United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING PETITION FOR WRIT OF HABEAS
Jane Magnus-Stinson, United States District Court Chief Judge
petition of Derek Paolucci for a writ of habeas corpus
challenges a prison disciplinary proceeding identified as No.
NCN-16-11-012. For the reasons explained in this Entry,
Paolucci's habeas petition must be granted.
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).
The Disciplinary Proceeding
evening of August 24, 2016, Paolucci, who suffers from fecal
incontinence, unexpectedly defecated on himself. He removed
his soiled clothing and placed it in a plastic bag, stood in
front of his cell door, and showed his back side to Officer
Glaser in an attempt to prove to Glaser that he needed a
shower. Glaser directed him to turn around, looked down, and
said, “All I see is that.” Paolucci believed
Glaser to be referring to his penis and felt harassed by
Glaser's statement. He therefore filed a PREA report
regarding the incident. Compliance Coordinator K. Wigal, who
investigated the incident, interviewed both Paolucci and his
cellmate. In his interview report with Paolucci, Wigal stated
that “Paolucci said at the time Glaser made the comment
he received it as being sexual in nature but after discussing
the incident with IA he now considered it possible it was not
a sexually harassing, demeaning comment.”
Paolucci's cellmate stated during his interview that he
observed Glaser point downwards toward Paolucci and say
“All I see is that.” Wigal ultimately found
Paolucci's allegation of harassment to be unfounded.
November 16, 2016, Wigal issued a Report of Conduct charging
Paolucci with threatening (false accusation) in violation of
Code B-213. The Report of Conduct states:
On 11/16/16 at approximately 0700, I Compliance Coordinator K
Wigal was conducting a routine “Notification of Outcome
of Allegation” following the conclusion into the
investigation of the allegation of Sexual Harassment filed by
Offender Paolucci, Derek #171384 against Officer Glaser. The
investigation outcome was that the allegation was unfounded,
meaning that the investigation determined that the event
described in the allegation did not occur and thus, Offender
Paolucci had filed a false report that resulted in an
investigation being completed. Offender Paolucci was informed
he would be receiving this conduct report.
was notified of the charge on November 17, 2016, when he was
served with the Report of Conduct and the Notice of
Disciplinary Hearing (Screening Report). The Screening
Officer noted that Paolucci requested statements from two
“original” witnesses and noted that Paolucci
would bring paperwork.
Hearing Officer conducted a disciplinary hearing on November
29, 2016. The Hearing Officer noted Paolucci's statement,
“I filed an informal complaint about this. The officer
did make me feel harassed. I did not feel that it was
untrue.” Based on the evidence, the Hearing Officer
determined that Paolucci had violated Code B-213. The
sanctions imposed included a commissary and phone
restriction, the deprivation of 90 days of earned credit
time, and the demotion from credit class I to credit class
appeals were denied and he filed the present petition for a
writ of habeas corpus.
challenges the disciplinary action against him arguing that
he was denied an impartial decision-maker, that he was denied
witnesses and evidence, that his First Amendment rights were
violated, and that there was not “some” evidence
to sustain the disciplinary conviction. Because the Court
agrees with Paolucci that there was not “some”
evidence to ...