United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Herndon United States District Judge.
Keller (Petitioner), a federal inmate, filed a writ of habeas
corpus under 28 U.S.C. § 2241 (Doc. 1) to restore
good-conduct credit he lost after a disciplinary officer
found him guilty of fighting another inmate.
Facts and Procedural History
September 2011, Petitioner was charged with fighting another
inmate in violation of the Bureau of Prison's
disciplinary code. Keller v. Cross, 603 F. App'x
488, 489 (7th Cir. 2015). At the disciplinary hearing,
Petitioner denied fighting. Id. He contended he was
attacked but threw “no punches” at his assailant.
Id. Another inmate who witnessed the altercation
corroborated Petitioner's version of events. Id.
The hearing officer, however, gave more credit to two staff
members who testified they saw Petitioner “throwing
punches with closed fists.” Id. The hearing
officer noted Petitioner did not submit documentary evidence
and found him guilty of the charge. Id. Petitioner
received twenty-one days in segregation, a loss of fourteen
days of good-time credit, and a ninety-day loss of phone
appealed to the regional director, arguing the hearing
officer refused to view video and photos of the incident.
Id. According to Petitioner, the photos would prove
he did not fight back, because they showed his face was
injured, while the other inmate's face was not.
Id. The regional director did not address
Petitioner's argument and denied his appeal, concluding
the hearing officer's decision rested on sufficient
evidence. Id. at 489-90. Petitioner appealed the
denial to the central office, which also denied his appeal.
Id. at 490.
then filed a petition under § 2241 in this Court to
restore his good-conduct credit. Id. He argued
substantial evidence did not support the finding of guilt and
that the hearing officer did not review the photos or
surveillance video. Id. This Court dismissed the
petition on preliminary review, concluding it was meritless.
Id. Petitioner appealed to the Seventh Circuit.
appeal, the Seventh Circuit affirmed the dismissal of all but
one of Petitioner's arguments. Id. at 491. They
remanded Petitioner's case for this Court to determine:
(1) whether Petitioner timely requested a review of the
potentially exculpatory photos and, if so, (2) whether the
hearing officer ignored the request. Id. at 490.
Supreme Court has held that procedural due process extends to
inmates during disciplinary proceedings. Wolff v.
McDonnell, 418 U.S. 539, 563 (1974). At a minimum,
inmates must receive “advance written notice of the
claimed violation and a written statement of the factfinders
as to the evidence relied upon and the reasons for the
disciplinary action taken.” Id. In addition,
inmates “should be allowed to call witnesses and
present documentary evidence in [their] defense” when
it would not be “unduly hazardous to institutional
safety or correctional goals.” Id. at 566. The
Seventh Circuit has expounded that disciplinary officers
“may not arbitrarily refuse to consider exculpatory
evidence simply because other evidence in the record suggests
guilt.” Whitford v. Boglino, 63 F.3d 527, 536
(7th Cir. 1995). However, “inmates must request the
evidence before or at the hearing, since due process does not
require hearing officers to consider evidence that could have
been but was not presented at the hearing.” Keller
v. Cross, 603 F. App'x 488, 490 (7th Cir. 2015).
remand, Respondent refutes that Petitioner requested the
photos at his disciplinary hearing. Respondent, nonetheless,
asserts the hearing officer viewed the photos as part of the
incident report. (Doc. 24, pp. 4-5).
set forth an affidavit from James Pfeifer, the officer who
conducted Petitioner's disciplinary hearing. (Doc. 24,
Ex. 1). Mr. Pfeifer attested that he reviewed the incident
report before reaching his decision, which includes
photographs of both inmates involved in the fight. (Doc. 24,
Ex. 1, p. 2). Respondent attached the entire re-written
incident report, which contains photographs of Petitioner and
his alleged assailant. (Doc. 24, Ex 2, pp. 11-34). The
photographs are located at pages 15-17.
response, Petitioner maintains he requested the photographs
at his hearing. He further argues the photographs in the
report “are so darkened” that the Court cannot
confirm Petitioner injuries or the alleged aggressor's
unscathed face. (Doc. 28, pp. 10-11). Petitioner also asserts
the original incident report did not include the photographs,
but Mr. Pfeifer manipulated and fraudulently altered the
incident report to included references to the photographs for
this review. Id. at 15-16.
allegations against Mr. Pfeifer are entirely baseless. The
record indicates the photographs of Petitioner and his
supposed attacker were included in the re-written report Mr.
Pfeifer reviewed in determining Petitioner's guilt at the
disciplinary hearing. See Doc. 24, Ex. 2, pp. 11-34.
Additionally, Petitioner received the incident report prior
to his hearing (Doc. 1, p. 7) but did not object to the
quality of the photographs until he filed his reply to
Respondent's response to his § 2241 petition (Doc.
28). Finally, the “Discipline Hearing Officer
Report” that summarizes the hearing suggests Petitioner
did not request a review of the photographs at the hearing.
The report provides, “Documentary Evidence: The inmate
did not submit documentary evidence.” (Doc. 24, Ex. 2,
totality of the evidence weighs against Petitioner; it shows
the hearing officer considered the photographs at the
disciplinary hearing and, furthermore, Petitioner did not
object to the quality of the ...