in the cell.
Mr. Pigg told the board that the bag of tobacco was his, but said there wasn’t enough loose
tobacco to roll more than one cigarette. The board found Mr. Pigg guilty of the violation
and sanctioned him with a loss of 60 days earned credit time. In his administrative appeal,
Mr. Pigg argued unsuccessfully that the board should have considered his cellmate’s
statement, and he makes the same claim in the petition for habeas corpus he filed in the
district court under 28 U.S.C. § 2254. The district court, reasoning that Mr. Pigg was not
denied due process because his cellmate’s statement is not exculpatory, denied the petition.
On appeal Mr. Pigg presses his argument that the statement is relevant to the proper
classification of his infraction and thus should have been considered by the board.
Our review is de novo. Pannell v. McBride, 306 F.3d 499, 502 (7th Cir. 2002). Indiana
inmates have a liberty interest in their good-time credits, and prison officials may not
revoke them without due process. Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004); Piggie
v. McBride, 277 F.3d 922, 924 (7th Cir. 2002). Due process requires, as relevant here, that
prisoners have the opportunity to call witnesses and present documentary evidence. Wolff
v. McDonnell, 418 U.S. 539, 566 (1974); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003).
It is not clear that Mr. Pigg even offered his cellmate’s statement at the disciplinary
hearing; he says he did, so at this stage we accept his representation as true. But assuming
he did, any error on the board’s part was harmless. See Piggie v. Cotton, 344 F.3d at 666 (7th
Cir. 2003). In his written statement the cellmate acknowledges ownership of the “pinch of
snuff,” while at the same time insisting that the “cigarette” found by the guards was
Mr. Pigg’s. Even viewing this statement in the most generous possible light, it serves to
incriminate, rather than exculpate. Mr. Pigg argues that the cellmate’s statement supports
his contention that only the tobacco in the bag belonged to him and that the amount of
loose tobacco was equivalent to one cigarette. Therefore, reasons Mr. Pigg, he is guilty, not
of violating § B-245, but of a lesser Class C offense. See A DULT D ISCIPLINARY PROCEDURES §
C-369. But there are a couple of problems with Mr. Pigg’s argument. First, § B-245
provides that an inmate commits a Class B offense by “use or possession of more than one
(1) cigarette, any tobacco, tobacco associated products or unauthorized tobacco substitute
products.” The state argues that the amount of tobacco is irrelevant because possession of
any loose tobacco instead of an actual cigarette violates the proscription. This
interpretation fits the language of § B-245, and Mr. Pigg does nothing to convince us to
adopt any other interpretation. Second, even if the chewing tobacco did not belong to
Mr. Pigg, it was found in his bunk. Prison disciplinary decisions must be supported by
“some evidence.” Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007). When only a few
inmates have access to the place contraband is found, constructive possession is “some
No. 08-1446 Page 3
evidence” sufficient to sustain a disciplinary conviction. See Hamilton v. O’Leary, 976 F.2d
341, 345 (7th Cir. 1992); Mason v. Sargent, 898 F.2d 679, 679-80 (8th Cir. 1990). Because the
cellmate’s statement would not have changed the outcome of Mr. Pigg’s case, any error in
refusing to admit it was harmless, and the judgment of the district court is
AFFIRMED.