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Topp v. Superintendent

United States District Court, S.D. Indiana, Indianapolis Division

November 21, 2017

BRAD TOPP, Petitioner,


          Jane Magnus-Stinson, Chief Judge United States District Court Southern District of Indiana

         The petition of Brad Topp for a writ of habeas corpus challenges a prison disciplinary proceeding in MCF 16-09-0308. For the reasons explained in this entry, Mr. Topp's habeas petition must be denied.

         A. Overview

         Prisoners 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); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000). A violation of state law will not support the issuance of a writ of habeas corpus. Holman v. Gilmore, 126 F.3d 876, 884 (7th Cir. 1997).

         B. The Disciplinary Proceeding

         On September 17, 2016, Sgt. James Strong wrote a Report of Conduct charging Mr. Topp with refusing to submit to urinalysis testing. The conduct report states:

On 7-17-2015[1] at approx. 11:50 PM I Sgt. James Strong was conducting a urinalysis test for Ofd. Topp, Brad #129104 of KHU 343 for the purpose of a follow up urinalysis screening. When offender Topp handed me his sample I noticed it appeared to be clear like water and had no temperature on temperature strip. I then tilted the bottle to allow the urine to heat up the temperature strip which it never did. I advised offender Topp that the sample was not acceptable since it was colder than 90 degrees. Offender Topp was given a total of 2 hours and at 2:00 a.m. he failed to provide a valid sample. He was advised he would receive a conduct report after signing a refusal to submit to urinalysis test.

Dkt. 6-1; dkt. 6-2.

         Mr. Topp signed a refusal to submit to a urinalysis test form. Dkt. 6-2. On October 4, 2016, Mr. Topp was notified of the charge and was given a copy of the conduct report and the Notice of Disciplinary Hearing “Screening Report.” He was notified of his rights and pled not guilty. He requested a lay advocate and requested that inmate Jeremy Miller, #257252, and inmate Carl Brown, #933649, be called as witnesses. Inmate Miller provided the following statement: “The specimen cups were not in any packaging and also my urinalysis read the correct temp of 92 or above the same day as his.” Dkt. 6-7. Inmate Brown provided the following statement: “We were standing @ desk together, and both of our I cups were having issues registering. We voiced our concern, because I cups were already taken out of foil pouch (out of our presence). The Sergeant stated ‘we know how to do our job.' The cups did after a short time register. Mr. Topp was 92 temperature. Mine was 92 temperature. Sergeant Fisher deemed mine fine. I was negative. The Sergeant performing Mr. Topp's [illegible] his a refusal due to temperature.” Dkt. 6-8. Mr. Topp requested video of the Phase 2 visiting room as evidence. He stated he believed the video would show that the cups and test strips were already open and that is against policy. Dkt. 6-3.

         The hearing officer conducted a disciplinary hearing on October 24, 2016. Mr. Topp pleaded not guilty and stated, “Cups was out of package before I entered visit two. I waited in line for 5 minutes waiting to give my cup to Sgt. Strong after Sgt. Rish watched me urinate.” Dkt. 6-5. The hearing officer found Mr. Topp guilty of refusing to submit to urinalysis testing. Dkt. 6-5. In making this determination, the hearing officer considered the staff reports, the offender's statement, witness evidence, and the video.[2] The following evidence from the video summary was provided:

On 10/13/2016 (J. Prater) reviewed the DVR of Phase 2 Visitation Room dated 9/17/2016 and the approx. time of 1:09am.[3] This review was requested by offender Topp, Brad 129104 at his screening on 10/04/2016 for case MCF 16-09-0308.
During review of the DVR offender Topp 129104 can be seen sitting in the Phase 2 Visitation Room waiting to give a urine sample. At 1:10am he is seen going toward the bathroom followed by Sgt. and then returning at 1:12am with the urine sample which he places on the table in front of Sgt. Strong.
Due to the position of the camera it is not clear what other items are sitting in the table where the sample was ...

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