Kevin Martin v. John Galipeau ( 2020 )

NONPRECEDENTIAL DISPOSITION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 April 10, 2020*
Decided April 13, 2020
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 19‐2761
KEVIN L. MARTIN, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Indiana,
Terre Haute Division.
v. No. 2:18‐cv‐00429‐JMS‐DLP
JOHN GALIPEAU, Jane Magnus‐Stinson,
Respondent‐Appellee. Chief Judge.
ORDER
Kevin Martin, an Indiana prisoner, was charged with making a threat. A
disciplinary hearing officer found him guilty and revoked 60 days of good‐time credit.
After exhausting his administrative remedies, Martin filed a petition for a writ of habeas
corpus, see 28 U.S.C. § 2254, arguing that the disciplinary proceedings did not comport
with due process because his conviction was not supported by sufficient evidence and
* We have agreed to decide this case without oral argument because the briefs
and the record adequately present the facts and legal arguments, and oral argument
would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19‐2761 Page 2
he was wrongly denied evidence. The district court denied Martin’s petition. Because
some evidence supports Martin’s disciplinary conviction, and the evidence he requested
could not have helped his defense, we affirm.
Correctional officer M. Foster (whose full name is not in the record) issued a
conduct report to Martin, alleging that she heard him make a threat, in violation of the
prison’s disciplinary rules. Foster reported that at approximately 1:20 p.m., roughly ten
minutes after she had spoken to Martin about property he had requested, he began
kicking his cell door and yelling for a sergeant. Foster wrote that she “stepped out onto
the Range” and heard Martin yell, “Wait until I get my hands on one of you punk ass
bitches.” According to Foster, she then asked Martin if he knew that what he had said
was a threat, and Martin responded that he was “damn sure” it was. Foster attached to
the conduct report a handwritten statement from a caseworker, Jerricha Meeks, who
wrote that from her office, she had heard Martin yell: “Wait until I get my hands on you
punk ass bitches.” Later Meeks also typed up a “case note” (the context in which it was
prepared is unclear) that essentially restates Foster’s account of the incident.
When informed of the charge, Martin pleaded not guilty and requested evidence
to defend his case. He asked for four witnesses: two other prisoners, to corroborate his
story, one officer to explain “why he did not give me my property,” and a sergeant to
explain “what this whole situation was about”—that is, why he had been yelling.
Martin also requested that the disciplinary hearing officer review the video recording of
the range—the common area into which the cell doors open—from 1:05 p.m. to
1:30 p.m. on the date of the incident.
The hearing officer reviewed the portion of the video from 1:16 p.m. to 1:29 p.m.
It is unknown why the hearing officer did not begin reviewing the video at 1:05 p.m., as
Martin requested. The video, which did not include sound, did not depict Foster
interacting with Martin. It also did not show that Foster “stepped out onto the range”
other than to pass through six times, escorting inmates with another correctional officer.
The two prisoners who provided witness statements asserted that Martin had
been “talking to the range,” “not referring” to Foster, and “yelling for the control room
to get assistance for his situation.” Martin was not allowed to call as witnesses the two
officials he identified, neither of whom had been present when he was yelling, but they
gave short witness statements in the pre‐hearing investigation. The sergeant stated that
he spoke with Martin after the incident and was told “it was all over him not getting his
[allowed] property on time,” and the officer stated that Martin had received his
property on the day of the incident.
No. 19‐2761 Page 3
At the disciplinary hearing, Martin argued that Foster’s conduct report and
Meeks’s statement were false. This evidence, he argued, had been fabricated as
retaliation for his prior grievances filed against Meeks. The hearing officer considered
Martin’s testimony, Foster’s report, Meeks’s statement, the other prisoners’ statements,
and the video. Crediting Foster’s and Meeks’s statements over Martin’s denial, the
hearing officer found Martin guilty. Among other sanctions, Martin lost 60 days of
good‐time credit.
After losing his internal appeals, Martin filed this petition under § 2254. He
argued that he had been deprived of due process in three ways: First, the evidence
supporting his disciplinary conviction was insufficient because the video showed that
no officer entered the range at the time of the alleged threat and Foster’s and Meeks’s
statements had been fabricated as retaliation for prior grievances filed against Meeks.
Second, he had been wrongly denied evidence—in particular, the earlier segment of the
video recording. Third, Martin’s witnesses gave written statements but were not
permitted to testify. (Martin does not renew this argument on appeal, so we say no
more about it.)
The district court denied Martin’s petition. The court deemed Foster’s conduct
“problematic” because the video does not match her account that she stepped onto the
range and spoke to Martin in response to his yelling; Meeks’s separate case note, which
repeats Foster’s story, was flawed for the same reason. But Meeks’s handwritten
statement (attached to Foster’s conduct report) states that, from her office, she heard
Martin yell a threat. The district court concluded that this statement was enough to
support Martin’s conviction for making a threat. Further, Martin did not explain how he
was prejudiced by the hearing officer viewing less of the video than he requested. The
court reasoned that, at best, the video recording would have shown more of the same
(that Foster did not interact with Martin). And if it supported Foster’s account, Martin
was worse off.
On appeal, Martin first argues that neither Foster nor Meeks can be credited
because the video contradicts their reports that Foster stepped onto the range to speak
with Martin and because Meeks provided evidence against him in retaliation for a
grievance he had previously filed against her. Second, Martin insists that the hearing
officer’s failure to review the first 12 minutes of the video recording prejudiced his
defense because it would have confirmed that he never interacted with Foster.
We review the denial of Martin’s § 2254 petition de novo. Scruggs v. Jordan,
485 F.3d 934, 938 (7th Cir. 2007). In Indiana, a prisoner has a liberty interest in his
No. 19‐2761 Page 4
earned good‐time credits, so the state must follow the appropriate procedures before
revoking these credits. Montgomery v. Anderson, 262 F.3d 641, 644–45 (7th Cir. 2001). In
the prison‐disciplinary context, due process requires, among other things, that a
conviction be supported by “some evidence.” Superintendent Mass. Corr. Inst., Walpole v.
Hill, 472 U.S. 445, 455 (1985); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000). This
standard requires no more than a “modicum of evidence.” Webb, 224 F.3d at 652(quoting Hill, 472 U.S. at 455). We ask “whether there is any evidence in the record that
could support the conclusion reached by the disciplinary board.” Id. (quoting Hill,
472 U.S. at 455–56). The evidence must be sufficiently reliable, Meeks v. McBride, 81 F.3d
717, 720 (7th Cir. 1996), but it need not “logically preclude[]” conclusions other than the
one the hearing officer reached. Hill, 472 U.S. at 457.
Under this standard, sufficient evidence supported the finding that Martin yelled
a threat, even though the video does not support Foster’s entire account. Foster
reported that she heard Meeks yell, “Wait until I get my hands on one of you punk ass
bitches,” and Meeks’s same‐day handwritten statement corroborates that report: She
said she heard the same remark from her office, off of the range. The two other
prisoners corroborated that Martin was yelling and upset; they simply denied that
Martin directed his remarks at Foster. But that is not relevant to the violation he was
charged with: communicating a threat against anyone. Martin himself did not deny
yelling (though he stated that he was calling for a specific officer to deliver his property
and that Foster was not there). Thus, even ignoring the contradicted portions of Foster’s
and Meeks’s accounts, there is at least “some evidence” of Martin’s guilt.
Martin argues, however, that the video discredits Meeks and Foster entirely, and
so the hearing officer could not rely on any evidence originating with them. But it was
up to the hearing officer to weigh the witnesses’ credibility—we do not reweigh the
evidence presented at the hearing. Webb, 224 F.3d at 652. Meeks’s uncontradicted
statement about what she heard was sufficiently reliable for the hearing officer to deem
credible. Meeks, 81 F.3d at 720.
Further, Martin’s assertion that Meeks provided evidence out of a retaliatory
motive is irrelevant to whether he received due process. Wolff v. McDonnell, 418 U.S.
539, 558 (1974); McKinney v. Meese, 831 F.2d 728, 733 (7th Cir. 1987). The due process
protections set forth in Wolff—advance written notice of violation, a written explanation
of the decision, the right to present witnesses and evidence, and a decision by an
impartial body—shield prisoners from arbitrary actions. McPherson v. McBride, 188 F.3d
784, 787 (7th Cir. 1999). Once those procedures are followed, our only function is to
No. 19‐2761 Page 5
determine if the disciplinary hearing officer’s decision was based on “some facts.” Id.(citation omitted). Here, as explained above, the decision had some factual basis. A
§ 2254 petition to recover lost good‐time credit is not the way to bring a claim that a
prison official retaliated against an inmate for the protected activity of filing a
grievance. See Gomez v. Randle, 680 F.3d 859, 866–67 (7th Cir. 2012) (prisoner’s retaliation
claim actionable under 42 U.S.C. § 1983).
Finally, Martin argues that he was prejudiced by the disciplinary hearing
officer’s failure to review the additional 12 minutes of video Martin requested. But he
does not explain how this evidence could have undermined or contradicted the
evidence supporting the finding that he yelled a threat. See Jones v. Cross, 637 F.3d 841,
848 (7th Cir. 2011). As the district court reasoned, the first 12 minutes of the video could
have shown nothing more helpful to him than the latter half: that Foster did not directly
interact with Martin. And if it did show that Foster approached him, he would have
been worse off. Either way, without sound, the additional portion of the video could
not prove that Martin was not yelling or did not make the alleged threat. Therefore,
Martin was not prejudiced by its absence.
AFFIRMED