In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3392

TORRANCE JONES,

Petitioner-Appellant,

v.

JAMES CROSS, JR., WARDEN,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 07-cv-00673—David R. Herndon, Chief Judge.

ARGUED FEBRUARY 9, 2011—DECIDED APRIL 19, 2011

Before EASTERBROOK, Chief Judge, and FLAUM and

RIPPLE, Circuit Judges.

FLAUM, Circuit Judge. Torrance Jones, a federal prisoner,

admits to pushing prison guard Richard Loftus during

an altercation at the Federal Correctional Institution in

Miami, Florida in 2006. Jones was found guilty of assault

at his ensuing disciplinary hearing and was sanctioned

with the loss of 14 days of good time credit. After exhausting his administrative appeals, Jones petitioned for
2 No. 10-3392

a writ of habeas corpus in federal court pursuant to 28

U.S.C. § 2241, claiming that he was denied due process

at the disciplinary hearing. The district court denied

the petition. We affirm.

I. Background

Jones is currently serving a 30-year sentence on federal

drug trafficking charges. On August 31, 2006, Correctional Officer Richard Loftus escorted Jones to the

Special Housing Unit (“SHU”) at the Miami Federal

Correctional Institution. To reach the SHU, Loftus and

Jones needed to cross the open compound. Generally,

inmates are not handcuffed in an open compound so as

not to render them vulnerable to attack by other inmates. Nevertheless, Loftus ordered Jones to cuff up

while the two were in the open compound. Jones refused,

telling Loftus he would do so if the compound was

closed. Loftus physically attempted to handcuff Jones

twice, and twice Jones pulled away. Loftus then pushed

Jones up against the SHU grill. According to Jones,

Loftus pressed his forearm on Jones’s throat, pinning

him against the SHU grill. Jones pushed Loftus away.

Eventually, Loftus cuffed Jones. Counselor Jose Cabrera

witnessed the incident, which also was captured on

surveillance video. Following the incident, Jones complained of tenderness at his lower throat and neck area

and received medical treatment.

Later on the 31st, Loftus filed an incident report,

citing Jones for assaulting another person in violation of

code 224, and refusing to obey an order in violation of

code 307. See 28 C.F.R. § 541.3. The Bureau of Prisons
No. 10-3392 3

(“BOP”) suspended its internal disciplinary process

while the FBI investigated the incident and the

United States Attorney’s Office determined whether to

criminally prosecute Jones. The U.S. Attorney decided

not to charge Jones on September 13, 2006. Jones received

a copy of the incident report that same day.

A Unit Disciplinary Committee (“UDC”) hearing regarding the incident was initiated on September 20, 2006.

The UDC’s report indicates that Jones requested no

witnesses at that time, but Jones maintains that he told

Counselor Roche (who conducted the UDC hearing) that

he had two witnesses. According to Jones, he knew only

the witnesses’ nicknames, and Roche promised to try

and identify the men. Jones heard nothing further

from Roche.

The UDC referred the case to Detention Hearing

Officer (“DHO”) Yida Posada. Jones’s DHO hearing

was convened and extended on three occasions in

October 2006. The DHO’s notes from one of those

occasions states “Tyrone Walker, witness no reply.” She

does not recall the meaning of that note.

The DHO hearing eventually was held on October 23,

2006. David Tosana served as Jones’s staff representative. Jones had a brief meeting with Tosana—his first

and only meeting with his representative—prior to the

hearing. At that time, Jones asked that Tosana view

the surveillance video of the incident. Jones also told

Tosana that he wanted an inmate, Irvin Green, to testify

at the DHO hearing. Jones contends that he told Tosana

that Green could provide the name of a second witness.
4 No. 10-3392

That individual has since been identified as Yves St.

Hilaire. However, Tosana does not remember Jones

mentioning another witness, and St. Hilaire did not

testify at the DHO hearing. The DHO’s report indicates

that Green was the only witness Jones requested. The

DHO’s notes from October 23 state: “Witness (Irvin Green)

the other name is incorrect”; she has no recollection

of what that note meant. Jones maintains that he would

have requested a third witness as well, an inmate named

Jorge Masvidal, had Masvidal not been released prior to

the DHO hearing, on September 20, 2006. Jones never

mentioned Masvidal to Tosana or the DHO.

After Jones and Tosana met, there was a severalhour recess during which Tosana viewed the surveillance video and prepared a memorandum for the DHO

describing its contents. Jones was not permitted to

watch the video. Tosana’s memorandum stated in

relevant part:

Counselor Jose Cabrera was standing in front of the

grill area when I observed Officer Richard Loftus

S.O.S. escorting inmate Torrence [sic] Jones (19267-

018) to Special Housing Unit. Inmate Jones and Officer

Loftus appeared to be struggling as they approached

the Grill area. It appeared as though Officer Loftus

was attempting to apply restraints on inmate Jones

and inmate Jones appeared to be resisting by walking

away from Officer Loftus and not placing his hands

behind him. . . . Officer Loftus attempted to pin

inmate Jones’ chest to the SHU grill and cuffing [sic]

him, but inmate Jones again resisted by pulling away
No. 10-3392 5

and turning around. Officer Loftus then pushed

inmate Jones in the chest and pinned him against the

grill area by placing his left forearm on inmate Jones’

neck (throat area). At that time inmate Jones placed

both hands on Officer Loftus’ chest and pushed

Officer Loftus away from him.

Tosana also interviewed Green. Jones agreed to have

Green’s testimony presented through a statement rather

than have Green testify in person. Therefore, Tosana prepared a memorandum for the DHO describing Green’s

statements. Green did not testify about the August 31

incident. Rather, he stated that Loftus generally was

aggressive towards and disrespectful of inmates.

In addition to Tosana’s two memoranda, the DHO had

before her a statement from Cabrera, the eyewitness.

Cabrera stated, in relevant part, that he observed Jones

refuse Loftus’s order to cuff up “because the compound

was not closed and that was the rules.” He further stated

that Jones pulled away from Loftus twice when Loftus

tried to cuff him, and that Loftus then “placed the

inmate against the Special Housing grill. The inmate

spun around and placed both hands on officer Loftus.

The inmate push[ed] officer Loftus back hard.”

Also before the DHO was a description of the surveillance video prepared by Bob Wenzler, a Special Investigative Lieutenant. That memo reads, in relevant part:

Richard Loftus, Senior Officer Specialist, attempted

to place hand restraints on inmate [Jones]. The video

further revealed, inmate Jones resisted officer Loftus’

attempt to place restraints on him by spinning away
6 No. 10-3392

from Loftus on two occasions. The third time officer

Loftus put inmate Jones against the Special Housing

Unit grill door. Inmate Jones then assaulted officer

Loftus by pushing him away which cause[d] officer

Loftus to almost lose his balance. Officer Loftus

then regained his balance[,] then restrained inmate

Jones and escorted him into the Special Housing Unit.

At the hearing, Jones gave his account of the incident,

stating that Loftus “kept on trying to cuff me up,” and that

Loftus “put his forearm against my windpipe with

force and I pushed him away.” Jones further stated that

he pushed Loftus in order to stop Loftus’s assault.

The DHO found Jones guilty of both violations. Her

report states that in reaching that conclusion she considered Cabrera’s statement, Wenzler’s memorandum,

and Tosana’s memorandum concerning the video. At

an evidentiary hearing held before Magistrate Judge

Philip M. Frazier on December 21, 2009, the DHO

testified that she also reviewed the inmate injury assessment report, which described Jones’s injuries from the

incident, and that her failure to list it among the documentary evidence she considered was an oversight. In

her written opinion, the DHO also considered Jones’s

position that he was protecting himself against Loftus’s

assault, as well as his admission that he pushed Loftus.

She concluded that “the fact still remains that after resisting to be restrained, [Jones] pushed a staff member

with force. This constitutes an act of aggression.” The

DHO sanctioned Jones with (among other things) the

loss of 14 days of good conduct time. Jones exhausted

internal appeals of that disciplinary decision.
No. 10-3392 7

On September 24, 2007, Jones filed a habeas petition challenging the constitutionality of his prison disciplinary proceeding. Jones filed a motion for summary

judgment on October 28, 2009. At the December 21,

2009 evidentiary hearing before the magistrate judge,

the DHO testified that she did not see photographs of

Jones’s injuries at the hearing. Jones testified that he

was unable to present photographs of his injuries to

the DHO because he never received them prior to the

hearing. He further stated that he was not given the

opportunity to review any of the documentary evidence,

including medical reports, prior to his hearing. Jones

also stated that he requested that the DHO review the

medical reports and consider the treatment he received

after the incident.

On February 23, 2010, Magistrate Judge Frazier issued

a Report and Recommendation concluding that Jones

had not been denied due process, and recommending

both the denial of Jones’s motion for summary judgment and the entry of judgment against him. Jones

filed objections to the Report and Recommendation.

Chief District Judge Herndon reviewed and ultimately overruled those objections, issuing an opinion

adopting the magistrate’s Report and Recommendation

on September 28, 2010. Jones timely appealed.

II. Discussion

We review de novo the district court’s denial of Jones’s

§ 2241 petition. Daniels v. Knight, 476 F.3d 426, 433 (7th

Cir. 2007).
8 No. 10-3392

Federal inmates must be afforded due process before

any of their good time credits—in which they have a

liberty interest—can be revoked. See Brooks-Bey v. Smith,

819 F.2d 178, 180 (7th Cir. 1987). In the context of a

prison disciplinary hearing, due process requires that

the prisoner receive (1) written notice of the claimed

violation at least 24 hours before hearing; (2) an opportunity to call witnesses and present documentary

evidence (when consistent with institutional safety) to

an impartial decision-maker; and (3) a written statement

by the fact-finder of the evidence relied on and the

reasons for the disciplinary action. See Scruggs v. Jordan,

485 F.3d 934, 939 (7th Cir. 2007); Wolff v. McDonnell, 418

U.S. 539 (1974). A disciplinary decision must also be

supported by “some evidence” to satisfy due process.

Scruggs, 485 F.3d at 941 (quoting Superintendent, Mass.

Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985)).

Jones raises numerous due process challenges to his

disciplinary hearing. Jones first contends that his due

process rights were violated because both his receipt of

the incident report and his disciplinary hearing occurred

outside the time frames set forth in the applicable BOP

regulations. Jones also argues that he was wrongfully

denied the opportunity to view the surveillance video,

review and present documentary evidence, and call

certain witnesses. Jones further objects to the DHO’s

failure to watch the surveillance video. According to

Jones, these multiple violations denied him the opportunity to present his “actual innocence” defense—namely,

that he lacked the specific intent to injure Loftus, and

therefore cannot be found guilty of assault. As discussed
No. 10-3392 9

below, that argument contains a fundamental flaw that

dooms Jones’s appeal. Finally, Jones contends that he

was found guilty based on insufficient evidence.

We begin with Jones’s argument that delays in the

disciplinary process, which allegedly violated BOP regulations, constituted a deprivation of due process. BOP

regulations provide that “[s]taff shall give each inmate

charged with violating a Bureau rule a written copy

of the charge(s) against the inmate, ordinarily within 24

hours of the time staff became aware of the inmate’s

involvement in the incident.” 28 C.F.R. § 541.15(a). Here,

Jones did not receive a copy of the incident report

until 13 days after the incident. BOP regulations also

provide that an inmate’s “initial hearing before the

UDC, ordinarily [will be] held within three work days

from the time staff became aware of the inmate’s involvement in the incident.” Id. § 541.15(b). That time frame

may be extended “for a good cause shown by the

inmate or staff and documented in the record of the

hearing.” Id. § 541.15(k). Furthermore, the regulations

allow prison staff to “suspend disciplinary proceedings

for a period not to exceed two calendar weeks while

informal resolution is undertaken and accomplished.” 28

C.F.R. § 541.11, table 2, n. Here, the UDC hearing was

held almost three weeks after the incident, and the DHO

hearing occurred nearly two months after the incident.

Jones argues that the prison violated § 541.15(a) and (b),

and that those violations deprived him of due process.

Jones’s delay argument is not based on his liberty

interest in his good time credits. As noted above, with
10 No. 10-3392

respect to timing, all that due process requires is that

prisoners be given written notice of alleged violations

at least 24 hours before a disciplinary hearing. Jones had

more than sufficient notice—he received the incident

report a week before his UDC hearing and over a

month before his DHO hearing. Rather, Jones argues

that he has a separate liberty interest in the time frames

set forth in § 541.15(a) and (b).

Before considering whether those regulations give rise

to a liberty interest, we note that whether Jones has

established a violation of the regulations is not clear.

Jones acknowledges that the reason for the initial delay

was the pending FBI investigation, which likely provides “good cause” for at least a portion of the delay

in holding the UDC hearing. Moreover, the regulations—

which address the timing of only notice to an inmate

and the UDC hearing, not the DHO hearing—appear to

be advisory, stating when events “ordinarily” should

occur. But even assuming there was a violation of BOP

regulations in this case, that violation did not infringe

Jones’s constitutionally-protected rights.

Noncompliance with § 541.15(a) and (b) amounts to a

due process violation only if those regulations create a

liberty interest. Prison regulations give rise to a liberty

interest only if they shield inmates from an “atypical

or significant hardship . . . in relation to the ordinary

incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484

(1995); see also Crowder v. True, 74 F.3d 812, 814 (7th Cir.

1996) (applying Sandin, which addressed state-created

liberty interests under the Fourteenth Amendment, in
No. 10-3392 11

the context of a Fifth Amendment claim involving

federal prison regulations). The delays at issue did not

impose an “atypical or significant hardship” on Jones

warranting due process protection.

Moreover, Jones suffered no prejudice as a result of the

delays, so any conceivable due process violation was

harmless. See Piggie v. Cotton, 344 F.3d 674, 678 (7th

Cir. 2003) (using harmless error analysis in review

of prison disciplinary board’s alleged denial of prisoner’s

right to call witness at disciplinary hearing). Jones argues

that the delays prejudiced him by preventing him

from calling Masvidal as a witness, as Masvidal was

released from prison on September 20, 2006, the day

of Jones’s UDC hearing. Jones claims that Masvidal

would have testified that Loftus pinned Jones against the

SHU grill by placing his forearm on Jones’s throat, and

that Jones had not assaulted Loftus. In short, Masvidal

would have corroborated Jones’s version of events.

But the DHO had other evidence corroberating that

version of events before her. Specifically, she considered

Jones’s statement that he pushed Loftus only to stop

him from cutting off Jones’s windpipe, as well as

Tosana’s memorandum, which confirmed that Loftus

pinned Jones against the grill area by placing his forearm on Jones’s neck. Masvidal’s testimony merely

would have been cumulative of that evidence. Moreover,

the DHO credited Jones’s version of events—that he

only pushed Loftus to free his windpipe. Nevertheless,

she concluded that, regardless of Jones’s motive, he was

guilty of assault because he admittedly pushed a staff
12 No. 10-3392

member with force. In essence, the DHO found that

Jones’s admission that he pushed Loftus provided sufficient evidence to support a finding of guilt on the

assault charge. Plainly, Masvidal’s testimony that Loftus

was the aggressor would not have changed the DHO’s

decision. Because Jones’s inability to present Masvidal’s

testimony did not prejudice him, any conceivable error

was harmless.

The same harmless error analysis applies to Jones’s

inability to call St. Hilaire as a witness. Jones contends

that, like Masvidal, St. Hilaire would have testified as

to his “actual innocence.” In other words, St. Hilaire

would have verified Jones’s version of events in which

he only pushed Loftus to free himself. As explained

above, that testimony would have done nothing to help

Jones’s defense, and therefore any error related to

St. Hilaire also was harmless.

We turn now to Jones’s contention that he was denied

due process because he was not permitted to view evidence that he characterizes as exculpatory, including

the surveillance video, his medical reports, photographs

of his injuries, Counselor Cabrera’s report, Bob Wenzler’s

report, and Staff Representative Tosana’s memoranda.

The rule of Brady v. Maryland, 373 U.S. 83 (1963), requiring

that material exculpatory evidence be disclosed to

a criminal defendant, applies in the context of prison disciplinary proceedings. Piggie, 344 F.3d at 679. Consequently, procedural due process required prison officials

to disclose all material exculpatory evidence to Jones.

Scruggs, 485 F.3d at 939. There is an exception, however,
No. 10-3392 13

to the disclosure of material, exculpatory evidence that

“would unduly threaten institutional concerns.” Id.

(citations omitted).

In this context, the purpose of the Brady rule is “to

insure that the disciplinary board considers all of the

evidence relevant to guilt or innocence and to enable

the prisoner to present his or her best defense.” Piggie,

344 F.3d at 678. Jones argues that his lack of access to

the evidence prevented him from presenting what he

calls his actual innocence defense. As noted above, according to Jones, he is not guilty of assault because

he lacked the specific intent required for assault—the

intent to cause physical injury. But lack of specific intent

is not a valid defense to assault in the context of a

prison disciplinary action. Nor is self-defense, which

may better describe Jones’s defense.

Intent to do harm is an element of both criminal assault

and common law tortious assault. See 6A C.J.S. Assault

§ 81 (2011) (“intent to injure or to cause a reasonable

apprehension of bodily injury is an essential element of

[criminal] assault”); RESTATEMENT (SECOND) OF TORTS

§ 21 (1965) (liability for tortious assault requires intent “to

cause a harmful or offensive contact . . ., or an imminent

apprehension of such a contact”). However, Jones was

neither convicted of criminal assault, nor held civilly

liable for assaulting Loftus. Rather, he was found to have

violated section 224 of 28 C.F.R. § 541.3, the BOP’s prohibition on inmates “assaulting any person.” Jones presents no argument that section 224 should be interpreted

to incorporate the common law definition of assault.
14 No. 10-3392

And an analysis of that section suggests that the BOP did

not intend such a reading of the regulation.

At common law, assault involved no physical contact

(only the threat of such contact), whereas battery did

require such contact. See United States v. Vallery, 437 F.3d

626, 631 (7th Cir. 2006). The BOP’s regulation defining

prohibited acts by inmates does not include a separate

prohibition on battery. Code section 224, which prohibits assault, states that “a charge at this level is used

when less serious physical injury or contact has been

attempted or accomplished by an inmate.” The term

“assault,” as it is used in section 224, appears to incorporate the concepts of both common law battery and

assault. Because the section 224 is not coextensive with

common law assault, we see no reason to import an

intent requirement. Moreover, battery (which section

224 incorporates) does not require intent to injure, only

intent to make the offensive contact. See RESTATEMENT

(SECOND) OF TORTS § 13 cmt. c (1965) (liability for tortious

battery requires intent “to cause a harmful or offensive

contact,” and “it is immaterial that the actor is not

inspired by any personal hostility to the other, or a

desire to injure him”). Jones admittedly intended to

push Loftus. Therefore, even if we were inclined to

import common law principles to our interpretation of

the BOP regulations, Jones possessed the requisite intent.

Jones’s defense can also be viewed as one of self-defense. But we have held that inmates do not have a constitutional right to raise self-defense as a defense in the

context of prison disciplinary proceedings. See Scruggs,
No. 10-3392 15

485 F.3d at 938-39; Rowe v. DeBruyn, 17 F.3d 1047, 1049

(7th Cir. 1994). As such, the DHO was under no constitutional obligation to allow Jones’s claim that he was

merely defending himself to serve as a complete defense

to the charge of assault. She was permitted, as she did, to

find Jones guilty based on his admission alone, regardless of motivation.

Because Jones’s claimed defense is not a valid one,

none of the evidence he says he should have been

provided can be characterized as exculpatory. Only

evidence that undermined or contradicted Jones’s admission that he pushed Loftus would be exculpatory,

and none of the evidence at issue does so. Jones was

entitled only to exculpatory evidence, and therefore

there was no due process violation. Moreover, because

the evidence was not exculpatory, it would not have

changed the outcome of the DHO hearing, and thus

Jones suffered no prejudice.

Jones’s claim with respect to the video fails for the

additional reason that prison officials are not required

to disclose evidence that would unduly threaten institutional safety. We have held that an inmate is not entitled

to disclosure of an exculpatory surveillance video if

allowing the inmate to see the tape would entail a

security risk. Piggie, 344 F.3d at 679. In addition, we

have recognized that one “bona fide security justification” for non-disclosure is that the video might allow

the inmate to “learn the location and capabilities of the

prison surveillance system, thus allowing him to avoid

detection in the future.” Id.; see also Johnson v. Finnan, 467
16 No. 10-3392

F.3d 693, 694 (7th Cir. 2006) (stating in dicta that “security

concerns may make it prudent to prevent inmates

from learning the capabilities of the video monitors”).

Here, respondent asserts that allowing Jones to view

the video would have provided him with the location

of the surveillance camera that captured the incident,

its field of view, and the image resolution, all of which

would give rise to safety risks. Respondent’s valid

concern justifies the DHO’s refusal to allow Jones to see

the video himself.

The fruitlessness of Jones’s actual innocence defense

also dooms his objection to the DHO’s refusal to view

the surveillance video. There is no dispute that the

video shows Jones pushing Loftus. Even if it also shows

Loftus using force on Jones first, that does not change

the fact that “physical injury or contact [was] attempted

or accomplished by” Jones in violation of section 224.

Finally, Jones asserts a sufficiency of the evidence

argument. The DHO’s decision need only be support by

“some evidence in the record.” Webb v. Anderson, 224

F.3d 649, 652 (7th Cir. 2000) (citation omitted). We

have characterized the “some evidence” standard as a

“meager threshold.” Scruggs, 485 F.3d at 941. Once that

threshold is crossed, we will not reverse. Id. Here, Jones’s

own admission provides sufficient evidence to uphold

the DHO’s decision. Because the DHO “was not required to accept that protecting [himself] was a defense that could shield [Jones] from the [assault] charge,”

the evidence was sufficient to sustain the finding of

guilt. Id.
No. 10-3392 17

III. Conclusion

For the foregoing reasons, we AFFIRM THE denial of

the petition.

4-19-11