Jason Perry v. Richard Brown ( 2021 )

NONPRECEDENTIAL DISPOSITION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 February 5, 2021 *
Decided March 31, 2021
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-1005
JASON SETH PERRY, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v. No. 1:18-cv-04054-TWP-DML
RICHARD BROWN, Tanya Walton Pratt,
Respondent-Appellee. Chief Judge.
ORDER
Indiana prisoner Jason Perry petitioned for a writ of habeas corpus under
42 U.S.C. § 2254 after a hearing officer found him guilty of throwing urine on a prison
guard, for which he lost 180 days of earned good-time credit and certain privileges.
Perry claimed that he was deprived of due process at the disciplinary hearing because,
among other reasons, he went before a biased decisionmaker and never had access to
*
We have agreed to decide the case without oral argument because the briefs and
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. 20-1005 Page 2
key evidence. The district court denied his petition, and because Perry fails to show his
rights were violated, we affirm.
At the time of the incident, Perry was housed at the New Castle Correctional
Facility. One morning, he received a cup of juice. Some time later, Perry threw the
contents of the cup at correctional Officer K. Martin as he walked by Perry’s cell. He
also may have spit liquid at Officer Martin. For his part, Officer Martin identified the
liquid as urine, not juice. And a video of Perry’s cell showed him throwing the juice out
of the cup at least an hour before the incident with Officer Martin.
Disciplinary proceedings followed and resulted in Perry being charged with
battery, which includes “plac[ing] any bodily fluid or bodily waste on another person.”
Perry received copies of the conduct report and notice of a disciplinary hearing. So too
did Perry receive a lay advocate to assist at the hearing. Perry further requested
testimony from several witnesses, who gave written statements instead of live
testimony due to a staffing shortage within the prison. Finally, Perry sought, but did not
receive, video of the dayroom on the morning of the incident.
Before the hearing, the disciplinary hearing officer watched a video of the
incident and made a report: “Video shows the offender in cell 215 throw a cup of
something on the Officer. It is inconclusive if he spit it as well. Camera does not record
sound.” In connection with another disciplinary charge, the hearing officer also viewed
the video of Perry emptying his cup of juice before the incident with Officer Martin.
In the end, the hearing officer found Perry guilty based on Officer Martin’s
report, the witness statements, and photos and video of the incident. Even more
specifically, the hearing officer found that the liquid Perry threw at Officer Martin could
not have been juice because of the earlier video footage showing Perry discarding the
juice.
Perry unsuccessfully appealed the disciplinary conviction to the New Castle
Warden and in turn the Indiana Department of Correction. He then filed a habeas
petition under 28 U.S.C. § 2254 challenging the disciplinary sanctions. The district court
rejected Perry’s contentions that he was wrongfully denied access to evidence, the
hearing officer was biased, and insufficient evidence supported the finding of
misconduct.
No. 20-1005 Page 3
On appeal, the State of Indiana (on behalf of Richard Brown, Warden of Wabash
Valley Correctional Facility, where Perry is now incarcerated) first contends that we
lack jurisdiction because Perry did not file a timely notice of appeal. We disagree.
A state prisoner must appeal from the denial of a habeas petition within 30 days
of the judgment. See FED. R. APP. P. 4(a)(1)(A); RULES GOVERNING SECTION 2254 CASES,
Rule 11(b) (“Federal Rule of Appellate Procedure 4(a) governs the time to appeal an
order entered under these rules.”). But the district court may extend the deadline for an
additional 30 days “upon a showing of excusable neglect.” 28 U.S.C. § 2107(c); FED. R.
APP. P. 4(a)(5)(A). The district court entered judgment on November 6, 2019, so—absent
a 30-day extension under Rule 4(a)(5)—Perry’s notice of appeal was due on December 6.
After the initial deadline passed (but within 30 days after it, see FED. R. APP.
P. 4(a)(5)(A)), Perry moved for an extension, briefly explaining that he was working on
several cases and had been denied certain research materials in the New Castle prison
library. The district court granted the motion, giving Perry until December 20, 2019.
This brief extension fell within the 30 days authorized by Rule 4(a)(5)(A), (C).
Perry missed the December 20 deadline but mailed the court a notice of appeal
on December 31, 2019. He accompanied the notice with a “Motion to File [a] Late Notice
of Appeal” in which he explained that, due to delays in prison mail, he had not received
the court’s order granting his prior extension request until after the new deadline of
December 20 had passed. The district court construed Perry’s notice of appeal and
accompanying motion as a motion to file instanter and granted it—effectively giving
Perry a second extension of time for filing his notice of appeal.
All of this was proper. Perry ultimately filed his notice of appeal before January 6
and thus within the time limit allowed by Rule 4(a)(5)(A), (C). On the record before the
district court, the warden’s argument that Perry provided insufficient reasons to
warrant the two extensions of time misses the mark.
As we recently explained in Mayle v. Illinois, the district court is the gatekeeper of
the excusable-neglect standard under § 2107(c). See 956 F.3d 966, 968 (7th Cir. 2020). The
court does not always need to make an explicit finding of excusable neglect; a summary
order suffices if the motion provides “an evident path from the record to the district
court’s discretionary decision.” Id. at 969. We review only for abuse of discretion. See id.The district court acted within the bounds of its discretion. Perry is a pro se
litigant juggling several cases, with limited access to research materials and limited
No. 20-1005 Page 4
knowledge of the law. Yes, he neglected to file a notice of appeal on time. But “[t]he
point of the excusable-neglect standard is that neglect is assumed,” and the district
court “has discretion to excuse it.” Id. at 968–69. In contending that Perry did not need
access to the law library to accomplish the ministerial task of filing a notice of appeal,
the state assumes a level of acumen that is not warranted. Perry said he asked the law
library for procedural rules; he may have wished to research the timing for filing a
notice of appeal or the required contents. (Often this information appears at the
conclusion of a final order disposing of a pro se case, but here it did not.) Sorting that out
would not have been a good use of the district court’s time.
Perry also took care to offer a reason for his second request for an extension of
time. He explained in his December 31 filing that, because of delays in receiving his
mail, he did not know about the December 20 deadline until after it had passed. The
district court committed no abuse of discretion in accepting this reason as part of
granting the second extension. See id. at 969.
We note, however, that the extensions would not have been justified if Perry had
not supplied valid reasons for needing them. That was the case in Nestorovic v.
Metropolitan Water Reclamation District of Greater Chicago, where the plaintiff missed the
deadline because she was not sure she could find a lawyer to take her appeal. See
926 F.3d 427, 429 (7th Cir. 2019). This was not a valid excuse, we held, because the
appellant intentionally waited to appeal until she retained counsel; nothing impeded
her. See id. at 432. Perry’s reasons, in contrast, were unintended delays due to the
conditions in his prison. In 28 U.S.C. § 2107(c), Congress gave district courts the
authority to excuse the latter, not to allow litigants to choose to ignore court deadlines.
So the extensions here were valid, and Perry’s notice of appeal was timely.
On the merits, Perry presses two due-process arguments. Indiana prisoners have
a liberty interest in earned credit time and must be afforded due process, including the
rights to present evidence in their defense and to an unbiased decisionmaker. See Wolff
v. McDonnell, 418 U.S. 539, 566 (1974); Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003).
First, Perry says that he was denied access to a videotape of the dayroom that
may have proved his innocence. The warden responds that the video did not show the
altercation (which did not take place in the dayroom) and therefore could not contradict
the video of Perry tossing the cup of liquid at Officer Martin. In disciplinary hearings,
prisoners have no right to “irrelevant or repetitive evidence.” Scruggs v. Jordan, 485 F.3d
934, 940 (7th Cir. 2007). Perry has never explained how the video could have helped his
defense. On these facts, he has not demonstrated any right to the video.
No. 20-1005 Page 5
Second, Perry says his hearing officer was biased, both because he had served as
a hearing officer for another disciplinary charge against Perry and because he came into
the hearing with personal knowledge of the case (having seen the relevant videos). We
rejected a similar argument in Pannell v. McBride, observing that prior knowledge of the
prisoner or the case does not amount to bias. See 306 F.3d 499, 502 (7th Cir. 2002). We
would reach a different result if the adjudicator had been directly involved in the
incident, see Piggie, 342 F.3d at 667, but Perry makes no such allegation.
AFFIRMED