United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS
William T. Lawrence, Judge
petition of Don Bennett for a writ of habeas corpus
challenges a prison disciplinary proceeding identified as No.
IYC 15-07-0057. For the reasons explained in this Entry, Don
Bennett's habeas petition must be denied.
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); Piggie v.
Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Webb v.
Anderson, 224 F.3d 649, 652 (7th Cir. 2000).
The Disciplinary Proceeding
1, 2015, Sgt. D. Tomaw wrote a conduct report that charged
Bennett with assault and battery. The conduct report states:
On 7-1-15 at approx.. 3:30 pm I Sgt. D. Tomaw stepped into
the shift office to take care of paperwork. When I was in the
shift office Offender Bennett, Don #190071 West L-37L was in
the office getting pictures taken of his injuries that he
shown to have from his facial region. I asked the offender to
step outside where I conducted questioning of the offender to
find out what happened. The offender claimed he got
‘mouthy' to an offender, who he refused to give a
name. The offender went on to state that during the night
around the times 9pm to 12 am the offender asked the
individual to step into his room of West L-37L, once he done
so the two offenders began to have an altercation in the
cell. Offender Bennet stated that he received the worst of
the altercation, once the two were done the two offender
shook hands and it was over. I advised the offender that he
was in violation of a 212-B and he would be receiving a
conduct report. The offender was then placed in medical
restraints and escorted to HUS.
3, 2015, Bennett was notified of the charge and served with
the conduct report and the notice of disciplinary hearing
“screening report.” Bennett was notified of his
rights, pled not guilty, and did not request the appointment
of a lay advocate. Bennett did not request any witnesses or
physical evidence. [dkt. 7-2].
hearing officer conducted a disciplinary hearing on July 15,
2015. Bennett made the following statement “I'm not
guilty. Sgt. Tomaw wrote me up for 212 only after he
wouldn't accept the ‘true story' of what
happened. I told Sgt. Tomaw that I was standing on top of the
property boxes, slipped and fell and hit my face - causing
the injury not from an altercation with an offender.”
The hearing officer found Bennett guilty of the charge of
assault and battery. [dkt. 7-3].
making the guilty determination, the hearing officer relied
on the conduct report and the offender's statement. The
following sanctions were approved: written reprimand -
“do not stand on unsteady items, ” two weeks of
disciplinary segregation, a 90-day earned credit time
deprivation, and a demotion from credit class 1 to credit
class 2, suspended. The sanctions were imposed because of the
likelihood of the sanctions of having a corrective effect on
the offender's future behavior.
alleges the following errors: 1) the evidence is insufficient
to support a guilty finding; and 2) there was a discrepancy
in the date of the incident on the report of conduct.
However, the Court agrees that Bennett failed to exhaust his
administrative remedies. In Indiana, only the issues raised
in a timely appeal to the Facility Head and then to the
Indiana Department of Correction Appeals Review Officer or
Final Reviewing Authority may be raised in a subsequent
Petition for Writ of Habeas Corpus. See 28 U.S.C.
§ 2254(b)(1)(A); Eads v. Hanks, 280 F.3d 728,
729 (7th Cir. 2002); Moffat v. Broyles, 288 F.3d
978, 981 (7th Cir. 2002). The respondent argues that because
the petitioner failed to exhaust the administrative appeals
process regarding issue two, no relief can be given under the
habeas corpus doctrine. [dkt. 7-4].
petitioner did not file a reply brief. Because the undisputed
record reflects that Bennett failed to timely exhaust his
available administrative remedies before filing this action,
the respondent's ...