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Dewald v. Superintendent

United States District Court, N.D. Indiana, Hammond Division

September 19, 2016

BART DEWALD, Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          JAMES T. MOODY JUDGE UNITED STATES DISTRICT COURT

         Bart Dewald, a pro se prisoner, filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a prison disciplinary proceeding (ISP 14-02-0317) held on March 24, 2014. (DE # 3.) There, he was found guilty of use of an unauthorized controlled substance in violation of Code B-202 and sanctioned with the loss of 60 days earned credit time and a demotion in credit class by a hearing officer at the Indiana State Prison. (Id.) The charge was initiated on March 17, 2014, when Internal Affairs Urinalysis Coordinator W. Parnell wrote a conduct report:

On 3-17-14 the test results from the Redwood Toxicology Laboratory were received by the Internal Affairs Department at the Indiana State Prison. While looking through the test results offender Bart Dewald #174244 had a positive result for Marijuana (THC). On 3-7-14 Offender Dewald provided a urine specimen for the Offender Urinalysis Program. Redwood Laboratory found the seal sealed on the specimen bottle. This specimen was sealed in front of offender Dewald by W. Parnell, the administrator of the test.
Note: According to Corizon Medical Services offender Dewalt was/is not on any medication at the time that would test positive for the above drug.
The restitution for this drug test is $17.28 in accordance with the Department's Administrative Procedures for policy 01-02-107.
$15.00 for laboratory fees
$2.28 for field test
Total of $17.28.

(DE # 7-1.)

         On March 21, 2014, Dewald was formally notified of the charge and given a copy of the conduct report. (DE # 7-5.) He pled not guilty, did not request the assistance of a lay advocate and did not request any physical evidence or seek to call any witnesses. (Id.) A disciplinary hearing was conducted on March 24, 2014, where Dewald stated, “compared to last test - the numbers are lower. I don't see how I can be charged when it's not out of my system. Check the previous test.” (DE # 7-6.) Relying on the staff reports and the test results, the hearing officer found Dewald guilty of use of an unauthorized controlled substance, in violation of Code B-202. (Id.) Dewald appealed to the final reviewing authority, but his appeal was denied. (DE # 7-9.)

         When prisoners lose earned time credits in a prison disciplinary hearing, they are entitled to certain protections under the Due Process Clause: (1) advance written notice of the charges; (2) an opportunity to be heard before an impartial decision maker; (3) an opportunity to call witnesses and present documentary evidence in defense when consistent with institutional safety and correctional goals; and (4) a written statement by a fact finder of evidence relied on and the reasons for the disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 563 (1974). To satisfy due process, there must also be “some evidence” to support the hearing officer's decision. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985).

         Dewald raises four issues in his petition: (1) whether he was denied the right to present exculpatory evidence; (2) whether he was given the right to be heard; (3) whether the evidence supports the decision; (4) whether Dewald had a fair and impartial decision maker.

         First, Mr. Dewald complains that he was denied the right to present exculpatory evidence. At the hearing, Mr. Dewald argued that he tested positive for THC in the instant test only because of residual THC from previous use. The hearing officer denied his request to admit that previous test. A prisoner has a limited right to present witnesses and evidence in his defense, consistent with correctional goals and safety. Wolff, 418 U.S. at 566. A hearing officer has considerable discretion with respect to witness and evidence requests, and may deny requests that threaten institutional safety or are irrelevant, repetitive, or unnecessary. Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003). Furthermore, due process only requires access to witnesses and evidence that are exculpatory. Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). “Exculpatory” in this context means evidence that “directly undermines the reliability of the evidence in the record pointing to [the prisoner's] guilt.” Meeks v. McBride, 81 F.3d 717, 721 (7th Cir. 1996). The denial of the right to present evidence will be considered harmless, unless the prisoner shows that the evidence could have aided his defense. See Jones v. Cross, 637 F.3d 841, 847 (7th Cir. 2011).

         Here, Dewald was not denied his right to present exculpatory evidence. The previous test result was not dispositive to the question of whether he tested positive for THC in this case. The fact that Dewald tested positive for THC in February does not exculpate him in testing positive in March. The fact remains that Dewald tested positive for THC. This is true with or without the February drug test results. ...


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