United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
JAMES T. MOODY, UNITED STATES DISTRICT COURT.
Bulic, a pro se prisoner, filed a habeas corpus
petition challenging a prison disciplinary hearing (ISO
16-05-037) where an Indiana State Prison Disciplinary Hearing
Officer (“DHO”) found him guilty of Possession or
Use of a Controlled Substance in violation of B-202 on June
8, 2016. (DE # 1 at 1.) As a result, he was sanctioned with
the loss of 45 days earned credit time. Id. While
Bulic identifies three grounds in his petition, his claims
can be restated as challenges to: (1) the sufficiency of the
evidence used to find him guilty, and (2) the DHO's
refusal to provide him with a copy of the shakedown log,
shakedown sign-in sheet, and surveillance footage of his bunk
filed a response to the court's order to show cause in
March 2017. (DE # 4.) In the intervening months, Bulic has
not filed a traverse, nor has he sought additional time to do
so. His time to file a traverse has now expired. N.D. Ind. L.
Cr. R. 47-2 (petitioner has 28 days to file reply).
Therefore, this case is fully briefed.
first argues that the DHO did not have sufficient evidence to
find him guilty. In the disciplinary context, “the
relevant question is whether there is any evidence in the
record that could support the conclusion reached by the
disciplinary board.” Superintendent v. Hill,
472 U.S. 445, 455-56 (1985). “In reviewing a decision
for some evidence, courts are not required to conduct an
examination of the entire record, independently assess
witness credibility, or weigh the evidence, but only
determine whether the prison disciplinary board's
decision to revoke good time credits has some factual
basis.” McPherson v. McBride, 188 F.3d 784,
786 (7th Cir. 1999) (quotation marks omitted).
[T]he findings of a prison disciplinary board [need only]
have the support of some evidence in the record. This is a
lenient standard, requiring no more than a modicum of
evidence. Even meager proof will suffice, so long as the
record is not so devoid of evidence that the findings of the
disciplinary board were without support or otherwise
arbitrary. Although some evidence is not much, it still must
point to the accused's guilt. It is not our province to
assess the comparative weight of the evidence underlying the
disciplinary board's decision.
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000)
(quotation marks, citations, parenthesis, and ellipsis
the Conduct Report charged Bulic as follows: “[o]n
5/29/16 at approximately 8:15 pm, I Officer Tustison while
conducting a routine shakedown of offender Bulic (254987)
found a Fentanyl transdermal system still in its original
sealed packaging inside his cabinet in his oatmeal
container.” (DE # 1 at 4.) There was also a witness
statement from Officer Crawford who reported, “[o]n
05/29/16 at approximately 8:15PM I, Officer Crawford,
witnessed Officer Tustison find a Fentanyl Transdermal System
inside of Offender Bulic's, DOC# 254987, ISO West 2 - Row
10 -Bed 4 container of oatmeal that was located inside his
blue cabinet.” (DE # 1 at 5.)
was charged with, and found guilty of, violating IDOC B-202,
which prohibits inmates from “[p]ossession or use of
any unauthorized substance controlled pursuant to the laws of
the State of Indiana or the United States Code or possession
of drug paraphernalia.” Adult Disciplinary Process,
Appendix I: Offenses.
Fentanyl is a controlled substance pursuant to both Indiana
and federal law. See 856 Ind. Adm. Code §
2-2-3; see also 21 U.S.C. § 812.
had sufficient evidence to find Bulic guilty of violating
IDOC B-202. A Conduct Report alone can satisfy the
“some evidence” requirement, McPherson,
188 F.3d at 786, and here the Conduct Report by Officer
Tustison was corroborated by a witness statement from Officer
Crawford. Both officers provided evidence that the fentanyl
was discovered in Bulic's cabinet. In light of this
evidence, the DHO's determination that Bulic was guilty
was not unreasonable or arbitrary.
argues that there was insufficient evidence that the
contraband belonged to him, as opposed to one of the eight
other inmates whose property was searched. (DE # 1 at 2.)
Bulic claims that during the shakedown, prison officials
“demolished” the bunk areas, and that it took the
prisoners 30 minutes to locate their property because it had
been scattered throughout other inmates' living areas.
Id. The court has reviewed video footage from the
shakedown. (DE # 10.) While this footage does not show all
areas searched, and does not show Bulic's living area, it
does serve to refute Bulic's claim that the
offenders' property was strewn about and mixed with other
inmates' property. This does not really matter, though,
as the post-search state of the inmate living areas is
irrelevant to Bulic's disciplinary charge. Officer
Tustison discovered the fentanyl inside Bulic's
cabinet, concealed within an oatmeal container. It was not
discovered in an area where it could have conceivably been
mixed with another prisoner's property.
also argues that he should not have been found guilty because
he took a drug test several days after the shakedown and his
test was negative for drug use. This is not relevant to the
disciplinary charge in this case because Bulic was charged
with possession, not use, of a controlled substance.
Bulic claims that he is entitled to habeas relief because he
was not provided with a copy of the shakedown sign-in sheet
or the shakedown log. (DE # 1 at 2.) He claims that he needed
these documents to identify which employees took part in the
search. He also takes issue with the fact that he requested
surveillance footage from his bunk area, and that the request
was denied on the basis that no footage from his bunk area
existed. Id. Bulic did not have a due process right
to any of this evidence. “Prison disciplinary
proceedings are not part of a criminal prosecution, and the
full panoply of rights due a defendant in such proceedings
does not apply.” Wolff v. McDonnell, 418 U.S.
539, 556 (1974). Inmates have a right to present relevant,
exculpatory evidence in their defense. Id. at 566;
Miller v. Duckworth, 963 F.2d 1002, 1005 (7th Cir.
1992). Exculpatory in this context means evidence which
“directly undermines the reliability of the evidence in
the record pointing to [the prisoner's] guilt.”
Meeks v. McBride, 81 F.3d 717, 721 (7th Cir. 1996).
Here, the shakedown log and sign-in sheet were not relevant
or exculpatory. While Bulic claims that he wanted the
shakedown logs because he wished to know which officers
participated in the shakedown, he has not identified how such
information is relevant to his disciplinary charges.
Moreover, Bulic never requested to review this evidence, and
had no right to the production of evidence he did not
request. With respect to the video evidence, the DHO could
not produce evidence that did not exist. Because there was no
footage of Bulic's living area, there was no due process
violation when such footage was not produced.
these reasons, the petition (DE # 1) is
DENIED. The clerk is
DIRECTED to close this case.