Kevin S. Gordon v. ED BUSS, Superintendent

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 11, 2005*
Decided August 22, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3805
KEVIN S. GORDON,
Petitioner-Appellant,
v.
ED BUSS, Superintendent,
Respondent-Appellee.
Appeal from the United
States District Court for the
Northern District of Indi-
ana, South Bend Division.
No. 3:03cv0935 AS
Allen Sharp, Judge.
Order
Kevin Gordon left his coat behind in a prison cafeteria. Looking through the
pockets in an effort to identify the coat’s owner, guards found a map of the prison
with the entrance of a utilities tunnel marked, plus a ten-inch ponytail that Gordon
recently had cut off. He was charged with possessing escape paraphernalia—
something that the prison thought serious, because Gordon’s current sentence was
imposed for the crime of escaping from another prison. Indiana rescinded 180 days
of Gordon’s earned-time credit, placed him in segregation for six months, and re-
duced his credit-earning class. The district court denied Gordon’s petition for a writ
of habeas corpus, see 28 U.S.C. §2254, ruling that the prison had followed all proce-
* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R.
34(f).

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No. 04-3805 Page 2
dural requirements and that the decision has the support of some evidence, the con-
stitutional standard. See Superintendent of Walpole v. Hill, 472 U.S. 445 (1985).
Gordon’s principal contention on appeal is that both the disciplinary board and
the district judge were biased against him. The only “evidence” of bias that he pre-
sents, however, is the adverse decision. Half of all litigants lose on the merits; this
does not show bias. See Liteky v. United States, 510 U.S. 540 (1994). The district
judge did err to the extent that he thought any of Gordon’s theories forfeited for lack
of presentation in the administrative process, but appellate courts exist to deal with
claims of error, and this one is rectified easily enough: the state has confessed error,
and we reach the merits (as the district judge did too, in an alternative ruling).
The prison disciplinary board mentioned both the map and the hair when ruling
against Gordon. He complains that the map was not properly in evidence, but tech-
nical rules do not apply to administrative decisionmakers. The Board knew what
the map represented, and Gordon had an opportunity to respond to its potential
significance. The major problem with the Board’s reliance on the map (if “reliance”
is what the brief mention in its decision implies) is that the prison administration’s
own investigation cleared Gordon of any claim that he had obtained and marked the
map as part of an escape plan. The map had been given to Gordon by the prison’s
“tag shop,” where he worked, and the coloring designated a portion of the corridor
that Gordon had been assigned to paint. The investigative report related that
Gordon was not supposed to retain the map in his possession, and the fact that he
violated this direction might have supported some penalty, but the disciplinary
board did not clearly distinguish between that offense and the potentially more se-
rious charge that Gordon had obtained and marked the map himself to help with an
escape.
It is unnecessary to obtain clarification, however, because when Gordon pursued
administrative review within the prison system higher officials stated that their de-
cisions rested on the hair. To a novice in escape techniques, a ponytail may not
seem in the same class as a hacksaw or a chisel. As an administrative reviewer ex-
plained, however, “in the past, hair has been used as an integral part of means to
disguise life like offenders for the purpose of buying more time for an escape and
eluding capture.” Guards who see a life-like figure in a prisoner’s bed may not real-
ize until too late that it is a dummy, and that the real prisoner has flown the coop.
C.A. Penfold, the prison system’s Final Reviewing Authority, stated that he was re-
lying on the conduct report, which spelled out how Gordon came by the map; this
demonstrates that his punishment does not rest on a mistaken belief that the mark-
ing on the map was a pointer to an escape route. But the possibility that hair could
be used to delay an escape’s discovery is “some evidence” to support the decision, so
Gordon is not entitled to federal collateral relief.
AFFIRMED

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