United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DIRECTING ENTRY OF FINAL JUDGMENT
William T. Lawrence, United States District Judge.
petition of Kenneth McDavid for a writ of habeas corpus
challenges a prison disciplinary proceeding, ISF 15-08-0321,
in which he was found guilty of threatening. For the reasons
explained in this entry, Mr. McDavid's habeas petition
must be denied.
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
August 7, 2015, Lieutenant Criss wrote a Report of Conduct in
case ISF 15-08-0321, charging Mr. McDavid with offense B-213,
threatening. The conduct report states:
On 8/7/2015 at approx. 1500 PM I Lt. R. Criss while talking
to Offender Kenneth McDavid #943202 was informed of the
following. He stated that Sgt. Hardee was in his eyes
singling him out. He stated that he was going to get away
from him if he had to beat the hell out of him on his own.
This was stated by Offender McDavid #943202 on 3 separate
occasions while I was talking to him. Offender McDavid
#943202 was identified by his state ID card and advised of
this write up.
August 13, 2015, Mr. McDavid was notified of the charge of
threatening and served with a copy of the Report of Conduct
and a copy of the Notice of Disciplinary Hearing
“Screening Report.” Mr. McDavid was notified of
his rights and pleaded not guilty. Dkt. 11-2. He requested a
lay advocate and one was appointed. Mr. McDavid did not
request any physical evidence, but he did request a witness
statement from Offender S. Hendricks. Mr. McDavid later
waived his requested witness statement, so that statement was
not obtained. Id.
August 17, 2015, the Disciplinary Hearing Officer (DHO) held
a disciplinary hearing in case ISF 15-08-0321. Mr. McDavid
pleaded not guilty and made the following statement: “I
was down at mental health trying to get help from them. I
keep having trouble with him and everything. I did say if he
comes on to me I will have to protect myself.” Dkt.
11-5. The DHO found Mr. McDavid guilty of offense B-213,
threatening, based on the conduct report and Mr.
McDavid's statement. Due to the seriousness of the
offense and the degree to which it endangered facility
security, the DHO imposed the following sanctions: a written
reprimand not to threaten anyone, 30 days' lost J-Pay
privileges, 60 days' lost earned credit time, and the
imposition of a previously suspended demotion from credit
class I to credit class II. Id.
August 20, 2015, Mr. McDavid appealed to the facility head,
arguing only that he had not threatened anyone but had merely
relayed a story of the situation, to convey the feelings of
fear and insecurity he was experiencing. Dkt. 11-6.
Respondent's designee denied the appeal on September 2,
2015. Mr. McDavid then appealed to the final reviewing
authority for the Indiana Department of Correction, who
denied the appeal on January 12, 2016. Dkt. 11-7. This habeas
McDavid argues that his due process rights were violated
during the disciplinary proceeding. His claims are that 1) he
was not making a threat, but simply telling a story; 2) Lt.
Criss, the reporting officer, violated the sanctity of the
doctor/patient relationship by invading the office where Mr.
McDavid was having a private mental health appointment; 3)
there was insufficient evidence to find him guilty; and 4) he
was punished for seeking protection from a tormentor and
thereby denied his constitutional right to be provided safe,
secure housing. Dkt. 1, pp. 2-3.
1 and 3 are construed as challenges to the sufficiency of the
evidence. Mr. McDavid was charged with and found guilty of
offense B-213, threatening, which prohibits, in part,
“[c]ommunicating to another person a plan to physically
harm, harass or intimidate that person or someone
else.” Indiana Dep't of Corr., Adult ...