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Burk v. Superintendent

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

December 28, 2017

SCOTT A. BURK, Petitioner,
v.
SUPERINTENDENT, Respondent.

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

          TANYA WALTON PRATT, JUDGE United States District Court

         This matter is before the Court on Petitioner Scott Burk's petition for a writ of habeas corpus. Mr. Burk challenges a prison disciplinary proceeding identified as No. ISR 16-12-0099.

         For the reasons explained in this entry, Mr. Burk's habeas petition is granted.

         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).

         B. The Disciplinary Proceeding

         On December 22, 2016, Correctional Officer M. Franklin wrote a Report of Conduct in case ISR 16-12-0099 charging Mr. Burk with a violation of codes 111/113 conspiracy, attempting, aiding or abetting/trafficking. The conduct report states:

On the above date and approx.. time, I, Officer M. Franklin was in the C block officers case looking for a kiosk/phone sheet. Offender Burk, Scott #852451 (4-1C ACT Detail) approached me and said he needed to talk to me. I told him go ahead and he stated “I am too old to be running around here hustling for my money. I could make some real money if I could just find the right guy to work with me.” I told him “No, I'm not that guy.” He replied with, “Franklin, I think you could be that guy for me.” I then responded with “No, I'm not that guy and I never will be” and I then walked away. There was no conversation with the offender after that.

Dkt. 7-1.

         On January 6, 2017, Mr. Burk 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 but did not request any witnesses. Mr. Burk sought the following evidence: video evidence and the institutional packet showing his disciplinary history. The request for video evidence was denied stating “there are no cameras that show the officer's office in GCH-MS.” The hearing officer conducted a disciplinary hearing in case ISR 16-12-0099 on January 12, 2017, after a postponement. Mr. Burk provided the following statement: “I did not attempt to traffic with the officer. I understand that the definition of 113 is to give or receive something of value from someone who does not resume [sic] in the DOC. I did not offer Officer Franklin any money. I have no history of trafficking.” Dkt. 7-5. Mr. Burk's disciplinary history was provided to the hearing officer. Dkt. 7-2; dkt. 7-4. The hearing officer also considered the staff reports.

         The hearing officer found Mr. Burk guilty of the charge of attempted trafficking and recommended the following sanction: a written reprimand; a 45-day loss of commissary, kiosk, and phone privileges; six (6) months disciplinary segregation, a 100-day deprivation of earned credit time, and a demotion from credit class 1 to credit class 2. The hearing officer recommended the sanctions because of seriousness of the violation, the degree to which the violation disrupted/endangered the security of the facility, and the likelihood of the sanction having a corrective effect on the offender's future behavior. Dkt. 7-6.

         Mr. Burk appealed the disciplinary proceeding through the administrative process. His appeals were denied. He now seeks relief pursuant to 28 U.S.C. § 2254 arguing that his due process rights were violated.

         C. Analysis

         Mr. Burk is entitled to habeas relief. The Court will only discuss the dispositive claim that the evidence was ...


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