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Florence v. Zatecky

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

November 8, 2016

BURTON FLORENCE, Petitioner,
v.
DUSHAN ZATECKY, Respondent.

          ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Hon. William T. Lawrence, Judge

         The petition of Burton Florence for a writ of habeas corpus challenges a prison disciplinary proceeding, ISR 15-02-0011, in which he was found guilty of possessing a hazardous chemical. For the reasons explained in this entry, Mr. Florence's habeas petition must be denied.

         I. Overview

         Prisoners in Indiana custody may not be deprived of credit time, 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); Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011); 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 February 3, 2015, Lt. R. Marvell wrote a Report of Conduct charging Mr. Florence with possession of any hazardous chemical, offense A-106. Dkt. 10-1. The conduct report states:

I stopped ofd. Florence at the bottom of the steps in F-Block and searched him. Ofd. Florence had just entered the cell house with his supervisor (Chamberlain). Ofd. Florence had a clear trash bag containing work boot[s] and sealed with a knot tied on top. Upon opening the bag and inspecting the boot[s], I found one contained a 12 oz Gatorade bottle with liquid soap, and a roll of black electrical tape. The second boot contained a 20 oz. coke bottle with a clear liquid that ofd. Florence stated was chemicals to clean the ice machine.

Dkt. 10-1. The items found in Mr. Florence's boots were confiscated and entered as evidence. Dkt. Nos. 10-2, 10-3, 10-4, 10-5.

         On February 5, 2015, Mr. Florence was notified of the charge of possession of hazardous chemicals (A-106) and served with a copy of the conduct report and the screening report. Mr. Florence was notified of his rights and pleaded not guilty. Dkt. 10-6. He requested a lay advocate, and one was appointed to him. Mr. Florence requested the following witnesses: S. Krause, Chamberlain, Blauvelt, and Kris Coom [sic]. Id. The witness request for Steve Krause was originally denied because he was not present, but Mr. Krause later submitted a statement. Dkt. Nos. 10-6, 10-9. The witness requests for Chamberlain and Blauvelt were granted. Dkt. Nos. 10-6, 10-8, 10-10. The witness request for Kris Coom [sic] was denied because he was not present. Dkt. 10-6. Mr. Florence also requested a work count letter which was denied because it did not pertain to the case, and he requested a copy of a past grievance against Marvell, which was also denied as not pertaining to the case. Dkt. 10-6.

         On February 9, 2015, a disciplinary hearing was held in case ISR 15-02-0011. Dkt. 10-11. Mr. Florence pleaded not guilty and provided the following statement:

It wasn't authorized. Marvell tried to act like I was concealing. I had it in a transparent bag in my hand. I don't understand. He tried to get them back. I had my headphones with me so I could go back to the house to give them to Mr. Scaife.

Dkt. 10-11.

         The disciplinary hearing officer ("DHO") found Mr. Florence guilty of possession of a hazardous chemical. Id. In making this determination, the DHO considered staff reports, the statement of the offender, evidence from witnesses, and pictures. Id. The DHO also stated: "CR supported by picture evidence and witness statements - Ofd. changed story numerous times. Ofd. freely admits to having all items." Id. Due to the seriousness and frequency/nature of the offense, the offender's attitude and demeanor during the hearing, and the degree to which the violation disrupted/endangered the security of the facility, the DHO imposed the following sanctions: a written reprimand, one year of disciplinary segregation, one year of earned credit time ("ECT") lost, and a demotion from credit class one to credit class three. Id.

         Mr. Florence appealed the disciplinary action to the Facility Head on February 16, 2015. Dkt. 10-12. The Facility Head denied the appeal on February 27, 2015. Dkt. 10-13. Mr. Florence appealed to the Final Reviewing Authority for the Indiana Department of Correction ("IDOC"), who modified his disciplinary conviction to Possession of Unauthorized Property (B-215) and reduced the sanctions to: restricted housing for three months, 90 days' lost ECT, and a demotion from credit class one to credit class two. ...


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