In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3392
T ORRANCE JONES,
Petitioner-Appellant,
v.
JAMES C ROSS, JR., W ARDEN,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 07-cv-00673—David R. Herndon, Chief Judge.
A RGUED F EBRUARY 9, 2011—D ECIDED A PRIL 19, 2011
Before E ASTERBROOK, Chief Judge, and F LAUM and
R IPPLE, Circuit Judges.
F LAUM, Circuit Judge. Torrance Jones, a federal prisoner,
admits to pushing prison guard Richard Loftus during
an altercation at the Federal Correctional Institution in
Miami, Florida in 2006. Jones was found guilty of assault
at his ensuing disciplinary hearing and was sanctioned
with the loss of 14 days of good time credit. After ex-
hausting his administrative appeals, Jones petitioned for
2 No. 10-3392
a writ of habeas corpus in federal court pursuant to 28
U.S.C. § 2241, claiming that he was denied due process
at the disciplinary hearing. The district court denied
the petition. We affirm.
I. Background
Jones is currently serving a 30-year sentence on federal
drug trafficking charges. On August 31, 2006, Correc-
tional Officer Richard Loftus escorted Jones to the
Special Housing Unit (“SHU”) at the Miami Federal
Correctional Institution. To reach the SHU, Loftus and
Jones needed to cross the open compound. Generally,
inmates are not handcuffed in an open compound so as
not to render them vulnerable to attack by other in-
mates. Nevertheless, Loftus ordered Jones to cuff up
while the two were in the open compound. Jones refused,
telling Loftus he would do so if the compound was
closed. Loftus physically attempted to handcuff Jones
twice, and twice Jones pulled away. Loftus then pushed
Jones up against the SHU grill. According to Jones,
Loftus pressed his forearm on Jones’s throat, pinning
him against the SHU grill. Jones pushed Loftus away.
Eventually, Loftus cuffed Jones. Counselor Jose Cabrera
witnessed the incident, which also was captured on
surveillance video. Following the incident, Jones com-
plained of tenderness at his lower throat and neck area
and received medical treatment.
Later on the 31st, Loftus filed an incident report,
citing Jones for assaulting another person in violation of
code 224, and refusing to obey an order in violation of
code 307. See 28 C.F.R. § 541.3. The Bureau of Prisons
No. 10-3392 3
(“BOP”) suspended its internal disciplinary process
while the FBI investigated the incident and the
United States Attorney’s Office determined whether to
criminally prosecute Jones. The U.S. Attorney decided
not to charge Jones on September 13, 2006. Jones received
a copy of the incident report that same day.
A Unit Disciplinary Committee (“UDC”) hearing re-
garding the incident was initiated on September 20, 2006.
The UDC’s report indicates that Jones requested no
witnesses at that time, but Jones maintains that he told
Counselor Roche (who conducted the UDC hearing) that
he had two witnesses. According to Jones, he knew only
the witnesses’ nicknames, and Roche promised to try
and identify the men. Jones heard nothing further
from Roche.
The UDC referred the case to Detention Hearing
Officer (“DHO”) Yida Posada. Jones’s DHO hearing
was convened and extended on three occasions in
October 2006. The DHO’s notes from one of those
occasions states “Tyrone Walker, witness no reply.” She
does not recall the meaning of that note.
The DHO hearing eventually was held on October 23,
2006. David Tosana served as Jones’s staff representa-
tive. Jones had a brief meeting with Tosana—his first
and only meeting with his representative—prior to the
hearing. At that time, Jones asked that Tosana view
the surveillance video of the incident. Jones also told
Tosana that he wanted an inmate, Irvin Green, to testify
at the DHO hearing. Jones contends that he told Tosana
that Green could provide the name of a second witness.
4 No. 10-3392
That individual has since been identified as Yves St.
Hilaire. However, Tosana does not remember Jones
mentioning another witness, and St. Hilaire did not
testify at the DHO hearing. The DHO’s report indicates
that Green was the only witness Jones requested. The
DHO’s notes from October 23 state: “Witness (Irvin Green)
the other name is incorrect”; she has no recollection
of what that note meant. Jones maintains that he would
have requested a third witness as well, an inmate named
Jorge Masvidal, had Masvidal not been released prior to
the DHO hearing, on September 20, 2006. Jones never
mentioned Masvidal to Tosana or the DHO.
After Jones and Tosana met, there was a several-
hour recess during which Tosana viewed the surveil-
lance video and prepared a memorandum for the DHO
describing its contents. Jones was not permitted to
watch the video. Tosana’s memorandum stated in
relevant part:
Counselor Jose Cabrera was standing in front of the
grill area when I observed Officer Richard Loftus
S.O.S. escorting inmate Torrence [sic] Jones (19267-
018) to Special Housing Unit. Inmate Jones and Officer
Loftus appeared to be struggling as they approached
the Grill area. It appeared as though Officer Loftus
was attempting to apply restraints on inmate Jones
and inmate Jones appeared to be resisting by walking
away from Officer Loftus and not placing his hands
behind him. . . . Officer Loftus attempted to pin
inmate Jones’ chest to the SHU grill and cuffing [sic]
him, but inmate Jones again resisted by pulling away
No. 10-3392 5
and turning around. Officer Loftus then pushed
inmate Jones in the chest and pinned him against the
grill area by placing his left forearm on inmate Jones’
neck (throat area). At that time inmate Jones placed
both hands on Officer Loftus’ chest and pushed
Officer Loftus away from him.
Tosana also interviewed Green. Jones agreed to have
Green’s testimony presented through a statement rather
than have Green testify in person. Therefore, Tosana pre-
pared a memorandum for the DHO describing Green’s
statements. Green did not testify about the August 31
incident. Rather, he stated that Loftus generally was
aggressive towards and disrespectful of inmates.
In addition to Tosana’s two memoranda, the DHO had
before her a statement from Cabrera, the eyewitness.
Cabrera stated, in relevant part, that he observed Jones
refuse Loftus’s order to cuff up “because the compound
was not closed and that was the rules.” He further stated
that Jones pulled away from Loftus twice when Loftus
tried to cuff him, and that Loftus then “placed the
inmate against the Special Housing grill. The inmate
spun around and placed both hands on officer Loftus.
The inmate push[ed] officer Loftus back hard.”
Also before the DHO was a description of the surveil-
lance video prepared by Bob Wenzler, a Special Investiga-
tive Lieutenant. That memo reads, in relevant part:
Richard Loftus, Senior Officer Specialist, attempted
to place hand restraints on inmate [Jones]. The video
further revealed, inmate Jones resisted officer Loftus’
attempt to place restraints on him by spinning away
6 No. 10-3392
from Loftus on two occasions. The third time officer
Loftus put inmate Jones against the Special Housing
Unit grill door. Inmate Jones then assaulted officer
Loftus by pushing him away which cause[d] officer
Loftus to almost lose his balance. Officer Loftus
then regained his balance[,] then restrained inmate
Jones and escorted him into the Special Housing Unit.
At the hearing, Jones gave his account of the incident,
stating that Loftus “kept on trying to cuff me up,” and that
Loftus “put his forearm against my windpipe with
force and I pushed him away.” Jones further stated that
he pushed Loftus in order to stop Loftus’s assault.
The DHO found Jones guilty of both violations. Her
report states that in reaching that conclusion she con-
sidered Cabrera’s statement, Wenzler’s memorandum,
and Tosana’s memorandum concerning the video. At
an evidentiary hearing held before Magistrate Judge
Philip M. Frazier on December 21, 2009, the DHO
testified that she also reviewed the inmate injury assess-
ment report, which described Jones’s injuries from the
incident, and that her failure to list it among the docu-
mentary evidence she considered was an oversight. In
her written opinion, the DHO also considered Jones’s
position that he was protecting himself against Loftus’s
assault, as well as his admission that he pushed Loftus.
She concluded that “the fact still remains that after re-
sisting to be restrained, [Jones] pushed a staff member
with force. This constitutes an act of aggression.” The
DHO sanctioned Jones with (among other things) the
loss of 14 days of good conduct time. Jones exhausted
internal appeals of that disciplinary decision.
No. 10-3392 7
On September 24, 2007, Jones filed a habeas peti-
tion challenging the constitutionality of his prison disci-
plinary proceeding. Jones filed a motion for summary
judgment on October 28, 2009. At the December 21,
2009 evidentiary hearing before the magistrate judge,
the DHO testified that she did not see photographs of
Jones’s injuries at the hearing. Jones testified that he
was unable to present photographs of his injuries to
the DHO because he never received them prior to the
hearing. He further stated that he was not given the
opportunity to review any of the documentary evidence,
including medical reports, prior to his hearing. Jones
also stated that he requested that the DHO review the
medical reports and consider the treatment he received
after the incident.
On February 23, 2010, Magistrate Judge Frazier issued
a Report and Recommendation concluding that Jones
had not been denied due process, and recommending
both the denial of Jones’s motion for summary judg-
ment and the entry of judgment against him. Jones
filed objections to the Report and Recommendation.
Chief District Judge Herndon reviewed and ulti-
mately overruled those objections, issuing an opinion
adopting the magistrate’s Report and Recommendation
on September 28, 2010. Jones timely appealed.
II. Discussion
We review de novo the district court’s denial of Jones’s
§ 2241 petition. Daniels v. Knight, 476 F.3d 426, 433 (7th
Cir. 2007).
8 No. 10-3392
Federal inmates must be afforded due process before
any of their good time credits—in which they have a
liberty interest—can be revoked. See Brooks-Bey v. Smith,
819 F.2d 178, 180 (7th Cir. 1987). In the context of a
prison disciplinary hearing, due process requires that
the prisoner receive (1) written notice of the claimed
violation at least 24 hours before hearing; (2) an oppor-
tunity to call witnesses and present documentary
evidence (when consistent with institutional safety) to
an impartial decision-maker; and (3) a written statement
by the fact-finder of the evidence relied on and the
reasons for the disciplinary action. See Scruggs v. Jordan,
485 F.3d 934, 939 (7th Cir. 2007); Wolff v. McDonnell, 418
U.S. 539 (1974). A disciplinary decision must also be
supported by “some evidence” to satisfy due process.
Scruggs, 485 F.3d at 941 (quoting Superintendent, Mass.
Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985)).
Jones raises numerous due process challenges to his
disciplinary hearing. Jones first contends that his due
process rights were violated because both his receipt of
the incident report and his disciplinary hearing occurred
outside the time frames set forth in the applicable BOP
regulations. Jones also argues that he was wrongfully
denied the opportunity to view the surveillance video,
review and present documentary evidence, and call
certain witnesses. Jones further objects to the DHO’s
failure to watch the surveillance video. According to
Jones, these multiple violations denied him the opportu-
nity to present his “actual innocence” defense—namely,
that he lacked the specific intent to injure Loftus, and
therefore cannot be found guilty of assault. As discussed
No. 10-3392 9
below, that argument contains a fundamental flaw that
dooms Jones’s appeal. Finally, Jones contends that he
was found guilty based on insufficient evidence.
We begin with Jones’s argument that delays in the
disciplinary process, which allegedly violated BOP reg-
ulations, constituted a deprivation of due process. BOP
regulations provide that “[s]taff shall give each inmate
charged with violating a Bureau rule a written copy
of the charge(s) against the inmate, ordinarily within 24
hours of the time staff became aware of the inmate’s
involvement in the incident.” 28 C.F.R. § 541.15(a). Here,
Jones did not receive a copy of the incident report
until 13 days after the incident. BOP regulations also
provide that an inmate’s “initial hearing before the
UDC, ordinarily [will be] held within three work days
from the time staff became aware of the inmate’s involve-
ment in the incident.” Id. § 541.15(b). That time frame
may be extended “for a good cause shown by the
inmate or staff and documented in the record of the
hearing.” Id. § 541.15(k). Furthermore, the regulations
allow prison staff to “suspend disciplinary proceedings
for a period not to exceed two calendar weeks while
informal resolution is undertaken and accomplished.” 28
C.F.R. § 541.11, table 2, n. Here, the UDC hearing was
held almost three weeks after the incident, and the DHO
hearing occurred nearly two months after the incident.
Jones argues that the prison violated § 541.15(a) and (b),
and that those violations deprived him of due process.
Jones’s delay argument is not based on his liberty
interest in his good time credits. As noted above, with
10 No. 10-3392
respect to timing, all that due process requires is that
prisoners be given written notice of alleged violations
at least 24 hours before a disciplinary hearing. Jones had
more than sufficient notice—he received the incident
report a week before his UDC hearing and over a
month before his DHO hearing. Rather, Jones argues
that he has a separate liberty interest in the time frames
set forth in § 541.15(a) and (b).
Before considering whether those regulations give rise
to a liberty interest, we note that whether Jones has
established a violation of the regulations is not clear.
Jones acknowledges that the reason for the initial delay
was the pending FBI investigation, which likely pro-
vides “good cause” for at least a portion of the delay
in holding the UDC hearing. Moreover, the regulations—
which address the timing of only notice to an inmate
and the UDC hearing, not the DHO hearing—appear to
be advisory, stating when events “ordinarily” should
occur. But even assuming there was a violation of BOP
regulations in this case, that violation did not infringe
Jones’s constitutionally-protected rights.
Noncompliance with § 541.15(a) and (b) amounts to a
due process violation only if those regulations create a
liberty interest. Prison regulations give rise to a liberty
interest only if they shield inmates from an “atypical
or significant hardship . . . in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995); see also Crowder v. True, 74 F.3d 812, 814 (7th Cir.
1996) (applying Sandin, which addressed state-created
liberty interests under the Fourteenth Amendment, in
No. 10-3392 11
the context of a Fifth Amendment claim involving
federal prison regulations). The delays at issue did not
impose an “atypical or significant hardship” on Jones
warranting due process protection.
Moreover, Jones suffered no prejudice as a result of the
delays, so any conceivable due process violation was
harmless. See Piggie v. Cotton , 344 F.3d 674, 678 (7th
Cir. 2003) (using harmless error analysis in review
of prison disciplinary board’s alleged denial of prisoner’s
right to call witness at disciplinary hearing). Jones argues
that the delays prejudiced him by preventing him
from calling Masvidal as a witness, as Masvidal was
released from prison on September 20, 2006, the day
of Jones’s UDC hearing. Jones claims that Masvidal
would have testified that Loftus pinned Jones against the
SHU grill by placing his forearm on Jones’s throat, and
that Jones had not assaulted Loftus. In short, Masvidal
would have corroborated Jones’s version of events.
But the DHO had other evidence corroberating that
version of events before her. Specifically, she considered
Jones’s statement that he pushed Loftus only to stop
him from cutting off Jones’s windpipe, as well as
Tosana’s memorandum, which confirmed that Loftus
pinned Jones against the grill area by placing his fore-
arm on Jones’s neck. Masvidal’s testimony merely
would have been cumulative of that evidence. Moreover,
the DHO credited Jones’s version of events—that he
only pushed Loftus to free his windpipe. Nevertheless,
she concluded that, regardless of Jones’s motive, he was
guilty of assault because he admittedly pushed a staff
12 No. 10-3392
member with force. In essence, the DHO found that
Jones’s admission that he pushed Loftus provided suffi-
cient evidence to support a finding of guilt on the
assault charge. Plainly, Masvidal’s testimony that Loftus
was the aggressor would not have changed the DHO’s
decision. Because Jones’s inability to present Masvidal’s
testimony did not prejudice him, any conceivable error
was harmless.
The same harmless error analysis applies to Jones’s
inability to call St. Hilaire as a witness. Jones contends
that, like Masvidal, St. Hilaire would have testified as
to his “actual innocence.” In other words, St. Hilaire
would have verified Jones’s version of events in which
he only pushed Loftus to free himself. As explained
above, that testimony would have done nothing to help
Jones’s defense, and therefore any error related to
St. Hilaire also was harmless.
We turn now to Jones’s contention that he was denied
due process because he was not permitted to view evi-
dence that he characterizes as exculpatory, including
the surveillance video, his medical reports, photographs
of his injuries, Counselor Cabrera’s report, Bob Wenzler’s
report, and Staff Representative Tosana’s memoranda.
The rule of Brady v. Maryland, 373 U.S. 83 (1963), requiring
that material exculpatory evidence be disclosed to
a criminal defendant, applies in the context of prison dis-
ciplinary proceedings. Piggie, 344 F.3d at 679. Conse-
quently, procedural due process required prison officials
to disclose all material exculpatory evidence to Jones.
Scruggs, 485 F.3d at 939. There is an exception, however,
No. 10-3392 13
to the disclosure of material, exculpatory evidence that
“would unduly threaten institutional concerns.” Id.
(citations omitted).
In this context, the purpose of the Brady rule is “to
insure that the disciplinary board considers all of the
evidence relevant to guilt or innocence and to enable
the prisoner to present his or her best defense.” Piggie,
344 F.3d at 678. Jones argues that his lack of access to
the evidence prevented him from presenting what he
calls his actual innocence defense. As noted above, ac-
cording to Jones, he is not guilty of assault because
he lacked the specific intent required for assault—the
intent to cause physical injury. But lack of specific intent
is not a valid defense to assault in the context of a
prison disciplinary action. Nor is self-defense, which
may better describe Jones’s defense.
Intent to do harm is an element of both criminal assault
and common law tortious assault. See 6A C.J.S. Assault
§ 81 (2011) (“intent to injure or to cause a reasonable
apprehension of bodily injury is an essential element of
[criminal] assault”); R ESTATEMENT (SECOND) OF T ORTS
§ 21 (1965) (liability for tortious assault requires intent “to
cause a harmful or offensive contact . . ., or an imminent
apprehension of such a contact”). However, Jones was
neither convicted of criminal assault, nor held civilly
liable for assaulting Loftus. Rather, he was found to have
violated section 224 of 28 C.F.R. § 541.3, the BOP’s pro-
hibition on inmates “assaulting any person.” Jones pre-
sents no argument that section 224 should be interpreted
to incorporate the common law definition of assault.
14 No. 10-3392
And an analysis of that section suggests that the BOP did
not intend such a reading of the regulation.
At common law, assault involved no physical contact
(only the threat of such contact), whereas battery did
require such contact. See United States v. Vallery, 437 F.3d
626, 631 (7th Cir. 2006). The BOP’s regulation defining
prohibited acts by inmates does not include a separate
prohibition on battery. Code section 224, which pro-
hibits assault, states that “a charge at this level is used
when less serious physical injury or contact has been
attempted or accomplished by an inmate.” The term
“assault,” as it is used in section 224, appears to incor-
porate the concepts of both common law battery and
assault. Because the section 224 is not coextensive with
common law assault, we see no reason to import an
intent requirement. Moreover, battery (which section
224 incorporates) does not require intent to injure, only
intent to make the offensive contact. See R ESTATEMENT
(SECOND) OF T ORTS § 13 cmt. c (1965) (liability for tortious
battery requires intent “to cause a harmful or offensive
contact,” and “it is immaterial that the actor is not
inspired by any personal hostility to the other, or a
desire to injure him”). Jones admittedly intended to
push Loftus. Therefore, even if we were inclined to
import common law principles to our interpretation of
the BOP regulations, Jones possessed the requisite intent.
Jones’s defense can also be viewed as one of self-de-
fense. But we have held that inmates do not have a con-
stitutional right to raise self-defense as a defense in the
context of prison disciplinary proceedings. See Scruggs,
No. 10-3392 15
485 F.3d at 938-39; Rowe v. DeBruyn, 17 F.3d 1047, 1049
(7th Cir. 1994). As such, the DHO was under no constitu-
tional obligation to allow Jones’s claim that he was
merely defending himself to serve as a complete defense
to the charge of assault. She was permitted, as she did, to
find Jones guilty based on his admission alone, regard-
less of motivation.
Because Jones’s claimed defense is not a valid one,
none of the evidence he says he should have been
provided can be characterized as exculpatory. Only
evidence that undermined or contradicted Jones’s ad-
mission that he pushed Loftus would be exculpatory,
and none of the evidence at issue does so. Jones was
entitled only to exculpatory evidence, and therefore
there was no due process violation. Moreover, because
the evidence was not exculpatory, it would not have
changed the outcome of the DHO hearing, and thus
Jones suffered no prejudice.
Jones’s claim with respect to the video fails for the
additional reason that prison officials are not required
to disclose evidence that would unduly threaten institu-
tional safety. We have held that an inmate is not entitled
to disclosure of an exculpatory surveillance video if
allowing the inmate to see the tape would entail a
security risk. Piggie, 344 F.3d at 679. In addition, we
have recognized that one “bona fide security justifica-
tion” for non-disclosure is that the video might allow
the inmate to “learn the location and capabilities of the
prison surveillance system, thus allowing him to avoid
detection in the future.” Id.; see also Johnson v. Finnan, 467
16 No. 10-3392
F.3d 693, 694 (7th Cir. 2006) (stating in dicta that “security
concerns may make it prudent to prevent inmates
from learning the capabilities of the video monitors”).
Here, respondent asserts that allowing Jones to view
the video would have provided him with the location
of the surveillance camera that captured the incident,
its field of view, and the image resolution, all of which
would give rise to safety risks. Respondent’s valid
concern justifies the DHO’s refusal to allow Jones to see
the video himself.
The fruitlessness of Jones’s actual innocence defense
also dooms his objection to the DHO’s refusal to view
the surveillance video. There is no dispute that the
video shows Jones pushing Loftus. Even if it also shows
Loftus using force on Jones first, that does not change
the fact that “physical injury or contact [was] attempted
or accomplished by” Jones in violation of section 224.
Finally, Jones asserts a sufficiency of the evidence
argument. The DHO’s decision need only be support by
“some evidence in the record.” Webb v. Anderson, 224
F.3d 649, 652 (7th Cir. 2000) (citation omitted). We
have characterized the “some evidence” standard as a
“meager threshold.” Scruggs, 485 F.3d at 941. Once that
threshold is crossed, we will not reverse. Id. Here, Jones’s
own admission provides sufficient evidence to uphold
the DHO’s decision. Because the DHO “was not re-
quired to accept that protecting [himself] was a de-
fense that could shield [Jones] from the [assault] charge,”
the evidence was sufficient to sustain the finding of
guilt. Id.
No. 10-3392 17
III. Conclusion
For the foregoing reasons, we A FFIRM THE denial of
the petition.
4-19-11