Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Delao v. Warden

United States District Court, N.D. Indiana, South Bend Division

October 15, 2018

FRANCISCO DELAO, Petitioner,
v.
WARDEN, Respondent.

          OPINION AND ORDER

          JON E. DEGUILIO, JUDGE

         Francisco Delao, a prisoner without a lawyer, filed an amended habeas corpus petition challenging a disciplinary hearing (ISP 16-06-379) where a Disciplinary Hearing Officer (DHO) found him guilty of assault with a deadly weapon in violation of Indiana Department of Correction (IDOC) Policy A-102 on July 1, 2016. ECF 4 at 1. As a result, he was sanctioned with the loss of 60 days earned credit time and demoted one credit class. Id. The Warden has filed the administrative record. Delao has not filed a traverse and the time to do so has passed. Thus this case is fully briefed.

         The 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). In his amended petition, Delao presents four grounds which he claims entitles him to habeas corpus relief.

         As a threshold matter, the DHO had sufficient evidence to find Delao guilty. 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 omitted).

         Here, Delao was found guilty of violating IDOC offense A-102 which prohibits inmates from “[c]ommitting battery/assault upon another person with a weapon (including the throwing of body fluids or waste on another person) or inflicting serious bodily injury.“ Indiana Department of Correction, Adult Disciplinary Process: Appendix I. http://www.in.gov/idoc/files/ 02-04-101APPENDIXI-OFFENSES 6-1-2015(1).pdf.

         The Conduct Report charged Delao as follows:

On 6-27-2016 at approximately 3:31 pm a 10-10 was called on the PDR walk. Offender Delao # 208090 from B338 had in his possession a home made weapon that he used to stab offender Lunsford # 896066 who lives in B 102, while offender Garza # 133765 held offender Lunsford down. The Weapon was confiscated and turned in to IA. Offender Delao was placed in SMC2.

ECF 11-1 at 1.

Captain Adam Bootz prepared a Shift Report of Incident that states:
On 6-27-16, a 10-10 was called at 1531 by Tower 6, Offenders Delao, Francisco #208090 Garza, Jesus #133765 and Lunsford, Ronald #896066 were fighting in the PDR walk. First responders arrived and witnessed offender Delao, Francisco #208090 with a weapon swinging at offender Lunsford, Ronald #896066. All offenders were ordered on the ground, and complied. They were cuffed escorted to custody hall, strip searched and suicide screened. The signal was cleared at 1537. Delao #208090 moved to SMC2. Garza #133765 moved to IDU W203. Lunsford #896066 kept in holding cell as MSU overnight, IDU E234 being held for him.

ECF 11-5 at 1.

         In assessing the evidence, the DHO determined there was sufficient evidence in the record to find Delao guilty of violating offense A-102. A conduct report alone can be enough to support a finding of guilt. McPherson, 188 F.3d at 786. Such is the case here. In this case, the reporting officer, detailed the fact that when he arrived on the PDR walk at about 3:31 p.m. on June 27, 2016, Delao had a homemade weapon in his possession which he had used to stab offender Lunsford. ECF 11-1 at 1. The reporting officer explained Delao assaulted offender Lunsford while offender Garza held down Lunsford. Id. In addition to the conduct report, the record contains witness statements from prison officers who observed Delao and Garza assaulting Lunsford or were called to assist with the aftermath of the assault. ECF 11-6 at 1, 11-7 at 1, 11-8 at 1, 11-9 at 1, 11-10 at 1. Photograph evidence documented the homemade weapon and Lunsford's injuries resulting from the assault. ECF 11-11 at 1, ECF 11-12 at 1. Medical records detailed the extent of Lunsford's injuries and treatment needed for the injuries. ECF 13 at 1-2. In light of the conduct report describing Delao's attack on Lunsford, numerous witness statements, photographic evidence, and medical documentation, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.