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Lazur v. Smith

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

July 6, 2015

RICHARD LAZUR, Petitioner,
v.
BRIAN SMITH, Respondent.

ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS

WILLIAM T. LAWRENCE, District Judge.

The petition of Richard Lazur for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. IYC XX-XX-XXXX. For the reasons explained in this Entry, Lazur's habeas petition must be denied.

Discussion

A. Standard

Prisoners in Indiana custody may not be deprived of good-time credits, Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004) (per curiam), 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).

B. The Disciplinary Hearing

On February 14, 2014, Sergeant Z. Williams wrote a Report of Conduct that charged Lazur with class A offense 106A, Possession of Dangerous/Deadly Weapon. The Conduct Report states:

On 02/13/2014 I, Sergeant Z. Williams, conducted a targeted search of cell HUWMI-2 along with Officer Grantham at approximately 10:00 PM. During the search I discovered Green leafy substance wrapped in paper. The green leafy substance was discovered under the bottom bunk inside the lip of the corner of the bunk. I also discovered that there were several screws missing from the heater vent in the cell. I used broken toenail clippers which were found under Lazur, Richard #171329 (M1-2U) mattress to pry off the plate on the heater vent and located inside was a sock that contained bleach & (24) twenty-four "AAA batteries". Located on the floor in the heater vent was a Kitchen Knife. The Knife did not have any dust on it; therefore, I knew that it had not been in the vent very long. I questioned Offender Lazur, R. #171329 about the Knife and contraband discovered in his cell and he said, "Williams I had no clue anything was in there." "Its not mine." While questioning Offender Lazur he would not make eye contact and constantly looked away. He was given a Notice of Confiscated Property form.

Sergeant Williams included with the Conduct Report a field test examination report that showed the leafy substance tested positive for marijuana, and a maintenance work order request regarding the plate on the heater vent. He also attached a photograph of the items found in Lazur's cell.

Officer Grantham submitted a separate written statement regarding the search of Lazur's cell. That statement was:

On 2/13/14 at approximately 10:00 P.M., I, Officer Grantham-Eads, assisted Sergeant Z. Williams with conducting a targeted search of HUW-MI-2 after Sgt. Z. Williams observed Offender Lazur, Richard #171329 of M1-2U acting suspicious and nervous in the dayroom. Upon entering the cell, Sgt. Z. Williams and I began to check the bunk area, whereupon he discovered a small folded piece of cardboard folded with marijuana hidden inside. The piece of cardboard was discovered hidden underneath the bunk in the bottom front corner. Continuing our search, we noticed that the heating vent to the left and behind the bunk appeared to be missing two screws and seemed loose. Sgt. Z. Williams inspected the outside of the vent with his flashlight and noticed what appeared to be a stuffed sock concealed inside the vent. Working on the vent cover, we were able to loosen the remaining screw with our hands and Sgt. Williams pried away the cover, revealing the sock hidden inside. Inside the sock was one small Ziploc and one large, full Ziploc of powdered bleach, along with 24 AAA batteries. On the floor of the heating vent was a knife, approximately seven inches in length. Sgt. Z. Williams and I then exited the cell with the heating vent cover and contraband, and Sgt. Z. Williams placed a maintenance request for the heating vent cover to be reinstalled. Both offenders residing in the cell were written up and given confiscation slips, which they refused to sign. Offender Deaton, J. #102378 crumpled his up and threw it in the toilet when Sgt. Z. Williams handed it to him.

On February 22, 2014, Lazur was notified of the charge of Possession of Dangerous/Deadly Weapon when he was served with the Conduct Report and the Notice of Disciplinary Hearing (Screening Report). Lazur was notified of his rights, pled not guilty and requested the appointment of a lay advocate. He indicated he wished to call offenders Richard Deaton and Jerry Stuart, as well as Officer Stanback, as witnesses. For physical evidence he requested the knife and the maintenance record to show whether a work order was turned in on the vent. Offender Kenneth Taylor agreed to be Lazur's lay advocate.

Offender Deaton provided a written statement that said he and Lazur had no idea that any of the things were in their room. Offender Stuart's statement was that he owned the items found in Lazur's cell and that he put the items in the vent when Lazur and Deaton weren't there and without their knowledge. Officer Stanback provided a written statement that said he did not have any knowledge of this situation. An additional written statement was obtained from Officer Glenn, who stated that he witnessed Offender Stuart telling the hearing officer, Sergeant Feldkamp, that Stuart had hidden a weapon and controlled substance in Lazur's and Deaton's cell two to three weeks before the items were found.

The hearing date initially set for February 28, 2014, was postponed so that the hearing officer could review a video and other evidence to verify the witness's statements. The hearing officer determined that Lazur would not be permitted to view the video because that would jeopardize the safety and security of the facility. The hearing officer provided a written summary of the video, which he viewed to ascertain activity outside Lazur's cell on February 13, 2014, the date of the search that led to the discovery of the knife ...


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