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Cole v. Zatecky

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

June 1, 2018

ANTHONY COLE, Petitioner,
v.
DUSHAN ZATECKY, Respondent.

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

          Hon. Jane Magnus-Stinson, Chief Judge

         The petition of Anthony Cole for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. ISR 17-06-0030. For the reasons explained in this Entry, Mr. Cole'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 June 3, 2017, Correctional Officer R. Cochran wrote a Conduct Report charging Mr. Cole with assault on staff. The Conduct Report states:

I Officer R. Cochran told Offender Cole, Anthony to go to his cell 23-5b after a shower. Ofd. Cole then refused to go to lock in. After several attempts of ordering Ofd. Cole to go to his cell I ordered him to cuff up. He then refused to cuff up and started to get aggressive. I ordered him to cuff up and when he refused again I then applied a one second burst of O.C. on target. Ofd. Cole then charged at me and hit me on my left side of the head.

Dkt. 8-1, p. 1.

         A report of use of physical force was completed by Officer Cochran setting forth the same statement as in the Conduct Report. Dkt. 8-1, p. 2. There are also several photographs of two individuals (presumably Officer Cochran and Mr. Cole) attached to the Conduct Report. Dkt. 8-1, pp. 3-7. Mr. Cole was notified of the charge on June 12, 2017, when he received the Screening Report. He pleaded not guilty to the charge, requested a lay advocate, and requested Officer Holmes as a witness. He also requested two inmates as witnesses and identified them by their cell number - two inmates from 5B.

         Mr. Cole checked the box requesting physical evidence and in the box to describe the evidence he wanted, he wrote: “Video review - he never told me to cuff-up.” He also requested the Adult Disciplinary Policy and Procedures (ADP). Mr. Cole was advised to obtain the ADP from the library. Dkt. 8-2.

         Offender Keith Gross, cell 1-5B, provided the following statement: “I am the range detail worker for 5B in HCH. I overheard Officer [Cocheran] telling Anthony Cole to cuff up after Cole asked to speak with [unintelligible] asked why are you telling me to cuff up when I just wanted to talk to [unintelligible] at this point Ofc. [Cocheran] began spraying Cole with his pepper spray and I observed Cole attempt to cover his fore [sp?] and eyes and at this time Officer [Cocheran] began to restrain Cole. Quickly into restraining Cole Officer Hamilton came to assist Officer [Cocheran] and they restrained Cole.” Dkt. 8-3, p. 3.

         Offender Albert Hardister, cell K6-1-7UP, provided the following statement: “He was on his way to his cell when the officer stop him. They talk for a while then the officer said put your hands behind your back after Cole ask for the Lt.” Dkt. 8-3, p. 4.

         Offender Carl Gilbert, lay advocate, provided ...


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