United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING PETITION FOR WRIT OF HABEAS
J. McKINNEY, JUDGE United States District Court
petition of Kenneth McDavid ("McDavid") for a Writ
of Habeas Corpus challenges a prison disciplinary proceeding,
identified as No. ISF15-08-0151, in which he was found guilty
of possessing a controlled substance. Dkt. No. 1. For the
reasons explained in this Order, McDavid's habeas
petition must be DENIED.
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. Com. Inst. v.
Hill, 472 U.S. 445, 454 (1985). See also, 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).
THE DISCIPLINARY PROCEEDING
31, 2015, Sergeant C. Harder ("Sergeant Harder")
wrote a Report of Conduct (the "Conduct Report"),
charging McDavid with possession of a controlled substance.
Dkt. No. 11, Ex. A. The Conduct Report states:
On 7/31/2015 at approx. 1500 hrs, I Sgt. C. Harder entered 11
North and began a strip on offender Kenneth McDavid #943202
in the A side latrine. During the search, I ordered offender
McDavid to remove his socks. When McDavid removed his left
sock, I clearly observed a small object wrapped in plastic,
leave McDavid's sock and land on the ground directly in
front of me. I picked the object up and could see the item
was orange film like substance inside the plastic. I took the
item to the shift office to photograph the item and found
there to be two small square shaped articles, both orange
colored film like substances within the plastic. The items
were photographed and forwarded to Internal Affairs. Offender
McDavid was identified by state ID.
Id. After being photographed, the items described in
the Conduct Report were taken into evidence. Dkt. No. 11,
was notified of the charge on August 7, 2015, when he
received the Conduct Report and Notice of Disciplinary
Hearing (Screening Report). Dkt. No. 11, Exs. A & E.
McDavid plead not guilty to the charge. Dkt. No. 11, Ex. E.
He indicated that he wished to call Offenders M. Patton and
H. Arhelger as witnesses. Id. McDavid also requested
that a video of the incident, which he claims will show that
he "did not have socks on" in contrast to the
Conduct Report, be considered as physical evidence.
Id. Offender Wilbanks, in the place of Offender
Patton, and Offender Arhelger each submitted statements in
support of McDavid. Dkt. No. 11, Exs. F-G. Offender Carico
also offered a statement supporting McDavid's position.
Dkt. No. 11, Exs. J-K.
August 10, 2015, the Disciplinary Hearing Board reviewed the
video from the date, time, and place of the incident. Dkt.
No. 11, Ex. I. The hearing officer determined that McDavid
would not be permitted to view the video because that would
jeopardize the security of the facility. Id.
However, a statement from disciplinary officer Tomaw
indicated that the video depicted McDavid and Sergeant Harder
in the latrine but noted that "due to the angle it is
unclear as to what transpires in the latrine."
hearing officer conducted a disciplinary hearing on August
11, 2015. Dkt. No. 11, Ex. L. At the hearing, McDavid stated
that he "[g]ot a write up on pants, Told IA. [sic] about
that me and Sgt. Harder having trouble. Sgt. Harder started
to mess with me." Id. The hearing officer found
McDavid guilty of possession of a controlled substance.
Id. In making this determination, the hearing
officer considered staff reports, McDavid's statement,
evidence from witnesses, and additional evidence.
Id. The hearing officer recommended and imposed
sanctions in the form of a written reprimand, loss of phone
privileges, a sixty-day deprivation of earned credit time,
and a suspended credit class demotion. Id.
August 23, 2015, McDavid appealed to the Facility Head, who
denied the appeal on September 9, 2015. Dkt. No. 11, Ex. M.
McDavid appealed to the Final Reviewing Authority, who denied
his appeal on January 11, 2016. Dkt. No. 11, Ex. N. McDavid
finally brought this petition for a Writ of Habeas Corpus,
pursuant to 28 U.S.C. §2254, on June 1, 2016.
petition, McDavid argues that the evidence did not support
the hearing officer's guilty determination in this case
because the video evidence was unclear and because three
witnesses presented ...