Perotti v. Marberry

355 F. App'x 39
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 7, 2009
DocketNo. 09-1324
StatusPublished
Cited by84 cases

This text of 355 F. App'x 39 (Perotti v. Marberry) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perotti v. Marberry, 355 F. App'x 39 (7th Cir. 2009).

Opinion

ORDER

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 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 [41]*41loss 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 healing officer again concluded that Perot-ti 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 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, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Wolff v. McDonnell, 418 U.S. 539, 564, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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.

[42]*42Perotti 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, 94 S.Ct. 2963; 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,

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Bluebook (online)
355 F. App'x 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perotti-v-marberry-ca7-2009.