United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Askew, a prisoner without a lawyer, filed a habeas corpus
petition challenging a disciplinary hearing (ISP 17-4-295)
where a Disciplinary Hearing Officer (DHO) found him guilty
of conspiring or attempting to traffic in violation of
Indiana Department of Correction (IDOC) Policies A-111 and
A-113 on May 3, 2017. ECF 1 at 1. As a result, he was
sanctioned with the loss of 180 days earned credit time and
was demoted from Credit Class 1 to Credit Class 2.
Id. The Respondent has filed the administrative
record. Askew has not filed a traverse and the time to do so
has passed. Thus this case is fully briefed.
Fourteenth Amendment guarantees prisoners certain procedural
due process rights in prison disciplinary hearings: (1)
advance written notice of the charges; (2) an opportunity to
be heard before an impartial decision-maker; (3) an
opportunity to call witnesses and present documentary
evidence in defense, when consistent with institutional
safety and correctional goals; and (4) a written statement by
the fact-finder of evidence relied on and the reasons for the
disciplinary action. Wolff v. McDonnell, 418 U.S.
539 (1974). To satisfy due process, there must also be
“some evidence” in the record to support the
guilty finding. Superintendent, Mass. Corr Inst. v.
Hill, 472 U.S. 445, 455 (1985).
threshold matter, the DHO had sufficient evidence to find
Askew guilty of conspiring or attempting to traffic. In the
context of a prison disciplinary hearing, “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 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 v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000)
(quotation marks, citations, parenthesis, and ellipsis
Askew was found guilty of violating IDOC offenses A-111 and
A-113 for conspiring or attempting to traffick marijuana.
IDOC offense A-111 prohibits inmates from “[a]ttempting
or conspiring or aiding and abetting with another to commit
any Class A offense.” Indiana Department of Correction,
Adult Disciplinary Process: Appendix I.
6-1-2015(1).pdf. IDOC offense A-113 prohibits inmates from
“[e]ngaging in trafficking (as defined in IC
35-44.1-3-5) with anyone who is not an offender residing in
the same facility.” Id.
Conduct Report charged Askew as follows:
On 4/26/2017 upon reviewing Offender Askew, James # 994640
Offender Phone System, Offender Askew and former Offender
Brandon Moody # 190162 were found to be communicating about
the trafficking of Marijuana. Offender Askew made several
calls indicating that a staff person was to receive the
Marijuana and bring it into the facility for money. Offender
Askew gave the phone number . . . to Mr. Moody and told him
on April 2, 2017 to call him and get him the package so that
he can get it into me tomorrow. This phone number is
registered to . . . Aramark Worker for ISO. The Investigation
confirmed that Moody contacted and met with Josh Davis.
ECF 9-1 at 1.
assessing the evidence, the DHO determined there was
sufficient evidence in the record to find Askew guilty of
violating offenses A-111 and A-113. A conduct report alone
can be enough to support a finding of guilt.
McPherson, 188 F.3d at 786. Such is the case here.
The reporting officer stated in the conduct report that he
heard phone conversations between Askew and former Offender
Moody during which they communicated about trafficking
marijuana. ECF 9-1 at 1. Askew made several phone calls to
Moody to let him know that he should give the marijuana to
Josh Davis, an Aramark Worker, who would then bring the
marijuana into the prison facility. Id. Askew gave
Davis's phone number to Moody and, on April 2, 2017, he
told Moody to call Davis and give Davis the package so that
he would have it the following day. Id. Based on the
phone conversations between Askew and Moody, there was
sufficient evidence for the DHO to conclude that Askew
conspired or attempted to traffic marijuana. Therefore, the
DHO's finding that Askew was guilty was neither arbitrary
nor unreasonable in light of the evidence in the detailed
Askew argues that his due process rights were violated
because he did not have access to the confidential evidence
he requested during his screening. ECF 1 at 2. Specifically,
he requested “any evidence they got, listen to audio,
voice anylis [sic].” ECF 9-2 at 1. However, he asserts
he was not allowed to listen to the audio recording, did not
receive a copy of the DHO's Facts, Findings and
Conclusions, and was denied access to the confidential
Internal Affairs investigation file. Id. Thus, Askew
contends he was improperly denied access to this evidence.
Askew had a right to request evidence in his defense, see
Wolff, 418 U.S. at 566, he did not have necessarily have
a right to personally review the evidence. See White v.
Ind. Parole Bd., 266 F.3d 759, 767 (7th Cir. 2001)
(“prison disciplinary boards are entitled to receive,
and act on, information that is withheld from the prisoner
and the public . . . “). Here, Askew did not have a
right to review the confidential Internal Affairs
investigation file because the file contains information from
cooperating witnesses, phone records, personal information,
and the audio recording of the April 2, 2017 phone
conversation. ECF 9 at 5. The release of the file and audio
recording to Askew would have given him and other inmates
insight into the surveillance techniques employed by the
Internal Affairs investigators. The court has reviewed the
confidential Internal Affairs investigation file and audio
recording, and finds that the DHO did not err in determining
that it posed a security threat to release this information
also did not have a right to review the confidential Internal
Affairs investigation file and audio recording because this
evidence was not exculpatory. Miller v. Duckworth,
963 F.3d 1002, 1005 (7th Cir. 1992) (“[i]nmates have a
right to present relevant, exculpatory evidence in their
defense”). Exculpatory in this context means evidence
which “directly undermines the reliability of the
evidence in the record pointing to [the prisoner's]
guilt.” Meeks v. McBride, 81 F.3d 717, 720
(7th Cir. 1996). While Askew has a right to present relevant,
exculpatory evidence in his defense, the confidential
Internal Affairs investigation file and audio recording were
made up of incriminating evidence, which support the conduct
report. Miller, 963 F.3d at 1005. As stated, the
court has reviewed the confidential Internal Affairs
investigation file and audio record, and notes that they do
not contain any exculpatory evidence. Because the DHO, who
presided over Askew's hearing reviewed and ...