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Wemer v. Alvey

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

March 22, 2017

FRANK WEMER, Petitioner,
v.
KATHY ALVEY, [1]Respondent.

          ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS

          Hon. William T. Lawrence, Judge United States District Court

         The petition of Frank Wemer for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. WCC 14-06-0872. For the reasons explained in this Entry, Wemer's habeas petition must be denied.

         Discussion

         A. Overview

         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); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000).

         B. The Disciplinary Proceeding

         On June 30, 2014, Internal Affairs Supervisor Whelan issued a Report of Conduct charging Wemer with violating a state law (gang activity) in violation of Class A-100. The Report of Conduct states:

On 4/23/2014 there was an assault on offender Taulbee, 903125. After reviewing the camera at exactly 8:38:10 pm offender Wemer, Frank 119650 was seen running full speed and tackling offender Taulbee from behind as four other inmates were assaulting offender Taulbee. After Wemer tackled Taulbee the other four inmates continued to collectively hit him while on the ground, until offender Taulbee was able to get away from the aggressors. There is zero tolerance for STG gang Activity, and this behavior is against state law.

         Wemer was notified of the charge on July 3, 2014, when he was served with the Report of Conduct and the Notice of Disciplinary Hearing (Screening Report). The Screening Officer noted that Wemer did not request any witnesses and requested the video and photos for evidence.

         The Hearing Officer conducted a disciplinary hearing on July 24, 2014. The Hearing Officer noted Wemer's statement, “There was 3 pictures. Some people got into it. I'm not telling on no body. I made sure nothing happened to him. I didn't touch him or nothing. It was 5 black people and 1 white dude. I was horseplaying with the dude but then it turned into them fighting. I'm accepting what I did. I did not jump no body. I tackled him horseplaying with him. I did try to get them off the man.” Relying on the Conduct Report, offender statement, and the IA Investigation Report, the Hearing Officer determined that Wemer had violated Code A-100. The Hearing Officer imposed the sanction because of the seriousness, frequency, and nature of the offense, the offender's attitude and demeanor during the hearing, the degree to which the violation disrupted or endangered the security of the facility, and the likelihood of the sanction having a corrective effect of the offender's future behavior.

         Wemer's appeals were denied and he filed the present petition for a writ of habeas corpus.

         C. Analysis

         Wemer challenges the disciplinary action against him arguing that the procedure for identifying him as a Security Threat Group (“STG”) member was not followed, that the Hearing Report was completed improperly, and that the evidence against him was insufficient. The respondent contends that because Wemer did not raise the first two grounds in his administrative appeals, those arguments are procedurally defaulted and that the evidence against Wemer was sufficient.

         1. Proce ...


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