United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
Browning, a prisoner without a lawyer, seeks habeas corpus
relief from a finding by a prison disciplinary hearing
officer that he was guilty of engaging in sexual activity in
the visitors area in violation of a prison rule. As a result
of the finding of guilt, Browning was docked 90 days of good
time credit and demoted one-step in credit class. This means
he will accrue good time credit at a slower rate as a result
of the finding of guilt.
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.
sets out three arguments in his petition but they all relate
to whether there was sufficient evidence to find him guilty
of the charged offense - having contact of a sexual nature
with a visitor. Here's how Browning frames the issue in
his petition: “ I was accused of . . . receiving a hand
job . . . A hand job means someone is being jacked off. You
cannot give someone a hand job . . . through clothing. A
[sic] actual hand . . .must touch, grab and wrap around the
penis.” DE 1 at 2.
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 other words, there must be “some
evidence” in the record to support the guilty finding.
Hill, 472 U.S. at 455. This is an exceedingly low
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).
really doesn't dispute that he engaged in some sort of
intimate touching with his wife, the visitor in question.
This is hardly surprising since the event was captured on
videotape. See DE 6-1, 6-2 and 6-3. The real issue
is whether having ones penis manipulated by a visitor, albeit
over the clothes, can reasonably be construed as a sexual
act. The offense that Browning was specifically charged with
is A114 under the Indiana Department of Corrections Adult
Disciplinary Code. The offense is called “Sexual Act
with a Visitor.” (DE 6 at 6). Here's how the
offense is defined:
Contact of a sexual nature by an offender with a visitor
including: contact between the penis and the vagina or the
penis and the anus including penetration, however slight;
contact between the mouth and the penis, vagina or anus; or
penetration of the anal or genital opening of a visitor, by a
hand, finger or other object. ...”
DE 6 at 6 (citing to the code). What is clear from this
definition is that contact of a sexual nature between an
offender and a visitor is prohibited. To illustrate what is
meant by the phrase “contact of a sexual nature,
” the drafters of the provision chose to provide
specific examples of prohibited behavior. But it is also
clear that those examples are illustrative not exhaustive. We
know this because the provision in question, after defining
the offense, employs the open ended word
“including.” This is a signal that what follows
are examples of prohibited conduct, but what is prohibited is
not limited to the examples.
there evidence that Browning had “contact of a sexual
nature” with a visitor? According to the Report of
Disciplinary Hearing Video Evidence Review form, here's
what was seen on the video: “At approx. 2:54 pm
offender Browning un does [sic] his pants while Ms. Browning
leans over and grabs his crotch area. They try to hid [sic]
what is going on, but she is stroking his penis and also
kisses him. You can she she [sic] is giving him a hand
job.” DE 6-3. Even if I accept Browning at his word
that this was touching “through the clothing, ”
it sure sounds like contact of a sexual nature to me. In all
events, it readily meets the “some evidence”
standard that governs review in these types of cases.
argues in a supplement to his petition that perhaps he should
have been charged with some other offense like
“Unauthorized contact” in violation of Section
473 of the Adult Disciplinary Code. See DE 3. It may
well be that Browning violated other prison rules, but that
is not for me to decide. The only issue is whether there was
some evidence that he violated the provision that he was
charged with, and there is.
Browning wants to appeal this order, he does not need a
certificate of appealability because he is challenging a
prison disciplinary proceeding. See Evans v. Circuit
Court, 569 F.3d 665, 666 (7th Cir. 2009). However, he
may not proceed in forma pauperis on appeal because pursuant
to 28 U.S.C. § 1915(a)(3) an appeal in this case could
not be taken in good faith.
these reasons, Tavares Browning's petition for writ of
habeas corpus is DENIED. The clerk ...