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Fleming v. Superintendent

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

March 24, 2017

MITCHELL FLEMING, Petitioner,
v.
SUPERINTENDENT, Respondent.

          ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS

          Hon. William T. Lawrence, Judge

         The petition of Mitchell Fleming for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. NCF 16-04-0180. For the reasons explained in this Entry, Fleming'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 April 18, 2016, correctional officer Groce wrote a conduct report charging Fleming with (B-202) possession or use of a controlled substance. The conduct report states that the incident occurred on April 18, 2016 at approximately 9:30AM. The conduct report goes on to state:

At the above date and approximate time, I Officer Groce began a shakedown of bunk 120 in C3 along with assistance from CM Page. I located a white packet underneath the offender's clothing inside his gray property box. The package contained a white powdered substance that was later tested and identified by Internal Affairs as 14.5 grams of cocaine. Offender was notified of conduct report and then escorted to segregation pending CAB. EOR

         The conduct report was later amended to include a statement that offender's “[b]ehavior is not related to [mental health] symptoms.” A photo of the cocaine, drug test, and evidence record was included with the conduct report.

         On April 20, 2016, Fleming was notified of the charge of B-202 possession or use of a controlled substance. Fleming was notified of his rights and pleaded not guilty. He waived 24 hours' advance notice of the disciplinary hearing. Fleming requested a lay advocate, and an advocate was later appointed. He requested a witness-the offender in cell/bunk C3-121. The offender in cell/bunk C3-121, Earl Sherman, provided a witness statement: “I saw the shake down but have no clue what he had.” An additional witness statement was provided by M. Page:

On the above date, I CM Page was assisting CO Groce with a shake down of bunk C3-120. CO Groce located a white packet underneath clothing in the offender's property box. The content was a white powder substance which later tested positive for cocaine by IA. The amount equaled 14.5 grams of cocaine.

         On April 21, 2016, a hearing was held in disciplinary case NCF 16-04-0180. Fleming pleaded not guilty and gave the following statement:

I cleaned out my box on Monday, I put my property on my bed and went to CAB when I got back they were going through my box. Ms. Page was going through my box when I standing there. The Sgt. said they found it under my mat. All I had in my gray box was books, totes, papers, folders but no clothes. I don't know where it was found, I do have milk tubes and that is what if MH was consulted was found in but it was not mine.

         The DHO relied on the staff report, the offender's statement, and the photo evidence in concluding that Fleming was guilty of possession or use of a controlled substance. Based on the seriousness, frequency, and nature of the offense, as well as the degree to which the violation disrupted/endangered the security of the facility, the DHO sanctioned Fleming with: disciplinary segregation (time served), 30 days' lost commissary and phone privileges, 90 days' lost earned credit time, and a demotion from credit class one to credit class two. The disciplinary hearing report was later amended to note that Fleming was already in credit ...


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