Aaron Isby-Israel v. Alan Finnan, No. 09-1283 (7th Cir. 2009)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 8, 2009* Decided October 9, 2009 Before FRANK H. EASTERBROOK, Chief Judge RICHARD A. POSNER, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 09 1283 AARON ISBY ISRAEL, Petitioner Appellant, Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. v. No. 2:08 cv 098 RLY WGH ALAN FINNAN, Defendant Appellee. Richard L. Young, Judge. O R D E R Aaron Isby Israel, an Indiana prisoner, filed a petition under 28 U.S.C. § 2254 challenging the process afforded him at a disciplinary hearing. A Disciplinary Hearing * After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2). No. 09 1283 Page 2 Board found that Isby Israel had thrown his food tray across the prison range when a guard refused to serve him the tray of his choice. His punishment included a loss of 30 days good time credit and a suspended demotion in credit earning class. The district court denied Isby Israel s petition. Isby Israel argues that he was denied due process because the Board failed to apply a preponderance of the evidence standard and relied entirely on the guard s written accusation as evidence of his guilt. Indiana inmates have a protected liberty interest in their good time credits and credit earning class, see Montgomery v. Anderson, 262 F.3d 641, 644 45 (7th Cir. 2001), but due process requires only that there be some evidence of misconduct before those benefits can be taken away, Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007). This standard requires only a modicum of evidence sufficient to ensure that the disciplinary decision is not arbitrary. Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000). A guard s conduct report alone can satisfy this standard. Bandy Bey v. Crist, No. 08 2084, 2009 WL 2591275 at 2 (8th Cir. Aug. 25, 2009); Hudson v. Johnson, 242 F.3d 534, 536 37 (5th Cir. 2001); McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999). The report, written and signed by the guard who witnessed Isby Israel s tirade, gives the time of day and describes the incident. It is sufficient to support the Board s guilty finding. See McPherson, 188 F.3d at 786. Isby Israel also argues that the disciplinary rule he violated, Section B 236 of Indiana s Adult Disciplinary Procedures, is too general to give inmates fair notice of the conduct it prohibits. Section B 236 prohibits disorderly conduct: exhibiting disruptive and/or violent conduct which disrupts the security of the facility or other area in which the offender is located. The district court concluded that this language is not impermissibly vague and we agree. A regulation must be sufficiently definite to give people of ordinary intelligence notice of the conduct it prohibits, United States v. Turcotte, 405 F.3d 515, 531 (7th Cir. 2005), but a plaintiff who engaged in behavior unmistakably proscribed by a disputed regulation cannot mount a facial challenge, Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). The terms disruptive and violent in B 236 are reasonably clear, and an inmate of ordinary intelligence would know that throwing a food tray is an act sanctionable under B 236. Because his conduct falls well within the scope of the rule s plain language, Isby Israel s vagueness challenge fails. AFFIRMED.
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