Gaither, Fred v. Anderson, Rondle ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2511
Fred Gaither,
Petitioner-Appellant,
v.
Rondle Anderson,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:00-CV-101 AS--Allen Sharp, Judge.
Submitted December 21, 2000--Decided December 21, 2000/*
Opinion January 16, 2001
Before Bauer, Kanne, and Evans, Circuit Judges.
Per Curiam. Indiana prisoner Fred Gaither was
disciplined for theft and lost 60 days of earned
time credit. He challenged the sanction by filing
a petition for a writ of habeas corpus under 28
U.S.C. sec. 2254, claiming that he was denied due
process because (1) the evidence was insufficient
to support a finding of guilt; (2) he was not
allowed to view allegedly exculpatory evidence;
and (3) he did not receive an impartial hearing.
The district court denied relief, and we affirm.
On September 10, 1999, Sergeant Wheeler of
Indiana State Prison submitted a report to the
Conduct Adjustment Board (CAB), stating that he
reviewed a security camera videotape, which
showed Gaither taking a mattress from the "E Dorm
day room." Gaither was subsequently charged with
theft on the basis of this report.
Gaither testified at the ensuing disciplinary
hearing, denied that he stole a mattress, and
requested to view the security camera videotape.
In addition to Gaither’s testimony, the CAB had
before it the videotape, Sergeant Wheeler’s
conduct report, and two statements from an
Officer Mundt. According to Officer Mundt’s
statements, he observed Gaither with a mattress
on September 10, 1999, but because Gaither "had
just came [sic] off IDU," the officer alleged
that "he should not of [sic] had a [mattress]."
Officer Mundt further stated that although
Gaither claimed that the mattress had been issued
to him by the receiving department, Officer Mundt
"neither saw [Gaither] or logged him into
receiving as receiving anything on [September 10,
1999]," so if Gaither acquired a mattress, "it
came from somewhere else."
Based on all the evidence before it, the CAB
found Gaither guilty as charged, stating that
C.A.B. considered the offender’s statement and
the [conduct report] and witness statements.
Board members were leaving CCH at date and time
of the offender being transfered [sic] to CCH--
offender did have a mattress. Based on offender
having mattress at front door and tape does show
[sic] offender with mattress, C.A.B. finds
offender guilty.
Gaither appealed to the superintendent, who
affirmed the CAB’s decision. In response to
Gaither’s request to view the videotape, the
superintendent stated that "[t]he cellhouse
videotape indicated the opposite of what you
testified to and was used as evidence. . . . The
administration considers the videotapes generated
by the security cameras confidential. They [sic]
do not want the offenders to know the
capabilities of the cameras for security
reasons." On January 13, 2000, the prison’s final
reviewing authority modified the sanction imposed
by the CAB but affirmed the underlying
determination of guilt. Gaither then filed his
sec. 2254 petition, having exhausted all
administrative remedies.
Because Gaither has a liberty interest in the
good-time credits at stake in this case,
McPherson v. McBride, 188 F.3d 784, 785 (7th Cir.
1999), those credits could not be taken from him
without the minimal safeguards afforded by the
due process clause of the Fourteenth Amendment.
Ponte v. Real, 471 U.S. 491, 495 (1985). Gaither
submits that his hearing did not comport with the
minimal standards of due process for three
reasons. First, he alleges that the CAB’s finding
of guilt was not supported by "some evidence" as
required by Superintendent, Massachusetts
Correctional Institution, Walpole v. Hill, 472
U.S. 445, 455-56 (1985). We disagree. The "some
evidence" standard is less exacting than the
"preponderance of the evidence" standard and
requires only that the CAB’s decision not be
arbitrary or without support in the record. Id.
at 457. Here, the videotape, Sergeant Wheeler’s
conduct report, and Officer Mundt’s statements
clearly provide "some evidence" to support the
CAB’s decision. Cf. McPherson, 188 F.3d at 786(officer’s disciplinary report alone provided
"some evidence" to support a finding of guilt).
Gaither next contends that the CAB improperly
denied his request to view the security camera
videotape. In support of this argument, Gaither
cites cases such as Chavis v. Rowe, 643 F.2d 1281(7th Cir. 1981), in which we held that an inmate
is entitled to disclosure of exculpatory evidence
in prison disciplinary hearings, unless such
disclosure would unduly threaten institutional
concerns. Id. at 1285-86. But now, to obtain
habeas relief under the Antiterrorism and
Effective Death Penalty Act, Gaither must show
that his disciplinary hearing "resulted in a
decision that was contrary to, or involved an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court
of the United States." 28 U.S.C. sec. 2254(d)(1)
(emphasis added); see also Sweeney v. Parke, 113
F.3d 716, 718-19 (7th Cir. 1997). Gaither must,
in other words, find support in decisions of the
Supreme Court--not extensions of those decisions-
-in order to prevail. See Evans v. McBride, 94
F.3d 1062, 1065 (7th Cir. 1996) ("[I]f [our
circuit’s opinions] are extensions of (rather
than glosses on) the decisions of the Supreme
Court, they provide a poor foundation for relief
under the amended sec. 2254."). Chavis and its
progeny, however, are clearly extensions of the
rule announced in Brady v. Maryland, 373 U.S. 83(1963), see Chavis, 643 F.2d at 1285-86, and no
Supreme Court case has made a similar extension.
Gaither therefore cannot obtain relief on this
ground.
Furthermore, even if Chavis were to apply to
this case, Gaither would still not prevail.
Chavis recognizes that its rule requiring
disclosure of exculpatory evidence to an inmate
is limited to situations in which such disclosure
would not create security issues. Chavis, 643
F.2d at 1286. Here, prison officials articulated
a legitimate security concern for refusing to
disclose the videotape, namely, because they "did
not want the offenders to know the capabilities
of the cameras for security reasons." Moreover,
there is no reason to believe that the contents
of the videotape were exculpatory in the Brady
sense. The CAB reviewed the videotape and found
that it showed Gaither stealing a mattress.
Gaither has not identified anything in the record
that would undermine this finding, and so we fail
to see how disclosure of the videotape would have
in any way helped his case./1
We further reject Gaither’s argument that he
was denied his right to an impartial hearing
under Wolff v. McDonnell, 418 U.S. 539, 570-71
(1995). To guard against arbitrary decision
making, the impartiality requirement mandates
disqualification of a decision maker who is
directly or substantially involved in the
incident underlying a prison disciplinary
hearing, but it does not require disqualification
of a decision maker who is only "tangentially
involved." Merritt v. De Los Santos, 721 F.2d
598, 601 (7th Cir. 1983). Here, Gaither claims
that the CAB members were substantially involved
in the incident that was the subject of his
hearing because they saw him with a mattress on
the day of the alleged theft. But the CAB members
did not then write up any reports, interview any
witnesses, or otherwise participate in the
investigation of the incident. Indeed, there is
no suggestion that the CAB members were even
aware that the mattress was stolen when they saw
Gaither with it. Accordingly, we find that the
CAB members were only "tangentially involved" in
the incident and that disqualification was
therefore not required. Cf. Whitford v. Boglino,
63 F.3d 527, 534 (7th Cir. 1995) (finding no
substantial involvement where prison official
signed the disciplinary report but was not
actively involved in preparing the report or in
conducting any portion of the investigation).
For the reasons stated above, the judgment of
the district court is AFFIRMED.
/* Although our original disposition of this case
was by unpublished order under Circuit Rule 53,
we have subsequently decided to reissue the
decision as a published opinion.
/1 Because we conclude that Gaither was not entitled
to disclosure of the videotape, we decline to
consider the respondent’s suggestion that the CAB
should never be required to disclose security
camera videotapes due to safety concerns.