United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 24, 2012*

Decided January 31, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD D. CUDAHY, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 12‐1795

JERMAINE UPSHAW,

Petitioner–Appellant,

v.

RICHARD BROWN,   

Respondent–Appellee.

Appeal from the United States District

Court for the Southern District of Indiana,

Terre Haute Division.

No. 2:11‐cv‐276‐WTL‐DKL

William T. Lawrence,

Judge.

O R D E R

Jermaine Upshaw, an Indiana prisoner, was attacked by a fellow inmate in a

dayroom of their prison. One of the guards trying to separate the inmates was spit on; she

accused Upshaw of spitting on her, but he said it was the other inmate who did so. Upshaw

received a conduct report for the incident, charging him with assault. Before the hearing on

the charge, he requested the video from the dayroom security system and also asked the

Conduct Adjustment Board to review that video. Upshaw claimed that the video would

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

*

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)(C).
No. 12‐1795 Page 2

reveal that during the fight in the dayroom, the other inmate, Derek Brown, had spit at him

from across the room and hit the guard instead, while she stood between him and the

dayroom television.

At Upshaw’s disciplinary hearing, the Board denied his request to see the video,

citing security as its justification. A member of the Board viewed the video, however, and

provided the following summary of the evidence: “Video does show Sgt. Poole [the victim

guard] standing on your left side by the dayroom TV. I can not tell if offender Brown’s

actions were due to his back was toward the camera. The video does show offender Brown

being placed into restraints by the microwave table.” The Board found Upshaw guilty based

on reports from the dayroom guards and the written statements of Upshaw and Brown, the

other inmate.  Brown acknowledged walking into the dayroom and hitting Upshaw from

behind but did not say whether or not he spit at him. The Board revoked 180 days of

Upshaw’s earned credit time and adjusted his credit‐earning class accordingly.

Upshaw submitted an administrative appeal to the warden challenging only the

Board’s handling of the video evidence. The Board had not looked at the video from “[all]

the angles,” Upshaw contended, and he questioned why the Board member who reviewed

the video had looked at the images from a camera facing him and not from a second camera

mounted above him that faced Brown. The warden denied this appeal. Upshaw’s appeal to

the final reviewing authority also was rejected.

Upshaw then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He

claimed that the Board had impeded his right to present evidence by not watching the video

from “all angles” or letting him watch the video himself. He also contended that the Board

had lacked sufficient evidence to find him guilty. The district court denied Upshaw’s

petition, explaining that the video had been taken from a “fixed angle” and showed only the

other inmate’s back, and thus was unhelpful to Upshaw. The court also found that the

minimum requirement of “some evidence” of guilt was met in Upshaw’s case by the

guards’ reports and the video, which the hearing officer had viewed and summarized.

On appeal Upshaw presses his claim that the Board’s refusal to let him see the video

infringed his right to present evidence. He also asserts that the Board failed to establish a

valid security justification for denying him access to the video, but this latter contention was

not presented to the district court and thus is waived. See Johnson v. Hulett, 574 F.3d 428, 432

(7th Cir. 2009); Pole v. Randolph, 570 F.3d 922, 939–40 (7th Cir. 2009). Upshaw has abandoned

his claim about the sufficiency of the evidence.
No. 12‐1795 Page 3

Before a disciplinary board revokes an inmate’s earned credit time or lowers his

credit‐earning class, the inmate must receive due process, which includes advance written

notice of the charge, an opportunity to present testimony and other evidence at a hearing

before an impartial decision‐maker, and a written explanation for the decision that is

supported by “some evidence.” Wolff v. McDonnell, 418 U.S. 539, 564–66 (1974); Piggie v.

Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Pannell v. McBride, 306 F.3d 499, 502 (7th Cir. 2002).

Prison administrators must disclose material, exculpatory evidence—including surveillance

videos—to ensure that the accused inmate can present his best defense and that the

decision‐maker considers all relevant evidence. Jones v. Cross, 637 F.3d 841, 847 (7th Cir.

2011); Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007); Piggie, 344 F.3d at 678. Disclosure

may be limited, however, if prison administrators establish a bona fide security justification

for refusing the inmate access to the evidence—for instance, the inmate might learn the

location or capabilities of the camera, jeopardizing prison safety. See Jones, 637 F.3d at

848–49; Piggie, 344 F.3d at 679.

Based on this exception to disclosure, Upshaw is not entitled to relief under § 2254. A

member of the Board viewed the video and provided Upshaw a written summary of what it

showed, but the Board concluded that security considerations justified refusing Upshaw

personal access to the video. It is too late now, as we have noted, for Upshaw to raise a

challenge to the validity of the security justification. The Board’s refusal to disclose this

evidence, even if it conceivably was exculpatory, did not violate Upshaw’s right to due

process. See Jones, 637 F.3d at 848–49; Piggie, 344 F.3d at 679.

AFFIRMED.