NONPRECEDENTIAL DISPOSITION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 November 5, 2009*
Decided December 7, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐1324
JOHN W. PEROTTI, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Indiana,
Terre Haute Division.
v.
No. 2:08‐cv‐305‐RLY‐WGH
HELEN J. MARBERRY,
Respondent‐Appellee. Richard L. Young,
Chief Judge.
O R D E R
Federal prisoner John Perotti lost a total of 80 days’ good time after prison
authorities concluded that he fought with another inmate and, in a separate incident, swore
at a staff member. He petitioned for a writ of habeas corpus, see 28 U.S.C. § 2241,
challenging both disciplinary decisions, and the district court dismissed the petition. We
affirm the judgment.
The first incident occurred in November 2007. Perotti received an incident report
*
After examining 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. 09‐1324 Page 2
charging him with fighting and possessing a weapon. See 28 C.F.R. § 541.13, tbl. 3, Codes
201, 104. The guard who drafted the incident report was not an eyewitness to the
altercation, but a surveillance camera captured on tape the confrontation between Perotti
and the other inmate. The footage, according to the guard’s report, shows the other inmate
start the fight by swinging a broomstick at Perotti, who responded with a punch to the face.
According to the guard, Perotti then gained control of the broomstick, tossed it over a
railing to the floor below, and, after a brief retreat to his cell, chased his antagonist with a
shank (a homemade knife) in each hand. When Perotti turned his back momentarily, the
other man threw a trash can at him. Another chase ensued, and, according to the reporting
guard, Perotti managed to dispose of the shanks in a shower stall just before staff broke up
the fight. Perotti suffered bruises, a fracture to his left arm, and lacerations requiring stitches
above each eye.
The following month Perotti appeared before a disciplinary hearing officer, who
concluded that Perotti had committed the charged acts and sanctioned him with the loss of
27 days of good time for fighting and another 40 days for possessing a weapon. Although a
staff member had been appointed to represent Perotti at the hearing, the employee did not
meet with him or help him procure witnesses. And neither Perotti nor the representative
was permitted to review the surveillance footage. Perotti pointed out these alleged
deficiencies in an administrative appeal, and a rehearing was ordered.
At the rehearing in March 2008, Perotti insisted that he acted in self‐defense and that
the alleged shanks were actually rolled‐up magazines. This time his staff representative (a
different employee than before) was allowed to watch the surveillance footage, though
Perotti was not. By the time of the rehearing, however, the three witnesses Perotti had
hoped to call had been released to halfway houses. Perotti complains that his representative
would not contact them for him and that prison administrators refused to produce them for
the hearing or give him their full names and addresses so that he could obtain written
statements from them. The hearing officer again concluded that Perotti had committed the
alleged violations. The officer noted in his decision that he had watched the surveillance
footage and observed Perotti holding in his right hand a sharpened object roughly seven
inches long while trying to stab the other inmate in the face and torso. The hearing officer
again revoked a total of 67 days of good time.
In the meantime, Perotti had been charged in February 2008 with insolence after
allegedly swearing at a counselor. See 28 C.F.R. § 541.13, tbl. 3, Code 312. A different
hearing officer conducted the proceedings on that infraction immediately after the rehearing
on the charges of fighting and possession of a weapon. Perotti’s staff representative for the
fighting and weapons charges did not realize that she was also assigned to represent him
on the insolence charge. She thus had not prepared for the latter hearing, but the hearing
No. 09‐1324 Page 3
officer refused to postpone the proceeding. The hearing officer also refused Perotti’s request
that he recuse himself because his wife, another prison employee, had previously reported
Perotti for insolence, a charge which Perotti says was dismissed “as being without
foundation.” The hearing officer found Perotti guilty and revoked an additional 13 days of
good time.
We review de novo the district court’s denial of Perotti’s § 2241 petition. See Parsons v.
Pitzer, 149 F.3d 734, 736 (7th Cir. 1998). Federal inmates have a liberty interest in their
earned good time, and Perotti thus was entitled to due process before any time could be
revoked. See Brooks‐Bey v. Smith, 819 F.2d 178, 180 (7th Cir. 1987). Due process in this
context requires that the prisoner receive advance written notice of the charges, an
opportunity to present evidence to an impartial decisionmaker, and a written explanation
for the discipline that is supported by “some evidence.” Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 455 (1985); Wolff v. McDonnell, 418 U.S. 539, 564, 566 (1974).
Focusing first on the fighting/weapons charges, Perotti argues that he was denied
due process because he could not make use of the surveillance footage nor could he contact
the three witnesses in the halfway houses. Although his staff representative watched the
videotape, Perotti asserts that she was not allowed to discuss the footage at the hearing and
he was not allowed to question her about it. The missing inmates, he says, would have
corroborated his claim of self‐defense.
Perotti is mistaken, however, about the extent of his right to have direct access to
evidence. A prisoner’s access to specific evidence or witnesses may be restricted if it would
be “unduly hazardous to institutional safety or correctional goals,” Wolff, 418 U.S. at 566;
Piggie v. McBride, 277 F.3d 922, 924 (7th Cir. 2002), or when the evidence or testimony would
be irrelevant or repetitive, Scruggs v. Jordan, 485 F.3d 934, 939‐40 (7th Cir. 2007); Pannell v.
McBride, 306 F.3d 499, 503 (7th Cir. 2002). The evidence that Perotti wanted would not have
helped his claim of self‐defense. No one disputes that the other inmate started the fight by
swinging a broomstick at Perotti. And Perotti has never denied that he chased his
antagonist after knocking the broomstick out of reach; he did not try instead to alert a guard
or to defuse the situation in some other way. The hearing officer observed the entire
sequence of events as captured in the footage and concluded that, no matter who started the
fight, Perotti’s subsequent actions were not entirely defensive. Moreover, even if Perotti had
acted only in self‐defense, the hearing officer still would have been within his discretion to
sanction Perotti for fighting because there is no constitutional right to self‐defense in a
prison setting. See Scruggs, 485 F.3d at 938‐39; Rowe v. DeBruyn, 17 F.3d 1047, 1052‐53 (7th
Cir. 1994).
Perotti’s challenges to the loss of good time on the charge of possessing a weapon are
also unavailing. He has presented a simple credibility question: was the hearing officer
No. 09‐1324 Page 4
compelled to find, as Perotti insisted, that Perotti held only rolled‐up magazines, or was the
hearing officer entitled to believe what he saw in the surveillance video, which depicted
Perotti chasing his antagonist while trying to stab him with what appeared to be a sharp,
seven‐inch object. A hearing officer may resolve competing stories so long as some evidence
supports the decision, Johnson v. Finnan, 467 F.3d 693, 695 (7th Cir. 2006), and this footage
was more than enough to support the conclusion that Perotti possessed a weapon.
Perotti thinks that the hearing officer might have decided the question differently if
Perotti had been allowed to make greater use of the video, but he has never explained how
this is so, especially given the fact that the hearing officer personally viewed the videotape.
We cannot see how permitting Perotti to question his staff representative about the same
video would have changed anything. See White v. Ind. Parole Bd., 266 F.3d 759, 768 (7th Cir.
2001).
Next, although Perotti alleges in his § 2241 petition that the three halfway‐house
witnesses would have testified that Perotti “did not have two knives during the altercation,”
that was not his contention during the administrative proceedings. Until he filed his
petition, his position was that the witnesses would testify that he acted in self‐defense. We
are troubled by the government’s contention that witnesses in BOP custody need not be
made available, either for live testimony or to produce written statements, simply because
they have been assigned to halfway houses. See 28 C.F.R. § 541.17(c) (instructing that
hearing officer should call witnesses who are “reasonably available,” including those from
outside institution, and request written statements from unavailable witnesses with relevant
information); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 762 n.9 (3d Cir. 1996)
(resolving case on other grounds but expressing discomfort with government’s
characterization of witnesses transferred to other facilities as categorically “unavailable”);
Forbes v. Trigg, 976 F.2d 308, 317 (7th Cir. 1992) (explaining that rules categorically barring
certain classes of witnesses are unconstitutional). But the extent of the government’s
responsibility in that respect is not important here. Perotti may not recharacterize the nature
of the proposed witnesses’ testimony to bolster his § 2241 petition, and so we need not
address the issue.
That leaves Perotti’s challenges to the disciplinary hearing on the insolence charge.
The district court did not address Perotti’s specific arguments about that hearing. The
government invites us to remand this portion of the § 2241 petition, but we see no need for a
remand, since the record is developed enough to permit review now. See Books v. Chater, 91
F.3d 972, 978 (7th Cir. 1996) (explaining that, if correct resolution of appeal is clear, remand
needlessly prolongs case without contributing to correct outcome); DiLeo v. Ernst & Young,
901 F.2d 624, 626 (7th Cir. 1990) (same).
No. 09‐1324 Page 5
Perotti’s primary challenge to the insolence proceeding is his allegation that the
hearing officer was biased against him. The reason, Perotti contends, is that the officer’s
wife, another prison employee, had previously filed an insolence charge against Perotti that
was dismissed as unfounded. (Perotti further asserted in his § 2241 petition that the officer’s
wife had been “reprimanded” for filing a false disciplinary charge, but he did not make that
allegation in his administrative appeal and has abandoned that characterization before this
court.) An inmate facing disciplinary charges has the right to an impartial decisionmaker.
Wolff, 418 U.S. at 571. But “the constitutional standard for impermissible bias is high,” Piggie
v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003), and an adjudicator is entitled to a presumption of
“honesty and integrity” absent clear evidence to the contrary, see Withrow v. Larkin, 421 U.S.
35, 47 (1975). Due process requires disqualification of a decisionmaker who was directly or
substantially involved in the underlying incident, Gaither, 236 F.3d at 820, and we have
assumed that a decisionmaker might likewise be impermissibly biased if his spouse is a
crucial witness in the proceeding, see Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002). A
hearing officer is not automatically deemed biased, however, simply because he adjudicated
or was involved in a previous disciplinary charge against the prisoner. See Piggie, 342 F.3d
at 666‐67; Pannell, 306 F.3d at 502. And if his own involvement in a prison disciplinary
matter would not have disqualified the hearing officer, neither would his wife’s.
Perotti also asserts that he was denied effective assistance of his staff advocate
because she was unable to prepare properly for the insolence hearing. A BOP regulation, 28
C.F.R. § 541.17(b), provides that a hearing officer “shall afford a staff representative
adequate time to speak with the inmate and interview requested witnesses where
appropriate.” But the regulation gives the hearing officer discretion to determine when
advance investigation by a staff representative is necessary, and there is no evidence that
the officer’s decision to proceed with Perotti’s hearing in the absence of such investigation
was improper. Perotti has not alleged, for example, that he was prevented from gathering
evidence on his own prior to the hearing, nor has he identified any specific witnesses he
would have liked the staff representative to consult or explained what they would have
said.
Finally, we note that Perotti alleged in his petition that he never received a written
decision disposing of the insolence charge, and we do not see any such document in the
record. Wolff requires the prison authorities to give such a statement to the prisoner. 418
U.S. at 564‐65. Perotti has not pressed this issue on appeal, however, and thus we have no
need to decide whether the apparent absence of the statement of reasons has any effect on
Perotti’s case.
AFFIRMED.