Argued: May 23, 2014.
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:11-cv-0186-WTL-WGH -- William T. Lawrence, Judge.
For ERIC GRANDBERRY, Petitioner - Appellant: Mary Helen Wimberly, Attorney, HOGAN LOVELLS U.S. LLP, Washington, DC.
For BRIAN SMITH, Respondent - Appellee: Frances Barrow, Attorney, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN.
Before BAUER and EASTERBROOK, Circuit Judges, and ST. EVE, District Judge.[*]
Easterbrook, Circuit Judge.
While Eric Grandberry was the head inmate law clerk at Indiana's Putnamville Correctional Facility, he used computers to download legal materials for other prisoners. He also assisted the prison's employees. The prison's librarian asked him to obtain and fill out a petition to stop child support, and another member of the library's staff asked him to obtain and fill out forms that her daughter could use to apply for a divorce. Grandberry fulfilled these requests.
In April 2011 the prison sent the library's computers to the Indiana State Police Crime Lab for analysis. Data recovered from the hard drives showed what Grandberry had done. He was moved to solitary confinement and charged with administrative offense 207, " Possession of Electronic Device." This designates as an infraction the " [u]nauthorized alteration, use or possession of any electronic device ... . (This offense includes accessing computers, software, the Internet, a facility LAN, etc. or using such in a manner not authorized by the Department of Correction ... .)" A disciplinary officer revoked 30 days of his good-time credits.
Grandberry sought federal review under 28 U.S.C. § 2254. After the district court denied the petition, a panel of this court concluded that he did not need a certificate of appealability. Grandberry v. Keever, 735 F.3d 616 (7th Cir. 2013). Although every other court of appeals that has considered the subject would require a certificate in a case arising from the revocation of good-time credits, see Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (collecting authority), the panel declined Indiana's request to overrule Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000). The appeal was then briefed and argued on the merits.
Grandberry contends with some force that the prison did not use all constitutionally required procedures. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). He also contends that the charge against him is not supported by evidence--and as that argument, if accepted, would prevent the prison from holding a second hearing, we start there. We end there too, because the record does not contain evidence that Grandberry used the library's computers without authorization. Superintendent of Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), holds that the Constitution allows a state to revoke good-time credits only when " some evidence" supports the decision. That's not a high standard: the Court observed that it entails less than the " substantial evidence" standard commonly used in administrative law, and materially less than the " beyond a reasonable doubt" standard used in criminal proceedings. But there must be some evidence; here there is none.
True, Grandberry downloaded forms related to child support and divorce, even though these were outside his remit as assistant to prisoners who needed support with problems arising from their custody. But the offense of which he was accused entails the " unauthorized" use of a computer, including " accessing ... the Internet ... in a manner not authorized by the Department of Correction" . Indiana concedes that employees of the prison directed Grandberry to do exactly what he did. His conduct therefore was authorized.
That follows from the way the word " unauthorized" normally is used. Prisons are not normal places and may employ words in abnormal ways. Indiana does not do this with the word " unauthorized," however. One part of the prison system's thick pile of ...