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Lewis v. Brown

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

November 2, 2017

ENZERT LEWIS, Petitioner,
v.
DICK BROWN, Respondent.

          ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING ENTRY OF FINAL JUDGMENT

          Hon. Jane Magnus-Stinson, Chief Judge

         The petition of Enzert Lewis for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. WVD 16-12-115. For the reasons explained in this Entry, Lewis'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 December 22, 2016, Lewis was charged in case WVD 16-12-0115 with offense B-202, possession or use of a controlled substance. The conduct report states:

On 12-22-16 at approximately 9:15 am, I c/o M. Cunningham was conducting a search of cell #303 in LHU. During the search I found a Kernel Season's Bacon Cheddar Seasoning-orange and red bottle 2.85 oz.-with a green leafy substance inside. Inmate Enzert Lewis (249127) lives in this cell #303.

         The contraband was confiscated and sent to internal affairs, where it was photographed and tested-it tested positive for synthetic marijuana, also known as K2 spice.

         On December 29, 2016, Lewis was notified of the charge of possession or use of a controlled substance and served with a copy of the conduct report and a copy of the Notice of Disciplinary Hearing, “Screening Report.” Lewis was notified of his rights and pleaded not guilty. He requested a lay advocate, and one was later appointed. Lewis did not request any witnesses or physical evidence.

         On January 4, 2017, the Disciplinary Hearing Officer held a hearing in case WVD 16-12-0115. Lewis pleaded not guilty to the B-202 charge and made the following statement: “Can I plead guilty to C-307? It was just oregano from the kitchen. It was mine. My Bunkie had nothing to do with it.” Prior to the hearing, Lewis had also submitted another statement, in which he urged that his cellmate not be found guilty and that the substance was oregano, not K2 spice. The DHO found Lewis guilty of offense B-202 based on the conduct report, Lewis's statements, the photo, and the positive field test results. Due to the likely corrective effect of sanctions, the DHO imposed a written reprimand, a 30-day loss of commissary privileges, and a 30-day deprivation of earned credit time.

         On January 6, 2017, Lewis appealed to the respondent, arguing that the leafy green substance needed to be sent to an outside lab for confirmation testing. The respondent denied Lewis's appeal on January 20, 2017. Lewis's subsequent appeal to the final reviewing authority for the Indiana Department of Correction (“DOC”), in which he asked for retesting and a reweighing of the evidence, was denied.

         C. Analysis

         Lewis challenges the disciplinary action against him arguing that the leafy substance was not sent to an outside lab for confirmation; there was a break in the chain of custody; in addition to the sanctions imposed by the hearing officer, he has been restricted to non-contact visitation; he was not provided with a translator; and DOC policy was not followed because his appeal response was not personally delivered to him. The respondent argues that Lewis had not shown that his due process rights were violated with regard to his claim regarding outside laboratory confirmation and that his other claims are barred because his did not exhaust his administrative appeals with respect to those claims.

         1. Outside ...


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