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Bailey v. Butts

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

March 9, 2017

LUCAS BAILEY, Petitioner,
KEITH BUTTS, Respondent.



         This matter is before the Court on pro se Petitioner Lucas Bailey's (“Mr. Bailey”) Petition for Writ of Habeas Corpus challenging a prison disciplinary proceeding identified as NCF 16-04-0263, which resulted in the loss of ninety days of good-time credit and a demotion in credit class. (Filing No. 1.) Mr. Bailey raises three claims in his Petition, one of which is dispositive. Mr. Bailey maintains that he was denied due process because his requested witnesses were not permitted to testify at his disciplinary hearing; they instead submitted written statements. For the reasons explained in this Entry, the Court concludes that Mr. Bailey was denied due process and his Petition for habeas corpus is granted.

         I. OVERVIEW

         “Inmates have a due process right to call witnesses at their disciplinary hearings when doing so would be consistent with institutional safety and correctional goals.” Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003) (citing Wolff v. McDonnell, 418 U.S. 539, 566 (1974)). However, “prisoners do not have the right to call witnesses whose testimony would be irrelevant, repetitive, or unnecessary.” Pannell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002). As acknowledged by the Respondent, Mr. Bailey requested four witnesses prior to his disciplinary proceeding, each of whom provided a written statement prior to the challenged disciplinary proceeding in lieu of live testimony at the hearing.

         In the initial round of briefing regarding Mr. Bailey's claim, the Respondent offered two reasons why the proceedings did not violate Mr. Bailey's due process rights. (SeeFiling No. 11 at 6-8.) The Court explained in its Entry dated February 9, 2017 (Filing No. 14), why neither of those two reasons were sufficient. First, the Court noted that the Seventh Circuit has repeatedly rejected the argument that written witness statements are an adequate substitute for live testimony. See Whitlock v. Johnson, 153 F.3d 380, 388 (7th Cir. 1998) (“We are . . . unconvinced by the prison's assertion that its policy of interviewing requested witnesses and summarizing their testimony in an unsworn report is a legitimate means of ‘calling a witness' even when live testimony would be feasible.”); see also Doan v. Buss, 82 Fed.Appx. 168, 170-71 (7th Cir. 2003) (rejecting the contention that “under Wolff oral testimony is not required as long as written statements are obtained”); Ashby v. Davis, 82 Fed.Appx. 467, 471 (7th Cir. 2003) (holding that “[t]he submission of a written [witness] statement is not by itself a valid reason for not appearing, ” and explaining that “[l]ive testimony is the presumption absent a valid reason for proceeding differently”).

         The Respondent's second argument was also rejected. The Court explained that Respondent's conclusory assertion that permitting live testimony from other inmates “would have threatened the security of the facility and put the offenders and officers at risk of harm, ” (Filing No. 11 at 8), was insufficient. While safety concerns are a valid justification for denying an inmate the ability to present live witnesses, see Wolff, 418 U.S. at 566, a conclusory assertion that security concerns were present essentially forecloses judicial review of whether the petitioner's due process rights were infringed, see Ponte v. Real, 471 U.S. 491, 498-99 (1985); see also Hayes v. Walker, 555 F.2d 625, 630 (7th Cir. 1977) (“If we were to allow broad unsupported findings as were offered in the present case to support the [exclusion of the prisoner's witnesses], a prisoner's limited right to call witnesses could be arbitrarily denied in any case and thereby be rendered meaningless.”). Therefore, the Court made clear that it was the Respondent's burden to provide a “justification”- not a conclusion-for the denial of witnesses. Ponte, 471 U.S. at 499; see Wilson v. Davis, 102 Fed.Appx. 37, 38 (7th Cir. 2004) (“The burden is on the state to offer a rational explanation for the denial of an inmate's request for witnesses.”).

         In light of the deficiencies in the Respondent's submission, the Court gave the Respondent an additional period of time in which to provide the required justification for denying Mr. Bailey the ability to call live witnesses during the challenged disciplinary proceeding. The Court made clear that, in providing the required justification, the Respondent should ensure that the justification is sufficiently particularized-that it represents “a determination . . . made on a case-by-case basis that requested witnesses pose institutional problems.” Forbes v. Trigg, 976 F.2d 308, 317 (7th Cir. 1992); see Hayes, 555 F.2d at 630 (rejecting a prison's justification for excluding witnesses because it was “only broad conclusory findings of possible hazard both to potential witnesses and to institutional security which applied to all of the proposed witnesses on plaintiff's list”).

         The Respondent submitted a supplemental brief and evidence (Filing No. 15), and Mr. Bailey submitted a reply brief (Filing No. 17).

         II. ANALYSIS

         A. Procedural Default

         In the Respondent's supplemental brief, he argues for the first time that Mr. Bailey's witness claim is procedurally defaulted because he did not raise it during the administrative appeals process (Filing No. 15 at 1-2). The Respondent is correct that, to succeed on a petition for a writ of habeas corpus, a petitioner must first “exhaust[] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Since “Indiana does not provide judicial review of decisions by prison administrative bodies, . . . the exhaustion requirement in 28 U.S.C. § 2254(b) is satisfied by pursuing all administrative remedies.” Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002). However, “[p]rocedural default is an affirmative defense and can be waived.” Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). “As with any other right or defense, the State will waive procedural default by intentionally relinquishing its right to assert that defense, either explicitly or implicitly.” Blackmon v. Williams, 823 F.3d 1088, 1100 (7th Cir. 2016) (citation and quotation marks omitted).

         Here, the Respondent explicitly waived its reliance on Mr. Bailey's alleged failure to exhaust and the consequential procedural default in his initial return to the Court's show cause order. Specifically, the Respondent stated that Mr. Bailey “exhausted his available administrative appeals with regard to the issues raised in the Petition, ” and then went on to address the merits of this claim. (Filing No. 11 at 2.) Accordingly, the Respondent has waived its affirmative defense that this claim is procedurally defaulted.

         The Court notes, however, that even if this defense was not waived, the Court would reject it. This is because the Respondent has failed to submit sufficient evidence to refute Mr. Bailey's contention that he raised this issue in his final administrative appeal. The Court was presented with only the decision from the final appeal-which does not settle the matter one way or another-and thus it is not clear whether or not this issue was raised in the final appeal. For this additional reason, Mr. Bailey's claim is not deemed defaulted and the Court will address it on the merits.

         B. ...

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