Case Information
*1 Before B AUER and E ASTERBROOK , Circuit Judges , and S T . E VE , District Judge . [*]
E ASTERBROOK , Circuit Judge . Whilе Eric Grandberry was the head inmate law clerk at Indiana’s Putnamville Correc- tional Facility, he used computers to download legal materi- als for other рrisoners. He also assisted the prison’s employ- ees. The prison’s librarian asked him to obtain and fill out a petition to stop child support, and another member of the library’s staff asked him to obtain and fill out forms that her daughter could use to apply for a divorce. Grandberry ful- filled these requests.
In April 2011 the prison sent the librаry’s computers to the Indiana State Police Crime Lab for analysis. Data recov- ered from the hard drives showed what Grandberry had done. He was moved to solitary confinement and charged with administrative offense 207, “Possession of Electronic Device.” This designates as an infraction the “[u]nauthorized alteration, usе or possession of any electronic device … . (This offense includes accessing computers, software, the In- ternet, a facility LAN, etc. or using such in a mаnner not au- thorized by the Department of Correction … .)” A discipli- nary officer revoked 30 days of his good-time credits.
Grandberry sought federal review under 28 U.S.C. §2254.
After the distriсt court denied the petition, a panel of this
court concluded that he did not need a certificate of appeal-
ability.
Grandberry v. Keever
,
Grаndberry contends with some force that the prison did
not use all constitutionally required procedures. See
Wolff v.
McDonnell
, 418 U.S. 539 (1974). He also contends that the
charge against him is not supported by evidence—and as
that argument, if accepted, would prevent the prison from
holding a second hearing, we start there. We end there too,
because the record does not contain evidence that Grandber-
ry used the library’s computers without authorization.
Super-
intendent of Walpole v. Hill
,
True, Grandberry downloaded forms related to child support and divorce, even though these were outside his remit аs assistant to prisoners who needed support with problems arising from their custody. But the offense of which he was accused entails the “unauthorized” use of a computer, including “accessing … the Internet … in a man- ner not authorized by the Department of Correction”. Indi- ana concedes that employees of the prison directed Grand- berry to do exactly what he did. His conduct therefore was authorized.
That follows from the way the word “unauthorized” normally is used. Prisons are nоt normal places and may employ words in abnormal ways. Indiana does not do this with the word “unauthorized,” however. One part of the prison system’s thick pile of rеgulations defines “author- ized” as:
Any of the following: • According to Department and facility rules, policies,
procedures or directives; • According to the direction or orders of a staff per-
son; • According to an established facility custom ap-
proved by the facility administration; or, • With permission from an appropriate staff person. Indiana Department of Correction Policy 02-04-101 III.D. Grandberry’s conduct was “authorized” under the second and fourth definitions.
Indiana cоntends that Grandberry should not have fol- lowed the staff’s directives. We assume that they ought not have asked him for help on matters outside the scope of their official duties. But how does that justify requiring Grandber- ry to spend an extra month in prison? The infraction he was found to have committed deals with unauthorized computer use. What he did was “аuthorized” under the regulation, which asks what orders or permissions the staff actually gave, not what orders or permissions they should have given. If Grandberry had not complied, he could have been disci- plined for committing offense 347, “Refusing an Order”, which prohibits “[r]efusing to obey an order from any staff member.”
It is more than a little surprising to encounter an argu- ment by a prison system that an inmate may be рenalized for obeying an order by the prison’s staff. Put to one side the question whether the Constitution allows a whipsaw under which a prisoner may be penalized whether or not he com- plies with an order. Prisons regularly contend that prisoners must obey all orders. “Comply now and protest later” is a staple in prison life. It would ill serve the interests of the In- diana Department of Correction to tell prisoners (as the De- partment’s appellate brief insists) that they are not only enti- tled but also required tо disobey orders that should not have been given. In such a regime prisoners undoubtedly would become creative in finding justifications for disobedience. Far better to have a norm of compliance; then staff members, rather than the prisoners, get to decide in the first instance which orders are proper and must be fоllowed. If the library staff gave Grandberry improper orders, the penalty should fall on the staff members.
Doubtless some orders are so outré that they must be re-
jected, even at the risk of being charged with insubordina-
tion. If the librarian had handed Grandberry a knife and told
him to kill another inmate, he could have been penalized for
complying rather than making a beeline for the warden and
handing in the weapon. Official authorization is no defense
to a charge of murder. Cf.
United States v. Bailey
,
The original conduct report alleged that Grandberry used a computer to download pornography and tax forms as well as divorce and child-support documents. He does not con- tend that the library staff ordered or authorized him to do either of those things. But an investigatory report dated two weeks after the hearing concludes that both of those allega- tions are unsupported. The state’s brief in this сourt does not contend that the penalty could be justified on either of these grounds, and counsel’s statement in oral argument that the state is not giving up on them сomes too late. Arguments must be presented in the briefs; these were not and have been forfeited, leaving no evidence at all.
Indiana maintains that Grandbеrry failed to alert the dis- trict court adequately to his argument that he acted with of- ficial authorization. Perhaps so, but the state bears the prin- cipal rеsponsibility. It refused to provide Grandberry with the full investigative report, so he could not be sure exactly what he supposedly did wrong. The prison’s hearing officer stated that he found the report persuasive but did not so much as hint at its contents, leaving Grandberry in the dark when asking the district court for relief. Not until this case reached the court of appeals, and we appointed counsel to assist Grandberry, did the state disclose the full report—and then only to counsel. (Grandberry nоw has a redacted ver- sion, which is more than he was armed with in the district court.) Counsel’s appellate arguments on Grandberry’s be- half are more complеte and focused than his pro se argu- ments in the district court, but he made a comprehensible due process argument and is entitled to elaborate on appeal. Cf. Lebron v. National R.R. Passenger Corp ., 513 U.S. 374, 379 (1995); United States v. Billups , 536 F.3d 574, 578 (7th Cir. 2008).
The judgment is reversed, and the case is remanded with instructions to issue a writ of habeas corpus restoring Grandberry’s good-time credits.
Notes
[*] Of the Northern District of Illinois, sitting by designation.