United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
T. MOODY UNITED STATES DISTRICT COURT JUDGE
Guenther, a prisoner without a lawyer, filed a habeas corpus
petition challenging the prison disciplinary hearing (MCF
15-08-141) at the Miami Correctional Facility where a
Disciplinary Hearing Officer (DHO) found him guilty of
possession of a controlled substance in violation of Indiana
Department of Correction (IDOC) policy B-202 on August 26,
2015. (DE # 1 at 1.) As a result, he was sanctioned with the
loss of 60 days earned credit time. Guenther identifies four
grounds in his petition which he claims entitles him to
Ground One, Guenther argues that he was denied access to
evidence that he requested. Specifically, he claims that on
the day of his hearing, his lay advocate advised him to ask
for a confiscation report and a chain of custody report. When
he made this request directly before his hearing, the DHO
denied the request as untimely. The DHO did not err in
denying his untimely request for evidence. See Miller v.
Duckworth, 963 F.2d 1002, 1005 fn. 2 (7th Cir. 1992)
(prisoners “certainly cannot wait until the day of the
hearing” to make a witness request); Portee v.
Vannatta, 105 F. App'x 855, 857 (7th Cir. 2004)
(“Although inmates have a constitutional right to call
witnesses at disciplinary hearings…this right is
limited and requests that inmates make the day of the hearing
are not timely”). Moreover, he did not have a right to
a chain of custody report or a confiscation report.
“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). In
prison disciplinary cases, due process does not require a
complete chain of custody. Rather, “[a]bsent some
affirmative indication that a mistake may have been made,
[the] hypothetical possibility of tampering does not render
evidence inadmissible, but goes instead to the weight of the
evidence.” Webb v. Anderson, 224 F.3d 649, 653
(7th Cir. 2000). Here, there is no affirmative indication
that a mistake was made with respect to the evidence.
Therefore, the absence of a chain of custody or confiscation
report does not serve as a basis for habeas corpus relief.
Grounds Two and Three, Guenther 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 to 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, 224 F.3d at 652 (quotation marks, citations,
parenthesis, and ellipsis omitted).
was charged and found guilty of violating IDOC B-202. This
policy prohibits the “[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.
Indiana State law prohibits possession of any synthetic drug.
Ind. Code § 35-48-4-11.5.
Conduct Report charged Guenther as follows:
While reviewing DVR footage from 8-11-2015 in the GARMENT
shop Phase 1 PEN. I foreman Parks witnesses Ofd. Guenther,
Nicholas #150873 removing himself from the waiting line of
offenders being stripped out. Upon further viewing Ofd.
Guenther appears to be at his work station messing with the
chairs. Ofd. Guenther appears to be attaching or paying very
close attention to the front lip of one chair in particular.
Before leaving the area Ofd. Guenther switches the chair at
his work station with the one he was messing with.
With video evidence I searched Ofd. Guenther's work
station. Upon inspecting the underneath side of the chair a
small amount of a green leafy substance wrapped in plastic
was discovered. There were no other offenders in that exact
area from the time Ofd. Guenther was there and the search
(DE # 12-1.) The substance subsequently tested positive for
synthetic marijuana. (DE # 12-3.)
had sufficient evidence to find Guenther guilty. Here, the
DHO was confronted with two conflicting version of events. It
was the exclusive province of the DHO, not this court, to
weigh the evidence and resolve the factual dispute. Guenther
claimed that he went back to his desk to retrieve paperwork.
The Conduct Report presents evidence that Guenther went back
to his desk to plant contraband. The substance discovered at
his work station subsequently tested positive for synthetic
marijuana. In light of the evidence, it was not unreasonable
or arbitrary for the DHO to find Guenther guilty. Thus,
Grounds Two and Three do not provide a basis for granting
habeas corpus relief.
Ground Four, Guenther argues that he is entitled to habeas
corpus relief because he received notice of the postponement
of his disciplinary hearing after his delayed hearing had
taken place and the sanctions had been imposed.
Guenther's belated notice of the postponement of his
disciplinary hearing did not affect any of his procedural due
process rights. See generally Wolff, 418 U.S. at
556. Guenther was entitled to advance notice of the factual
allegations against him, and this right was satisfied when he
received the screening report eight days prior to his
hearing. (See DE # 12-7.) To the extent that
Guenther alleges that the belated notice of postponement
violated IDOC policy, IDOC policy is not relevant. The
IDOC's failure to follow its own policy does not rise to
the level of a constitutional violation. Estelle v.
McGuire, 502 U.S. 62, 68 (1991) (“state-law
violations provide no basis for federal habeas
relief”); Keller v. Donahue, 271 F. App'x
531, 532 (7th Cir. 2008) (finding that inmate's claim
that prison failed to follow internal policies had “no
bearing on his right to due process”). Thus, Ground
Four is not a basis for habeas corpus relief.
Guenther wants to appeal this decision, he does not need a
certificate of appealability because he is challenging a
prison disciplinary proceeding. See Evans v. Circuit
Court, 569 F.3d 665, 666 (7th Cir. 2009). However, he
may not proceed in forma pauperis on appeal because the court
finds pursuant to ...