United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND
DIRECTING ENTRY OF FINAL JUDGMENT
J. McKINNEY, JUDGE, United States District Court Southern
District of Indiana
petition of Jerry Smith for a writ of habeas corpus
challenges a prison disciplinary proceeding, WVE 15-12-0045,
in which he was found guilty of being under the influence of
intoxicants. For the reasons explained in this entry, Mr.
Smith's habeas petition must be GRANTED.
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).
The Disciplinary Proceeding
December 8, 2015, Correctional Officer Dugger issued a Report
of Conduct charging Mr. Smith with “disorderly
conduct” in violation of Code B-236. Dkt. 13-1. The
Report of Conduct filed with the Respondent's return has
that charge crossed out and a charge of “under the
influence/intoxicants” written in. Id. The
Code number was also crossed out and changed to B-231.
Id. The Report of Conduct states:
On 12-8-2015, at approximately 11:35 PM, I, Officer Dugger,
witnessed Offender Smith, Jerry (#129911), behave in a
disorderly fashion in FHU Left Wing Dayroom. Offender Smith
was ordered to place his wrists into mechanical restraints
but continued to wash, what appeared to be a redish-orange
[sic] liquid that smelled of intoxicants, out of cups in his
cell. Offender Smith was escorted to the showers in FHU while
a search of his cell was conducted, Offender Smith proceeded
to yell obscenities and other vulgar language as well as
claiming this officer was “racist”. Offender
Smith appeared to be and acknowledged being intoxicated.
Frank One was called to FHU Left Wing. Offender Smith resides
in FHU cell 112.
Dkt. 13-1, p. 1.
Tinkle and Officer Vanhorn submitted collaborative witness
statements. Dkt. 13-1, pp. 2-3.
Smith was notified of the charge on December 10, 2015, when
he was served with the Report of Conduct and the Notice of
Disciplinary Hearing (Screening Report). The Screening
Officer noted that Mr. Smith would obtain a statement from
Offender Conteras and requested a statement from Sergeant
Vrzina. Dkt. 13-2. Mr. Smith also requested video to
“show I steped (sic) out and talked to Ofc. Tinkle why
is he shutting my door. I have been set up before at
Pendleton by staff. It will show I was talking with Ofc.
Dugger 5 min. later Ofc. Dugger comes back to our cell and
states then after what I heard I have to write you up.”
Hearing Officer conducted a disciplinary hearing on December
28, 2015. Dkt. 13-9. The Hearing Officer noted Mr.
Smith's statement that “I wasn't washing
anything out of the cup & I didn't acknowledge I was
drinking. I didn't do this- my bunkie took it like a
man.” Id. Cellmate Keith Ellis provided a
statement: “On 12-8-15 at 11:35 p.m. I had a grievance
with C.O. Dugger. However I was intoxicated and beligerant
(sic). This made the C.O. take his anger out on my cell (sic)
instead of me. My bunkie wasn't drinking and does not
drink. He even requested a breathalyzer. He was denied. The
Sgt. then told C.O. Dugger to write us both up and we can
sort it out at DHB.” Dkt. 13-8.
on the Report of Conduct, the statement of the offender, and
witness statements, the Hearing Officer determined that Mr.
Smith had violated Code B-231 (under the
influence/intoxicants). The sanctions imposed included a
written reprimand, a one month loss of commissary privileges,
and the deprivation of 45 days of earned credit time. The
Hearing Officer imposed the sanctions because of the
seriousness of the offense and the likelihood of the sanction
having a corrective effect on the offender's future
Smith's appeals were denied. This habeas action followed.