Bogdan Nicolescu v. DAVE BOBBY, Warden

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 4, 2023*
Decided October 11, 2023
Before
DIANE S. SYKES, Chief Judge
DIANE P. WOOD, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-3253
BOGDAN NICOLESCU,
Petitioner-Appellant,
v.
DAVE BOBBY, Warden,
Respondent-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:21-cv-00441-JRS-MJD
James R. Sweeney II,
Judge.
O R D E R
Bogdan Nicolescu, a federal prisoner, lost 27 days’ good-time credit after a
disciplinary-hearing officer determined that, while speaking in Romanian to his mother
on the phone, he threatened a prison guard. He petitioned for a writ of habeas corpus
under 28 U.S.C. § 2241, contending that he lost the good-time credit without the
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 5 --

No. 22-3253 Page 2
required due process. The district judge concluded that Nicolescu was notified of the
charges, had the opportunity to review the evidence against him, and was permitted to
present witnesses. Because those procedures comport with due-process, we affirm.
In November 2020, while at the federal penitentiary in Marion, Illinois, Nicolescu
called his mother, whom he frequently called and emailed. He spoke with her for
15 minutes in Romanian, their native language, and an interpreter later translated the
recorded phone call into English. During the call, Nicolescu briefly mentioned a prison
guard who was standing nearby and who had issued Nicolescu an incident report.
According to the translation, Nicolescu said: “[T]hat idiot got me a restriction at the
store for 2 weeks. But it doesn’t matter, I’ll attack him anyways. I piss on him.”
(Emphasis added.)
Nicolescu later received an incident report alleging that he violated prison policy
when, during the call, he threatened another with bodily harm. A partial transcript of
the translated conversation was attached to the report. The report also notified him of
the date for his hearing. See 28 C.F.R. § 541.3 tbl. 1, Offense 203. Nicolescu denied the
allegations, insisted that the translation should have said “I’ll attack it anyways,” not
“I’ll attack him anyways.” He contended that no Romanian speaker would construe his
statements as threatening. Two days before the hearing, Nicolescu urged his staff
representative to ask the interpreter to correct the translation, but the representative did
not do so. He then asked to contact the interpreter directly, but several other prison
officers refused that request. Nonetheless, ten minutes before the hearing Nicolescu
received and reviewed a full transcript of the call. With the transcript in hand, in
response to an inquiry by the hearing officer, he stated that he did not seek to present
other documents or witnesses. Only portions of the transcript were used at the hearing.
Nicolescu testified at the hearing. He defended his comments by explaining that
they had a nonliteral meaning in Romanian. For example, he argued that the phrase “I
piss on him” in Romanian is properly rendered as “screw him” in English. Moreover,
he contended, the present tense “I piss” is not a threat because it does not suggest
future harm; some other verb tense, such as the future “I will piss,” is necessary to
convey a threat. He reiterated that the word “him” in the transcript should have been
translated as “it.” So corrected, he concluded, the transcript showed only that he
planned to attack the disciplinary report through the approved mechanisms, not to
assault the prison guard physically.
The hearing officer was unpersuaded by Nicolescu’s testimony and found him
guilty of threatening the guard. The officer wrote that he considered the transcript, an
email Nicolescu sent to his mother, and the arguments Nicolescu and his staff

-- 2 of 5 --

No. 22-3253 Page 3
representative raised at the hearing. The disciplinary officer ticked a box stating that
Nicolescu waived his right to call other witnesses.
Nicolescu next unsuccessfully petitioned for a writ of habeas corpus in federal
district court. He argued that the prison denied him due process by (1) refusing to grant
him adequate access to the call transcript and witnesses, (2) presenting insufficient
evidence of a threat (because, he insisted, his remarks were exculpatory), and (3) issuing
the charge for retaliatory reasons. In denying the petition, the judge first pointed out
that Nicolescu did receive the full transcript of the phone call. As for witnesses, the
court noted that Nicolescu waived that right in response to a direct question at the
hearing. He was thus not denied the opportunity to call witnesses or present
exculpatory evidence. The transcript of the call, the judge ruled, provided enough
evidence of Nicolescu’s guilt. Finally, the judge explained that Nicolescu is not entitled
to habeas corpus relief based on an alleged retaliatory motive for the charge, because it
was based on the translated phone call and the hearing procedures were adequate.
On appeal, Nicolescu continues to argue that he was denied due process at the
hearing. A disciplinary hearing comports with due process when the prisoner receives
notice of the hearing and the charges; the opportunity to present witnesses and
evidence at the hearing (consistent with prison security); and a written statement of the
evidence the decisionmaker relied on. Wolff v. McDonnell, 418 U.S. 539, 563 (1974).
Substantively, “some evidence” must support the decision. Superintendent v. Hill,
472 U.S. 445, 454 (1985).
Nicolescu received this process. He concedes that he received a written notice of
the alleged infraction. Regarding the opportunity to present witnesses and evidence, he
was allowed to testify on his own behalf, and he waived his right to call other witnesses
or present other evidence. We recognize that, at one point, Nicolescu asked that his staff
representative contact the original translator, but the representative’s failure to do so on
Nicolescu’s behalf did not violate his due process rights. See Miller v. Duckworth,
963 F.2d 1002, 1004 (7th Cir. 1992) (stating that prisoners have no general right to a lay
advocate’s services in disciplinary proceedings). Furthermore, Nicolescu has furnished
no evidence that the hearing officer refused to let him call the translator (or any other
witness) in his defense. We accept as true that Nicolescu was told by several prison
officers prior to the hearing that he could not contact the translator. That fact, however,
does not change our assessment. It is one thing for a prisoner informally to ask guards
or others for access to someone outside the hearing context; it is quite another for the
prisoner to request the officer presiding over a disciplinary hearing to call a witness on
his behalf. Considerations of security and orderly procedure might well cause prison

-- 3 of 5 --

No. 22-3253 Page 4
officials to reject informal requests, but at the same time to permit a hearing officer to
grant access to necessary witnesses. That is what happened here. Even though we
assume that Nicolescu felt discouraged when his earlier efforts to obtain access to the
translator failed, that does not excuse his unilateral decision to tell the hearing officer
that he did not wish to call any witnesses. The latter statement operated as a waiver of
his right to call the translator as a witness, and he offers no reason on appeal for us to
find this waiver invalid. Thus, the prison did not violate Nicolescu’s due-process rights
at the disciplinary hearing. See Ponte v. Real, 471 U.S. 491, 499 (1985).
Nicolescu offers a few more arguments, but none persuades us. First, he
contends that he was denied an adequate opportunity to review the full transcript of the
phone call, which he considers exculpatory, because he did not receive it until ten
minutes before the hearing. But due process does not mandate a specific time to review
evidence. See Superintendent, 472 U.S. at 454. In any case, nothing prevented Nicolescu
from asking for more time to review the transcript, nor does he explain how more time
to review it would have enhanced his defense.
He next argues that the hearing officer’s report was constitutionally deficient in
two ways: the explanation of the hearing officer’s decision was too terse; and the
conclusion was not supported by the evidence. Our own review satisfies us that the
officer said enough. He set forth the evidence on which he relied, and he explained why
he found transcribed translation more persuasive than Nicolescu’s defense. No more
was required. See id. Nicolescu also argues the hearing officer was biased because he
ruled against Nicolescu, but that reason alone is not enough to show partiality.
See Prude v. Meli, 76 F.4th 648, 657–58 (7th Cir. 2023).
Sufficiency of the evidence arguments are hard to sustain in the prison-
disciplinary context, and this case is no exception. The transcript offers “some evidence”
that Nicolescu threatened a guard, while he was speaking in Romanian and perhaps
thinking (erroneously) that prison officials would not understand him. Nothing more is
required. See Superintendent, 472 U.S. at 454. Indeed, Nicolescu admits that the
transcript is correct as a literal matter. He relies on the more nuanced argument that no
Romanian speaker would interpret his words as a threat. This dispute over the proper
interpretation does not render the fact-finding in this case arbitrary. Because some
evidence supports the disciplinary officer’s decision, it may stand. See id.
Finally, Nicolescu argues that his loss of good-time credit was an unlawful
penalty for exercising his right under the First Amendment to speak freely with his
mother. The short answer to this is that First Amendment rights may be curtailed in
prison, when the restriction is rationally related to prison security. See Turner v. Safley,

-- 4 of 5 --

No. 22-3253 Page 5
482 U.S. 78, 89 (1987); Kervin v. Barnes, 787 F.3d 833, 835 (7th Cir. 2015) (prisons may
curb abusive or insolent speech). That is the case here.
For these reasons, we AFFIRM the judgment of the district court.

-- 5 of 5 --