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Smith v. Brown

United States District Court, S.D. Indiana, Terre Haute Division

April 14, 2017

JERRY SMITH, Petitioner,
DICK BROWN Superintendent, Respondent.


          LARRY J. McKINNEY, JUDGE, United States District Court Southern District of Indiana

          The 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.

         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 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.

         Officer Tinkle and Officer Vanhorn submitted collaborative witness statements. Dkt. 13-1, pp. 2-3.

         Mr. 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.” Id.

         The 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.

         Relying 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 behavior.

         Mr. Smith's appeals were denied. This habeas action followed.

         III. ...

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