Antoine Nelson v. Christopher Stevens

                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 May 6, 2021*
                                  Decided May 28, 2021


                           DIANE S. SYKES, Chief Judge

                           JOEL M. FLAUM, Circuit Judge

                           AMY J. ST. EVE, Circuit Judge

No. 20-1916

ANTOINE C. NELSON,                              Appeal from the United States District
    Plaintiff-Appellant,                        Court for the Western District of Wisconsin.

      v.                                        No. 18-cv-238-wmc

CHRISTOPHER STEVENS, et al.,                    William M. Conley,
     Defendants-Appellees.                      Judge.


       Officials at Wisconsin’s Green Bay Correctional Institution suspected that
Antoine Nelson, a prisoner, was smuggling cocaine into the facility. Following an
investigation and a disciplinary hearing, Nelson was found guilty of possession and use
of intoxicants, WIS. ADMIN. CODE DOC §§ 303.43, 303.60, and he was punished with
240 days in disciplinary separation (formerly known as segregation). Nelson sued
under 42 U.S.C. § 1983 claiming, as relevant to this appeal, that two prison officials
violated his Fourteenth Amendment right to due process. He alleged that Christopher

      * We have agreed to decide this 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. FED. R. APP. P. 34(a)(2)(C).
No. 20-1916                                                                        Page 2

Stevens, the investigating officer, deleted a potentially exculpatory surveillance video,
and that James Elsinger, the hearing officer, was biased. On cross-motions for summary
judgment, the district judge resolved both claims in favor of the defendants. Because the
surveillance video was immaterial to Nelson’s guilt and Nelson did not submit any
admissible evidence of bias, we affirm.

       We recount the evidence in the light most favorable to Nelson. See Markel Ins. Co.
v. Rau, 

954 F.3d 1012

, 1016 (7th Cir. 2020).) The investigation that led to his discipline
began in 2017, after an inmate tested positive for cocaine use. Captain Stevens launched
an inquiry and discovered that Jason Rinn, another inmate, had sent $3,000 to Brenda
Maruri, who then had a “contact visit” with Nelson. Maruri, Rinn, and Nelson told
conflicting stories about these events. Nelson said the exchange of money covered a
gambling debt; Rinn and Maruri said the money was for a car for Rinn. When Stevens
pressed Nelson further, he refused to answer questions, prompting Stevens to order
Rinn and Nelson to submit urine samples for testing. Both men tested positive for
cocaine use. Nelson denied using cocaine and demanded a retest. He insisted that
Stevens tainted his urine sample to frame him because he refused to answer more
questions. Nelson’s demand for a retest was denied.

        Stevens also reviewed surveillance video of events occurring after Felicia Davis,
another visitor, had a contact visit with Nelson. As Stevens recounted the video footage,
after the contact visit, Nelson passed a package to inmate Henry Davis, who then
passed it to inmate Michael Henderson. The three inmates denied receiving or passing
along any package. Nelson asserted that he was working his prison job at the relevant
time, and Davis swore that he was in his cell. In any case, after reviewing the video,
Stevens ordered a search of Henderson’s cell, and staff discovered cocaine there.
Stevens did not preserve the surveillance video, ostensibly because he was unable to
save it at the desired level of focus.

       Following his investigation, Stevens issued a conduct report charging Nelson
with attempted unauthorized transfer of property, WIS. ADMIN. CODE DOC § 303.40;
possession of intoxicants, § 303.43; and use of intoxicants, § 303.60. The conduct report
cited Rinn’s transfer of $3,000 to Maruri, Maruri’s contact visit with Nelson around the
time of the money transfer, the inconsistent explanations for the money transfer, the
cocaine-positive urinalysis tests for both Nelson and Rinn, and Stevens’s account of his
observations from the video recording.

      Captain Elsinger, the hearing officer, gave Nelson a copy of the conduct report.
As required by prison regulations, he also advised Nelson of his “contemplated
No. 20-1916                                                                             Page 3

disposition”—240 days of disciplinary separation—if Nelson declined a hearing and
accepted summary punishment. WIS. ADMIN. CODE DOC § 303.78(2)(a). (The maximum
penalty is 360 days. 


 § 303.72(2).) Nelson rejected the offer. Before the disciplinary
hearing, Nelson asked for the surveillance video, but Stevens denied the request.

        Elsinger found Nelson guilty of all charges. He considered Nelson’s evidence—
his own testimony, testimony from inmate Davis, and a written statement from inmate
Henderson—as well as the conduct report. Elsinger reasoned that Stevens’s statements
in the report were credible because “he ha[d] nothing to gain by falsifying the facts.”
Elsinger discredited Nelson’s testimony because he continued to deny using cocaine
even after his positive urinalysis results. As punishment Elsinger imposed 240 days of
disciplinary separation. On administrative appeal the warden modified one of
Elsinger’s findings (on a matter not relevant here) and otherwise affirmed the order of
240 days of disciplinary separation.

       Nelson then filed this suit. As relevant here, he alleged that Stevens deprived
him of due process by failing to preserve the surveillance video. He also claimed that
Elsinger was biased, alleging that he chided him before the hearing for not accepting
the offer of 240 days of segregation and said that he would impose 240 days regardless
of the evidence at the hearing.

       The judge entered summary judgment for the defendants. Based on the length of
discipline, the judge acknowledged that Nelson was entitled to “informal due process.”
Westefer v. Neal, 

682 F.3d 679

, 685 (7th Cir. 2012). The judge criticized Stevens for not
preserving and producing the video, but based on the other evidence of Nelson’s guilt,
he concluded that the video would not have changed the outcome of the disciplinary
hearing. The judge also determined that the prehearing statements attributed to
Elsinger did not show bias or predetermined guilt.

        On appeal Nelson argues that the surveillance video would have shown that he
was not guilty of possessing or using cocaine. The denial of potentially exculpatory
evidence at a prison disciplinary hearing is subject to harmless-error review; the
prisoner must demonstrate that he was prejudiced by the deprivation. See Jones v. Cross,

637 F.3d 841

, 847 (7th Cir. 2011); see also Piggie v. Cotton, 

342 F.3d 660

, 666 (7th Cir. 2003).
Under Wisconsin law a finding of guilt requires evidence sufficient to find that “it was
more likely than not that the inmate committed the act.” WIS. ADMIN. CODE DOC
§ 303.80(6)(c). This standard differs from the “some evidence” standard, which is the
minimum amount of evidence needed to satisfy federal due process and which the
district judge used. See Jones, 

637 F.3d at 845

. Using the state’s evidentiary standard, we
No. 20-1916                                                                          Page 4

now ask whether the presence of the video recording would have prevented a finding
that it was more likely than not that Nelson possessed and used cocaine. See 

id. at 847


       Nelson contends that the video recording would have shown that he did not pass
a package to inmate Davis and was not responsible for the cocaine found in
Henderson’s cell. He also argues that the video recording would have contradicted
Stevens’s description of it and therefore undercut Stevens’s credibility. But the
determination of his guilt did not depend on the video, the cocaine later found in
Henderson’s cell, or Stevens’s credibility. Rather, Nelson’s positive cocaine test
conclusively proved that he possessed and used an intoxicant. Nelson speculates that
his urinalysis was tainted in order to frame him and insists that a retest would have
cleared him. Nothing supports his speculation. And retesting is not required even in
criminal trials, let alone in prison disciplinary proceedings, absent a legitimate reason to
question urinalysis results. See United States v. Sanapaw, 

366 F.3d 492

, 496 (7th Cir. 2004).
Because Nelson was not prejudiced by the failure to produce the video, the judge
properly entered summary judgment for Stevens.

        Nelson also challenges the summary-judgment ruling in favor of Elsinger. He
maintains that Elsinger’s rebuke before the hearing suggests that he planned to find him
guilty regardless of the evidence. We do not need to parse the meaning of the statement
Nelson attributes to Elsinger because there’s no evidence that he said it. “[A] court may
consider only admissible evidence in assessing a motion for summary judgment.”
Gunville v. Walker, 

583 F.3d 979

, 985 (7th Cir. 2009). Nelson did not submit a sworn
statement under penalty of perjury attesting to what Elsinger said to him. He
mentioned the prehearing statement in his complaint, but that’s insufficient. At
summary judgment a party “must go beyond the pleadings and support its contentions
with proper documentary evidence.” Beardsall v. CVS Pharmacy, Inc., 

953 F.3d 969

, 972
(7th Cir. 2020) (quoting Warsco v. Preferred Tech. Grp., 

258 F.3d 557

, 563 (7th Cir. 2001));
see also Celotex Corp. v. Catrett, 

477 U.S. 317

, 322–23 (1986).

        We’re left with the mere fact that before the hearing Elsinger formally offered
Nelson a 240-day term of discipline if he declined a hearing and then imposed that
same term after the hearing. A prison regulation requires a hearing officer to give a
prisoner an offer of “contemplated” punishment before a disciplinary hearing.
§ 303.78(2). Hearing officers “are entitled to a presumption of honesty and integrity.”

342 F.3d at 666

. To overcome that presumption, Nelson needed to present clear
evidence of bias. See United States v. Armstrong, 

517 U.S. 456

, 465 (1996). Elsinger’s
decision to impose the same term after the hearing is not clear evidence of bias; it
No. 20-1916                                                                          Page 5

suggests only that he thought the initial offer was fair. The admissible evidence thus
falls far short of satisfying the high evidentiary burden required to prove bias. Piggie,

342 F.3d at 666

 (“[T]he constitutional standard for impermissible bias is high … .”).


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