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Ausherman v. W.V.C.F.

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

September 11, 2017

W.V.C.F., Respondent.



         The petition of Jacob Ausherman for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. WVS 16-10-0008. For the reasons explained in this Entry, Mr. Ausherman's habeas petition must be denied.

         A. Overview

         Prisoners 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).

         B. The Disciplinary Proceeding

         On October 21, 2016, Investigator J. Poer wrote a Conduct Report charging Mr. Ausherman with conspiracy to commit trafficking. The Conduct Report states:

I, Inv J. Poer, conducted an investigation into the trafficking of Suboxone strips by Officer Mark Wooten. During my investigation it was determined that multiple offenders involved with the conspiracy were using the account of offender Kyle Wilhelm 143157 to contact Sherrie Ausherman at 765-978-9366. Offender Ausherman, Jacob 178249 used the Wilhelm DOC number and private pin to call 765-978-9966. During the calls offender Ausherman would use coded language to discuss the management of the trafficking. Once offender Ausherman was placed in segregation, he would utilize offender Shawn Adams to communicate with his mom on the Wilhelm account about the trafficking. During multiple calls, Sherrie Ausherman and offender Adams talk about “lil bro”, which is a reference to offender Jacob Ausherman. Ausherman and Adams are both members of STG Imperial Gangsters. Sherrie and Adams talk in coded language about what Ausherman wants done with regard to trafficking Suboxone into the facility. Through the investigation, I was able to substantiate the conspiracy to traffic Suboxone strips into the facility and caught Officer Mark Wooten bringing 190 Suboxone strips in on 8/10/16. Wooten gave a recorded statement that substantiated Sherrie Ausherman's involvement along with multiple other offenders.

Dkt. 9-1 at 1. The Conduct Report also referred to Confidential Case File 16-CIC-0034 for further information.

         Investigator Poer also completed an Investigation Report on October 21, 2016, which states:

On July 28, 2016, I, Inv. J. Poer, opened an investigation on Trafficking a controlled substance with an inmate. During the investigation, I was able to substantiate that offender Ausherman, Jacob 178429 was providing instructions to his mother Sherrie Ausherman on how he wanted her to receive controlled substance Suboxone and package it for delivery into the facility. Offender Ausherman originally would call Sherrie Ausherman on phone number 765-978-9366 using another offender's phone account. Offender Ausherman was given segregation time on an unrelated conduct report so he began sending instructions to Sherrie Ausherman through offender Adams, Shawn 200663. Offender Adams would call Sherrie Ausherman on the same number and would constantly tell Sherrie Ausherman what “lil bro” wanted her to do. Offender Adams was referring to offender Ausherman when he talked about “lil bro” with Sherrie Ausherman. For additional information refer to Confidential Case File 16-CIC-0034.

Dkt. 9-2 at 1.

         Mr. Ausherman was notified of the charge on October 28, 2016, when he received the Screening Report. He plead not guilty to the charge, did not request to call any witnesses, and requested as physical evidence the “IA Evidence and Confidential Case File 16-CIC-0034.” Dkt. 9-3 at 1.

         A hearing was held on November 15, 2016. Mr. Ausherman stated the following at the hearing: “‘lil bro' is an assumption to be me-there is no way to prove this was me. I didn't tell my mother to do it nor did I tell him to do it-I sometimes ran a store-forget this-it is irrelevant. I should be able to get the coded words I supposedly used.” Dkt. 9-6 at 1. Investigator Poer was sworn in over the phone and he testified that the confidential informants used in the investigation were reliable and provided true and accurate information. Based on the Staff Reports, Mr. Ausherman's statement, Investigator Poer's testimony, and the confidential case file summary, the hearing officer found Mr. Ausherman guilty of conspiracy to traffick. The sanctions imposed included a 180-day earned-credit-time deprivation and a credit-class demotion.

         Mr. Ausherman appealed to Facility Head and the IDOC Final Reviewing Authority, but both of his appeals were denied. He then brought this petition for a writ of ...

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