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Orr v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

August 29, 2014

MICHAEL ORR, Petitioner,
v.
SUPERINTENDENT, Respondent.

OPINION AND ORDER

PHILIP P. SIMON, District Judge.

Michael Orr, a pro se prisoner, filed a habeas petition pursuant to 28 U.S.C. ยง 2254 challenging a prison disciplinary proceeding in which he was found guilty of battery with a deadly weapon. (DE 5-4.) The charge was based on a conduct report written by Internal Affairs Officer R. Hough. Here's what it said:

On December 15, 2012 Offender Orr, Michael 133175 did engage in a fight with another Offender. This fight involved use of weapons and both men did receive stab/slash like injuries.
For additional information see Report of Investigation 12-ISP-0242

(DE 5-1.) A photo of the weapons that were recovered was included with the conduct report. ( Id. at 2.) On the same date, Officer Hough also prepared a report of investigation providing further detail about the incident:

On December 15, 2012 Offender Michael Orr 133175 was locked in a shower with another offender. During their time secured in the shower, where no other Offender was, both men suffered stab wounds.
The altercation was witnessed by Officer S. Brown who saw the two men striking one another. Following the fight both men surrendered their respective weapons.
Injuries were sustained by both men which resulted in Offender Velez requiring medical attention from MSU.
FOR ADDITIONAL INFORMATION SEE CONFIDENTIAL REPORT OF INVESTIGATION 12-ISP-0242.

(DE 5-2.) Orr was originally found guilty, but he appealed, and based on a procedural error, the facility head remanded the case for a new hearing.[1] ( See DE 5-7.)

Orr was again formally notified of the charge a couple months later. (DE 5-3.) He pled not guilty and requested the assistance of a lay advocate. (DE 5-3.) He did not request any witness statements, but did request several pieces of physical evidence: 1) information about Officer Brown's employment status; 2) any medical records from the incident; 3) transcripts of the interviews conducted by the internal affairs officer; 4) any photos that were taken; 5) surveillance video to show that Officer Brown acted unprofessionally during this incident; 6) Orr's records detailing his segregation and recreation status; and 7) a report of conduct authored by Officer Brown. ( Id. at 1-2.) Prior to the hearing, the hearing officer obtained a statement from Officer Brown. Here is Brown's sparse account of what took place that day:

I OFC S. Brown was asked by Offender Orr and Offender Velez to be put in the shower together. Upon [d]oing so they started fighting each other and after shook hands and hugged. Neither offender was on self rec nor the same for rec partners. They both handed me their shanks with their right hand. End of statement.

(DE 5-4 at 4.) The hearing officer also tried to obtain the video evidence per Orr's request, but was unable to view it noting, "[s]urveillance is no longer available for this incident." (DE 5-4 at 5.)

After a postponement, a hearing was held on March 1, 2013. (DE 5-4 at 1.) Orr made the following statement in his defense: "IC XX-XX-X-X is not criminal law for battery with deadly weapon. Camera evidence in the previous [hearing] was denied to me. I'm unable to show you Officer Brown's action." ( Id. ) Based on the evidence the ...


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