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Bey v. Zatecky

United States District Court, S.D. Indiana, Indianapolis Division

January 6, 2015

DANA C. FULLER BEY, JR., Petitioner,
v.
DUSHAN ZATECKY, Respondent.

ENTRY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

JANE MAGNUS-STINSON, District Judge.

The petition of Dana C. Fuller-Bey, Jr. for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. ISR XX-XX-XXXX. For the reasons explained in this Entry, Mr. Fuller-Bey's habeas petition must be GRANTED.

I. Overview

Prisoners in Indiana custody may not be deprived of good-time credits, Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004), or of credit-earning class, Montgomery v. Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001), without due process. The due process requirement is satisfied with the issuance of advance written notice of the charges, a limited opportunity to present evidence to an impartial decision maker, a written statement articulating the reasons for the disciplinary action and the evidence justifying it, and "some evidence in the record" to support the finding of guilt. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); Wolff v. McDonnell, 418 U.S. 539, 570-71 (1974); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000).

II. The Disciplinary Proceeding

On November 6, 2013, Correctional Officer McClish wrote a conduct report that charged Mr. Fuller-Bey with class B offense 231, possession of intoxicants. The conduct report states:

At roughly 12:30 AM Ofc. McClish was doing a routine walk to wake up kitchen workers when he went to E1 203 to wake up [O]ffender Fuller #978697. Upon opening door smelled what appeared to be brew. Notified Ck. Pt. 2 [O]fc. Warner of this. Ofc. Warner came over to E-Bldg and preformed (sic) a walk thru and also smelled brew around E1-203. Ofc. Warner then notified unit 51 and Lt. Smith. Both advised that we had to wait until offender was out for breakfast. Breakfast line went out at 4:16 am and Ofc. McClish notified Ofc. Warner that both offenders were gone. Ofc. Warner came to controll (sic) room as Ofc. McClish went to check cell. Found property box under bed opened it and smelled brew. Check box and found 2 bags of brew cooking, orange in color with oranges inside and burping device, and 2 pieces of rubber tubing approx. 2ft in length, and shampoo bottle with liquad (sic) and 6 lbs of sugar.
Officer Warner also provided a statement:
On 11-6-13 at 4:27 AM I, Ofc. D. Warner, observe[d] Ofc. P. McClish remove grey property box from E1-203. The property box contained 2 bags of orange homemade intoxicant, 2-2FT sections of white hose, and homemade burping device. The items were wrapped in white blanket. E1-203 is occupied by OFN. Dana Fuller # 978697 [and] Ellis, Michael #922017.

On November 13, 2013, Mr. Fuller-Bey was notified of the charge and served with the conduct report and the notice of disciplinary hearing "screening report." Mr. Fuller-Bey was notified of his rights, pled not guilty, and requested the appointment of a lay advocate. During the screening, Mr. Fuller-Bey did not request any witnesses or physical evidence. After screening, however, Mr. Fuller-Bey submitted a written request for "the kitchen countletter to show I was at work on the day the alleged incident occurred." This request was denied because "[i]t does not matter if you were in the room or at work. It was found in your housing area." Ex. E.

The hearing officer conducted a disciplinary hearing in No. ISR XX-XX-XXXX on November 15, 2013, and found Mr. Fuller-Bey guilty of the charge of possession of intoxicants. At the hearing, Mr. Fuller-Bey provided a written statement asserting that he had no knowledge of the "brew" being in the cell. He stated that he did not have a property box assigned to him on that day. The intoxicants were found in his cellmate's closed, locked property box. Mr. Fuller-Bey admitted to smelling a faint scent of oranges when he woke up that morning and seeing orange peels in the trash, so he assumed that is where the smell came from. When he left the cell for his work assignment, his cellmate was asleep. Mr. Fuller-Bey works from 1 a.m. until 8:30 a.m. and stays up until noon and then goes to sleep. He does not drink nor does he need money, he was conduct charge free for a year and a half, he has had a job for about two years, he has been in an apprenticeship program through Aramark, attends religious services regularly, has regular visitors, and got married July 10. He stated that he does not know what his cellmate does during the day while he sleeps and when he wakes up for work, his cellmate is asleep. He stated that it would make no sense for him to involve himself with making intoxicants. If he had known that "brew" was in his cell, he would have said something to his cellmate. Ex. G-2, dkt. 11-7.

In making the guilty determination, the hearing officer relied on the conduct report, the officer's witness statement, the pictures, and Mr. Fuller-Bey's written statement at the hearing. The hearing officer imposed the following sanctions: a written reprimand, a 30 day loss of telephone and commissary privileges, a suspended 3 months in disciplinary segregation, and a 90 day earned credit time deprivation. The sanctions were imposed because of the seriousness and nature of the offense and the degree to which the violation disrupted and endangered the security of the facility.

Mr. Fuller-Bey's appeals through the administrative process were denied. On appeal, he submitted a statement from his cellmate, Mr. Ellis, dated November 20, 2013, which confirmed that the intoxicants belonged to Mr. Ellis and that Mr. Fuller-Bey did not know about the intoxicants. Nonetheless, the guilty finding was affirmed because "[a]ccording to policy this item was in your possession because it was in your living quarters." Ex. H-8, dkt. ...


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