United States District Court, S.D. Indiana, Indianapolis Division
ENTRY AND ORDER DISMISSING ACTION
William C. Griesbach, Chief Judge [*]
August 3, 2018, Rodney S. Perry, Sr., an inmate at the
Pendleton Correctional Facility, filed this petition for a
writ of habeas corpus challenging the handling of a
disciplinary proceeding held on April 12, 2018. Perry was
found guilty of possession of a deadly weapon, resulting in
six months of disciplinary segregation. Perry alleges that he
should not have been found guilty of violating prison rules
because he was denied access to requested evidence, was not
provided a lay advocate during the proceeding, and the
explanation provided for the disciplinary action taken was
insufficient. ECF No. 3. Although Perry has failed to pay the
$5 filing fee for habeas petitions, the court will waive the
filing fee and proceed immediately to screening so as to
minimize time and resources devoted to a case that clearly
administrative records show that Perry was not sanctioned
with any loss of good-time credit or demotion in credit
class. ECF 2. Because Perry was not subject to a sanction
affecting the duration of his incarceration, he does not
satisfy the custody requirement of 28 U.S.C. § 2254.
Montgomery v. Anderson, 262 F.3d 641, 643-44 (7th
Cir. 2001). For the reasons stated below, this petition
is denied and this action is dismissed
pursuant to Rule 4 of the Rules Governing Section 2254
Proceedings in the United States District Court.
provides that, upon preliminary consideration by the district
court judge, “[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner.” A federal court may issue a writ of habeas
corpus pursuant to 28 U.S.C. § 2254(a) only if it finds
the applicant “is in custody in violation of the
Constitution or laws or treaties of the United States.”
prisoner challenging the process he was afforded in a prison
disciplinary proceeding must meet two requirements: (1) he
has a liberty or property interest that the state has
interfered with; and (2) the procedures he was afforded upon
that deprivation were constitutionally deficient.”
Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir.
2007). If a habeas petitioner has suffered the deprivation of
a protected liberty interest the procedural protections
delineated in Wolff v. McDonnell, 418 U.S. 539, 557
(1974), are applicable and the decision must be supported by
“some evidence.” Superintend. Mass. Corr.
Inst. v. Hill, 472 U.S. 445, 454 (1985); see also
Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003);
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000).
order to proceed, Perry must meet the “in
custody” requirement of § 2254(a). Meeting this
requirement is a matter of jurisdictional significance.
Maleng v. Cook, 490 U.S. 488, 490 (1989) (per
curiam). “[T]he inquiry into whether a petitioner has
satisfied the jurisdictional prerequisites for habeas review
requires a court to judge the ‘severity' of an
actual or potential restraint on liberty.” Poodry
v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894
(2d Cir. 1996). A sanction which does not constitute
“custody” cannot be challenged in an action for
habeas corpus relief. Montgomery v. Anderson, 262
F.3d 641, 644-45 (7th Cir. 2001).
alleges that the challenged disciplinary proceeding resulted
in six months of disciplinary segregation in addition to a 30
day loss of phone, kiosk, and commissary privileges. ECF No.
2. This sanction is non-custodial. See i.e., Cochran v.
Buss, 381 F.3d 637, 641 (7th Cir. 2004) (loss of
preferred prison living arrangement, prison job and
eligibility for rehabilitative programs are not sufficient
consequences of a disciplinary proceeding to require due
process); Moody v. Daggett, 429 U.S. 78, 88 n. 9
(1976) (stating that not every prison action that adversely
affects the prisoner requires due process, such as a transfer
to a substantially less agreeable prison and an unfavorable
classification for rehabilitative programs). When no
recognized liberty or property interest has been taken, which
is the case here, the confining authority “is free to
use any procedures it chooses, or no procedures at
all.” Montgomery v. Anderson, 262 F.3d 641,
644 (7th Cir. 2001). Accordingly, there is no viable due
process claim asserted in Perry's complaint (ECF No. 3)
and the action is summarily dismissed
pursuant to Rule 4.
consistent with this Entry shall now issue.
IS SO ORDERED.
the Eastern District of Wisconsin, sitting by