In the
United States Court of Appeals
For the Seventh Circuit

No. 97-3264

JAMES L. WEBB,

Petitioner-Appellant,

v.

RON ANDERSON, Superintendent,
Indiana State Prison,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 97 C 337--Allen Sharp, Judge.


Argued September 14, 1999/*--Decided August 16, 2000



  Before BAUER, ROVNER and EVANS, Circuit Judges.

  ROVNER, Circuit Judge. James L. Webb, an inmate
of the Indiana State Prison, lost 90 days of good
time credit when prison authorities determined
that he had used marijuana based on a positive
urinalysis. After exhausting his administrative
remedies, Webb filed a petition for a writ of
habeas corpus, arguing that because prison
officials failed to maintain an adequate chain of
custody for the urine specimen, their
disciplinary decision lacks "some evidence" to
support it. See Superintendent, Mass.
Correctional Inst., Walpole v. Hill, 472 U.S.
445, 105 S. Ct. 2768 (1985). We conclude that the
omissions in the chain of custody form and
toxicology report at issue in this case are not
so serious as to preclude the prison’s reliance
on them; together, the two documents constitute
"some evidence" that Webb used marijuana, and
that is all that the Due Process Clause of the
Fourteenth Amendment, as construed by the Supreme
Court, requires.

I.
  The Indiana State Prison randomly tests its
inmates for drug and alcohol use. At 4:30 a.m. on
March 9, 1996, the prison facility at Michigan
City collected a urine sample from Webb. The
chain of custody slip confirms that the sample
was sealed in Webb’s presence: it bears his
initials as well as the name of the collecting
officer. R.6 Ex. A3; see also id. Ex. A2. The
parties agree that two subsequent entries on the
custody slip reflect that the specimen arrived at
the laboratory of a local hospital on March 12,
still with the seal intact. A March 15 toxicology
report, bearing Webb’s name and prisoner number
and the same toxicology number as the chain of
custody form, indicates that the specimen was
analyzed on March 13 and tested positive for
cannabinoids, the active narcotic agent in
marijuana. R.6 Ex. A3. Neither the toxicology
report nor the chain of custody form, however,
identifies the technician who tested the
specimen, nor does either document confirm that
the specimen remained sealed until it was tested.
The prison received the test results on March 25.
R.6 Ex. A2.

  Based on the lab report, the prison charged
Webb with the unauthorized use of a narcotic
drug. R.6 Ex. A4. Webb contested the charge,
asserting that "[t]here is no certified chain of
custody, and there is no name as to who did the
test." R.6 Ex. A5. A hearing took place on April
1, 1996. There, with the assistance of a lay
advocate, Webb reiterated his challenge to the
sufficiency of the evidence. The hearing officer
nonetheless found him guilty of the charge,
"[b]ased on the test results," and recommended
that the prison deprive him of 90 days’ credit
for good time. R.6 Ex. A5. A reviewing officer
found no reason to disturb either the finding
that Webb had used marijuana or the recommended
sanction. That officer explicitly rejected Webb’s
assertion that the chain of custody had been
broken, reasoning that the handling of his
specimen was adequately documented on the
toxicology form. R.6 Ex. A7. A final review by a
disciplinary review manager likewise rejected
Webb’s argument. R.6 Ex. A9. Indiana does not
provide for state-court review of prison
disciplinary decisions, Hasty v. Broglin, 531
N.E.2d 200 (Ind. 1988), so at this point Webb had
exhausted his state remedies.

  Webb filed a habeas petition alleging that the
prison had violated his right to due process. The
district court denied Webb relief, concluding
that the evidence underlying the disciplinary
decision satisfied the standard articulated in
Hill, 472 U.S. at 454, 105 S. Ct. at 2773. R.9,
Webb v. Parke, No. 97 C. 337, Order at 2 (N.D.
Ind. Aug. 7, 1997)./1

II.
A.

  When a state prisoner faces the loss of good
time credits for alleged misconduct, he is
entitled "to those minimum procedures appropriate
under the circumstances and required by the Due
Process Clause [of the Fourteenth Amendment] to
insure that the state-created right is not
arbitrarily abrogated." Wolff v. McDonnell, 418
U.S. 539, 557, 94 S. Ct. 2963, 2975 (1974). Among
other things, the "minimum requirements of
procedural due process" (id. at 558, 94 S. Ct. at
2976) demand that the findings of a prison
disciplinary board have the support of "some
evidence in the record." Hill, 472 U.S. at 454,
105 S. Ct. at 2773. This is a lenient standard,
see Lenea v. Lane, 882 F.2d 1171, 1175 (7th Cir.
1989), requiring no more than "a modicum of
evidence." Hill, 472 U.S. at 455, 105 S. Ct. at
2774. Even "meager" proof will suffice, so long
as "the record is not so devoid of evidence that
the findings of the disciplinary board were
without support or otherwise arbitrary." Id. at
457, 105 S. Ct. at 2775; see also Lenea, 882 F.2d
at 1175 ("Although ’some evidence’ is not much,
. . . it still must point to the accused’s
guilt."). It is not our province to assess the
comparative weight of the evidence underlying the
disciplinary board’s decision. Hill, 472 U.S. at
455, 105 S. Ct. at 2774; see also Meeks v.
McBride, 81 F.3d 717, 720 (7th Cir. 1996), citing
Viens v. Daniels, 871 F.2d 1328, 1335 (7th Cir.
1989). "[T]he relevant question is whether there
is any evidence in the record that could support
the conclusion reached by the disciplinary
board." Hill, 472 U.S. at 455-56, 105 S. Ct. at
2774 (emphasis ours).

  The toxicology report and the chain of custody
slip constitute "some evidence" supporting the
decision to impose disciplinary sanctions upon
Webb. The parties agree that the chain of custody
slip confirms the collection of the urine sample
from Webb and sealing of that specimen, the
transmission of the specimen to the hospital
laboratory, and the receipt of the sample by the
hospital in sealed condition. The toxicology
report, which bears Webb’s name and prisoner
number and the same toxicology number as the
chain of custody form,/2 in turn reveals that
the sample was analyzed within roughly twenty-
four hours after it arrived at the hospital and
that Webb’s urine tested positive for
cannabinoids. Together, these documents establish
that Webb’s sample was delivered to the hospital
in sealed condition, that the hospital laboratory
tested the sample, and that the analysis revealed
Webb’s use of marijuana.

  We regard the two omissions in the documentary
trail as significant, but not so material as to
preclude prison officials from relying on the
documents as evidence of Webb’s marijuana usage.
Notwithstanding the omission of the name of the
technician who tested Webb’s specimen, there is
no reason to doubt that the laboratory actually
analyzed the sample: the toxicology report lays
out the various substances for which Webb’s urine
was screened and the results for each. Similarly,
although the chain of custody form does not
confirm that Webb’s specimen reached the
technician in a sealed condition, the record
gives us no reason to suspect that the specimen
may have been opened and tampered with during the
twenty-four hour period between its arrival at
the hospital on March 12 (at which point we know
that it was still sealed) and its testing on
March 13. The gap in the chain of custody form
and the anonymity of the technician who analyzed
Webb’s sample certainly leave room for the
possibility that the sample was mishandled in
some way; conversely, filling in those omissions
would render that possibility more unlikely and
enhance the reliability of the test results. Yet:

The Federal Constitution does not require
evidence that logically precludes any conclusion
but the one reached by the disciplinary board.
Instead, due process in this context requires
only that there be some evidence to support the
findings made in the disciplinary hearing.

Hill, 472 U.S. at 457, 105 S. Ct. at 2775; see
also Mackey v. Montrym, 443 U.S. 1, 13, 99 S. Ct.
2612, 2618 (1979); Higgs v. Bland, 888 F.2d 443,
449 (6th Cir. 1989). Absent some affirmative
indication that a mistake may have been made,
e.g. Meeks, 81 F.3d at 721 (prisoner number on
toxicology report did not match petitioner’s
number, another prisoner had same name as
petitioner, and the two prisoners had been
confused before), we cannot say that the
toxicology report and chain of custody form fail
to qualify as "some evidence" from which prison
officials could conclude that Webb had used
marijuana. See United States v. Brown, 136 F.3d
1176, 1182 (7th Cir. 1998) (hypothetical
possibility of tampering does not render evidence
inadmissible, but goes instead to the weight of
the evidence)./3

B.

  When Webb filed this appeal, he was required to
pay a filing fee pursuant to 28 U.S.C. sec.
1915(b), as amended by the Prison Litigation
Reform Act of 1996 ("PLRA"), and this court’s
opinions in Newlin v. Helman, 123 F.3d 429, 437-
38 (7th Cir. 1997), cert. denied, 522 U.S. 1054,
118 S. Ct. 707 (1998), and Thurman v. Gramley, 97
F.3d 185, 187 (7th Cir. 1996). See R.18. In
relevant part, Newlin and Thurman held that
collateral proceedings which do not implicate the
validity of a prisoner’s underlying criminal
sentence constitute civil actions for which fees
must be assessed under the PLRA. Webb asks that
the filing fee be refunded, arguing (with the
support of precedent from other circuits) that
Newlin and Thurman were wrongly decided in this
respect. We recently reached that very conclusion
in Walker v. O’Brien, 216 F.3d 626, 633-37 (7th
Cir. 2000), where we held that the PLRA does not
apply to a petition for a writ of habeas corpus
properly filed under either 28 U.S.C. sec. 2241
or sec. 2254. Webb is therefore entitled to the
refund of his fee.

III.

  Because the decision of prison officials to
revoke 90 days of good time credit has the
support of some evidence, we AFFIRM the judgment of
the district court denying Webb’s petition for a
writ of habeas corpus. As this case does not
constitute a "civil action" for purposes of 28
U.S.C. sec. 1915(b), Webb was not required to pay
a fee in order to file the appeal. The Clerk of
the United States District Court shall therefore
refund the docketing fee that Webb paid in order
to proceed with his appeal. We thank Dean Howard
B. Eisenberg, whom we appointed to brief and
argue this case on Webb’s behalf, for his
excellent service in this appeal, and we commend
both parties for their helpful briefs.


/* We initially decided this case in Webb’s favor
without argument pursuant to Federal Rule of
Appellate Procedure 34(a) and Circuit Rule 34(f)
and remanded the case to the district court for
an evidentiary hearing. See Webb v. Anderson, No.
97-3264, 172 F.3d 54, 1998 WL 870354 (7th Cir.
Dec. 11) (unpublished) (text in Westlaw). We
subsequently granted the State’s petition for
rehearing, vacated our previous order, appointed
counsel for Webb, and set the case for argument.

/1 The district court suggested that the loss of
credits for good time served "probably does not
implicate a liberty interest under Sandin v.
Conner, 515 U.S. 472 [115 S. Ct. 2293] (1995).
R.9, Webb v. Parke, No. 97 C 337, Order at 1.
Here there is no dispute, however, that Indiana
law gives rise to a liberty interest in good time
credits. See Wolff v. McDonnell, 418 U.S. 539,
557, 94 S. Ct. 2963, 2975 (1974); Meeks v.
McBride, 81 F.3d 717, 719 (7th Cir. 1996).
Moreover, we have repeatedly concluded that the
loss of good time credits will support a claim
for the deprivation of due process. See Thomas v.
McCaughtry, 201 F.3d 995, 999 n.4 (7th Cir. 2000);
Sweeney v. Parke, 113 F.3d 716, 718 (7th Cir.
1997); Meeks, 81 F.3d at 719.
/2 Webb suggests that one digit in the sample’s
eleven-character toxicology number may not match
the number reflected on the toxicology report
(Reply Br. at 3), but we disagree. What he (or
his counsel) reads as a "6" we believe to be a
"5," which conforms to the toxicology report. See
R.6 Ex. A3.

/3 We note that in Thompson v. Owens, 889 F.2d 500,
502 (3d Cir. 1989), the Third Circuit held that
a positive toxicology report alone sufficed as
"some evidence" of a prisoner’s drug use without
any additional evidence as to the chain of
custody. We need not, and do not, go that far
here in sustaining the discipline imposed on
Webb. Cf. Bourgeois v. Murphy, 809 P.2d 472, 482
(Idaho 1991) ("when there is no documentation of
the chain of custody to show that that which was
analyzed by the laboratory came from the inmate
in question, there is no test from a legal
standpoint"); Sherer v. State, 668 So.2d 174, 174
(Ala. Crim. App. 1995); Byerly v. Ashley, 825
S.W.2d 286, 288 (Ky. App. 1991), cert. denied,
506 U.S. 934, 113 S. Ct. 364 (1992); see also
Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)
("there must be some indicia of reliability of
the information that forms the basis for prison
disciplinary actions"), citing, inter alia,
Mendoza v. Miller, 779 F.2d 1287, 1295 (7th Cir.
1985), cert. denied, 476 U.S. 1142, 106 S. Ct.
2251 (1986); accord, Viens, supra, 871 F.2d at
1335.
