Gary Lee Smith v. Wendy J. Roal

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 24, 2012 *
Decided October 25, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐3663
GARY LEE SMITH,
Petitioner‐Appellant,
v.
WENDY J. ROAL,
Respondent‐Appellee.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 11‐cv‐676‐DRH
David R. Herndon,
Chief Judge.
O R D E R
Gary Smith is serving 19 years in federal prison for producing and distributing child
pornography. In August 2004 he was disciplined for assaulting a guard, refusing to obey an
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. A PP. P.
34(a)(2)(C).

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No. 11‐3663 Page 2
order, and possessing contraband. Smith had pushed away a guard who tried to handcuff
him, though he said he acted in self‐defense. After the scuffle, prison staff searched Smith’s
cell and confiscated pictures allegedly depicting nudity and sexual activity. Smith was
sanctioned with the loss of good time. Having exhausted his administrative appeals, he
petitioned for a writ of habeas corpus, 28 U.S.C. § 2241, asking that his good time be
restored (he also sought the return of a manuscript confiscated with his pictures, but the
district court properly rejected that demand as beyond the scope of § 2241). The court
understood Smith to claim that he was disciplined without due process because (1) he
received the disciplinary reports more than 24 hours after the scuffle and search, and (2) the
hearing officers were not properly certified. The court dismissed the petition on
preliminary review for failure to state a claim. See RULES G OVERNING § 2254 CASES IN THE
U.S. D ISTRICT COURTS 1(b), 4. The court explained that the Due Process Clause does not
compel immediate disclosure of disciplinary reports or require that hearing officers be
anything other than impartial.
On appeal, Smith contends only that the district court failed to address his “claim of
actual innocence.” He maintains that he acted in self‐defense and possessed authorized
pictures. We understand him to mean that his right to due process was violated because the
hearing officers lacked sufficient evidence to find that he committed the charged
infractions. For purposes here we accept that Smith’s petition fairly can be read to include
that contention.
Prison discipline that results in forfeited good time must be supported by “some”
evidence to satisfy due process, but even a meager amount will suffice. Superintendent,
Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Scruggs v. Jordan, 485 F.3d 934, 941
(7th Cir. 2007). Smith’s own statements supply some evidence that he disobeyed and
assaulted the guard. He admits that he spun around and “removed” the hand gripping his
shoulder—a hand belonging to the guard who had just told Smith he was about to be
handcuffed. Smith could be disciplined for assault even if he did think he was acting in self‐
defense. Jones v. Cross, 637 F.3d 841, 847–48 (7th Cir. 2011); 28 C.F.R. § 541.3, table 1, code
224 (2011). Furthermore, inmates lack a constitutional right to assert self‐defense in
disciplinary proceedings. Scruggs, 485 F.3d at 938–39; Rowe v. DeBruyn, 17 F.3d 1047, 1052
(7th Cir. 1994).
With regard to the contraband images, Smith has failed to develop an argument on
appeal. He has not explained why the pictures found in his cell could not satisfy the
standard of some evidence. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
AFFIRMED.

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