Berghoff, William v. VanNatta, John

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 10, 2005*
Decided November 15, 2005
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1825
Appeal from the United States District Court
WILLIAM BERGHOFF, for the Northern District of Indiana, South
Petitioner-Appellant, Bend Division
v. No. 3:04cv0195 AS
JOHN R. VANNATTA, Allen Sharp,
Respondent-Appellee. Judge.
ORDER
Indiana inmate William Berghoff petitioned for a writ of habeas corpus
under 28 U.S.C. § 2254 seeking to overturn the decision of a prison disciplinary
board. The district court denied the petition. In this appeal Berghoff renews his
claim that prison officials denied him due process by failing to give him adequate
notice of the charge against him. We affirm.
*
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. 05-1825 Page 2
Berghoff was housed at the Westville Correctional Facility when staff
intercepted a box of tobacco in the incoming mail. An informant said Berghoff was
responsible, and according to the investigating officer, Berghoff when interviewed
admitted arranging for family members to send the tobacco to the prison. The
investigator also reported that another inmate, William Cooley, was to conceal the
tobacco until it was distributed to other inmates. Berghoff was charged with
trafficking, Ind. Dep’t of Corr. Disciplinary Code for Adult Offenders, 02-04-101,
App. I, Offense 113 (2004), but the parties dispute whether a copy of the
investigator’s conduct report was given to Berghoff when he was notified of the
charge at screening on July 25, 2003. The state maintains that it was, and the
state’s copy of the report includes that handwritten date next to Berghoff’s
purported signature. Berghoff, though, insists he did not receive a copy of the
conduct report until six days later at his July 31 disciplinary hearing. His copy is
not signed.
Berghoff, who denied making an inculpatory statement to the investigator,
was found guilty and sanctioned with six months of disciplinary segregation and
the loss of 120 days of earned credit time. He unsuccessfully appealed this decision
to both the facility head and the final reviewing authority.
In this court, Berghoff abandons all but his claim that he did not receive
adequate notice of the charge against him as required by the Due Process Clause.
A prisoner charged with violating a disciplinary rule is entitled to written notice of
the specific offense and the underlying facts at least 24 hours before the matter is
adjudicated. Wolff v. McDonnell, 418 U.S. 539, 564 (1974); Northern v. Hanks, 326
F.3d 909, 910 (7th Cir. 2003) (per curiam); Whitford v. Boglino, 63 F.3d 527, 534
(7th Cir. 1995) (per curiam).
Berghoff contends that notice was deficient in his case because, he says, he
was not given a copy of the conduct report until his disciplinary hearing. The
district court ruled, and the state argues, that Berghoff did not exhaust his
administrative remedies with respect to this claim because he did not mention it in
his initial appeal to the facility head. Indeed, Berghoff admits that he did not
present his notice claim to the facility head, and if this was the determinative
question we would agree with the state that Berghoff failed to exhaust. See Moffat
v. Broyles, 288 F.3d 978, 982 (7th Cir. 2002) (suggesting that a prisoner must
present his claims to “each administrative level” to exhaust administrative
remedies). However, if the final reviewing authority decided Berghoff’s notice claim
on the merits despite his failure to raise it at the first level of administrative
review, then this claim would be deemed exhausted. See Conyers v. Abitz, 416 F.3d
580, 584 (7th Cir. 2005). Berghoff conceded in the district court that the final
reviewing authority did not decide his notice claim, but now he appears to argue the
opposite. We believe the decision of the final reviewing authority is unclear on this
No. 05-1825 Page 3
point, and rather than decide the question, we conclude that Berghoff’s claim fails
on the merits.
Berghoff has not explained how the allegedly deficient notice prejudiced him.
See Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003) (per curiam) (applying
harmless error analysis to due process claim in prison disciplinary context); see also
Ward v. Sternes, 334 F.3d 696, 708 (7th Cir. 2003); Evans v. McBride, 94 F.3d 1062,
1065 (7th Cir. 1996). Although Berghoff says he did not receive a copy of the
conduct report until his hearing, he never explicitly alleged in the district court that
prison officials failed to relate the contents of the conduct report when they told him
about the charge at screening, six days before the hearing. In fact his copy of the
screening document is signed by him and is dated July 25. This document discloses
that Berghoff was charged with violation number 113, trafficking. The document
also memorializes Berghoff’s intention to call William Cooley as a witness on the
premise that Cooley would testify he “never held anything” for Berghoff. So
Berghoff was well aware of the factual basis for the charge. He knew the charge
was trafficking, and that it involved Cooley hiding some contraband for him. He
also knew enough to identify a potential supporting witness. Berghoff does not say
what else he would have done if he had received a copy of the conduct report
earlier.
Accordingly, we AFFIRM the decision of the district court.