United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
Tate, a prisoner without a lawyer, filed a habeas corpus
petition challenging a disciplinary hearing where a
disciplinary hearing officer found him guilty of possession
or use of a controlled substance in violation of Indiana
Department of Correction Policy B-202. ECF 2 at 1. As a
result, he was sanctioned with a one-step demotion in credit
class. Id. This means he will accrue good time
credit at a slower rate. The Warden has filed the
administrative record. Tate 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).
first argues that the hearing officer did not have sufficient
evidence to find him guilty of possessing a controlled
substance in violation of offense B-202. ECF 2 at 3. 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.” Hill, 472 U.S. at 455-56. “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). This is
an exceedingly modest standard of review. Indeed, the Seventh
Circuit has said that “even meager proof will
suffice.” Webb v. Anderson, 224 F.3d 649, 652
(7th Cir. 2000).
was found guilty of violating IDOC offense B-202 which
prohibits inmates from “[p]ossession or use of any
unauthorized substance controlled pursuant to the laws of the
State of Indiana or the United States Code, possession of
drug paraphernalia, possession/use of a synthetic drug, or
drug lookalike.” Indiana Department of Correction,
Adult Disciplinary Process: Appendix I.
Conduct Report charged Tate as follows:
On the above date and approximate time, I, Officer Reed,
while conducting an ERO shakedown found a hand rolled
cigarette, commonly used to smoke controlled substances on
Offender Tate, Demetrius #205936 mattress.
ECF 10-1 at 1.
assessing the evidence, the hearing officer determined there
was sufficient evidence in the record to find Tate guilty of
possession or use of a controlled substance in violation of
offense B-202. 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 the conduct report, Officer
Reed detailed the fact he found a hand rolled cigarette on
Tate's mattress after conducting a shakedown of his cell.
ECF 10-1 at 1. These are typically used to smoke controlled
substances. Id. A photograph taken shortly after the
discovery of the contraband corroborated the conduct report.
ECF 10-3 at 1. Furthermore, an internal investigation
identified the hand rolled cigarette that Tate had in his
possession as constituting a “look-a-like”
controlled substance under offense B-202. ECF 10 at 7, 12 at
Tate does not dispute that he possessed the
“look-a-like” substance that appeared to be an
illegal substance. Given the discovery of the hand rolled
cigarette on Tate's mattress in his cell, photographic
evidence documenting the cigarette, and an internal
investigation identifying the cigarette as a
“look-a-like” substance, there was more than
“some evidence” for the hearing officer to find
Tate guilty of offense B-202. Because the hand rolled
cigarette looked like and was consistent with an illegal
controlled substance, it was neither arbitrary nor
unreasonable to find Tate guilty. Therefore, this ground does
not identify a basis for granting habeas corpus relief.
also contends that his due process rights were violated
because he was denied an impartial hearing. ECF 2 at 2. In
the prison disciplinary context, adjudicators are
“entitled to a presumption of honesty and integrity,
” and “the constitutional standard for improper
bias is high.” Piggie v. Cotton, 342 F.3d 660,
666 (7th Cir. 2003). Due process prohibits a prison official
who was personally and substantially involved in the
underlying incident from acting as a decision-maker in the
case. Id. However, due process is not violated
simply because the hearing officer knew the inmate, presided
over a prior disciplinary case, or had some limited
involvement in the event underlying the charge. Id.
is no evidence to support Tate's contention that the
hearing officer was biased against him or that he did not
have an impartial hearing. Tate has not shown that the
hearing officer was directly or otherwise substantially
involved in the factual events underlying the disciplinary
charges, or the investigation of the incident. Id.
Therefore, this ground does not identify a basis for granting
habeas corpus relief.
also asserts that his due process rights were violated
because prison officials did not test the confiscated hand
rolled cigarette. ECF 2 at 2. However, the prison's
refusal to test the contraband did not violate Tate's due
process rights. “Prison disciplinary proceedings are
not part of a criminal prosecution, and the full panoply of
rights due a defendant in such proceedings does not
apply.” Wolff, 418 U.S. at 566. While
prisoners have a right to submit relevant exculpatory
evidence, they do not have the right to create evidence which
does not already exist because “[p]rison officials must
have the necessary discretion to keep the hearing within
reasonable limits.” Id. See also Freitas v.
Auger, 837 F.2d 806, 812 n.13 (8th Cir. 1988)
(“Freitas was not entitled to a polygraph examination .
. . .”); Rhatigan v. Ward, 187 Fed.Appx. 889,
890-91 (10th Cir. 2006); and Arthur v. Ayers, 43
Fed.Appx. 56, 57 (9th Cir. 2002) (inmates were not entitled
to laboratory testing of substances). Here, internal
investigators identified the papers inside the hand rolled
cigarette as consistent with chemical-laced papers and the
wrapped brown rolling paper used to make the cigarette was
consistent with smoking the substance. ECF 10 at 6, 12 at 1.
Because investigators determined the substance was a
“look-a-like” controlled substance, it did not
meet the criteria for testing. Therefore, this ground does
not identify a basis for habeas corpus relief either.
finally claims that he is entitled to habeas corpus relief on
the basis that prison officials allegedly falsified state
documents, including the conduct report. ECF 2 at 3. It is
certainly true that “prisoners are entitled to be free
from arbitrary actions of prison officials.”
McPherson, 188 F.3d at 787. But there is simply no
evidence that prison officials falsified state documents. The
only thing that Tate points to is the fact that the