United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE.
Leathers, a prisoner in the Miami Correctional Facility
within the Indiana Department of Correction, brings a habeas
corpus petition under 28 U.S.C. §2254 challenging the
prison discipline hearing in which Leathers was found guilty
of possession of a controlled substance in violation of
Disciplinary Rule B-202. As a result, Leathers was sanctioned
with the loss of 60 days earned credit time and demoted from
Credit Class 2 to Class 3. [DE 1 at 1.]
habeas petition challenges the disciplinary proceeding on
three grounds: (1) the Disciplinary Hearing Board (DHB)
failed to let him call the reporting officer as a witness;
(2) the DHB violated his due process by refusing to send the
substance to a lab; and (3) the DHB officer was biased
because he was the supervisor of the reporting officer. [DE 1
at 2-3.] After the Respondent filed its return to order to
show cause and the administrative record, Leathers filed two
traverses, raising for the first time an argument challenging
the sufficiency of the evidence. [DE 10, 12.] In an order
dated October 26, 2017, this Court noted that Leathers'
new argument was not properly presented because it was not
identified as a ground for relief in his petition. [DE 13.]
See Section 2254 Habeas Corpus Rule 2(c)(1)
(“the petition must: (1) specify all grounds for relief
available to the petitioner”); Minniefield v.
Lemmon, 333 Fed.Appx. 131, 132 (7th Cir. 2009).
Nevertheless, I found that Leathers' claim must be
addressed because he made a viable challenge to the
sufficiency of the evidence. See Webb v. Anderson,
224 F.3d 649, 652 (7th Cir 2000). Consequently, Leathers was
deemed to have constructively amended his petition to add the
claim of sufficiency of the evidence. [DE 13 at 2.]
Additionally, the Respondent was ordered to file an
additional brief on the narrow question of whether the DHB
had sufficient evidence to find Leathers guilty. Id.
was charged with possession of “a brown sweet smelling
substance in a solo cup and three pieces of paper towels
soaked in what is believed to be coffee and a sweet smelling
substance.” [DE 5-1.] The DHB found him guilty of a
“look alike” substance. [DE 5-4.] Leathers claims
the substance was just broken tea bags. [DE 5-5.] In its
supplemental brief, the Respondent argues that the DHB's
determination was not arbitrary because the cup was not found
in the trash can, and the substance was covered by paper
towels soaked in coffee, which is a common tactic to mask the
odor of controlled substances. [DE 14 at 3.]
in Indiana custody may not be deprived of credit time,
Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004),
or of credit-earning class, Montgomery v. Anderson,
262 F.3d 641, 644-45 (7th Cir. 2001), without due process.
The due process requirement is satisfied with the issuance of
advance written notice of the charges, a limited opportunity
to present evidence to an impartial decision maker, a written
statement articulating the reasons for the disciplinary
action and the evidence justifying it, and “some
evidence in the record” to support the finding of
guilt. Superintendent, Mass. Corr. Inst. v. Hill,
472 U.S. 445, 454 (1985); Wolff v. McDonnell, 418
U.S. 539, 570-71 (1974); Jones v. Cross, 637 F.3d
841, 845 (7th Cir. 2011); Piggie v. Cotton, 344 F.3d
674, 677 (7th Cir. 2003); Webb, 224 F.3d at 652.
these legal standards in mind, I will address each of
Leathers' arguments in turn. First, he contends that he
was denied a witness statement from the reporting officer.
[DE 1 at 2.] However, the Screening Report reflects that
Leathers only asked that Jason Roudebush be called as a
witness. [DE 5-2.] Roudebush did make a written statement in
lieu of appearing at the hearing stating that the item in the
cup was tea, not a controlled substance. [DE 5-3.] Because
there is no evidence that Leathers actually requested that
the reporting officer be called as a witness at the hearing,
no due process error occurred.
Leathers argues the DHB violated due process by failing to
send the substance to a lab to be tested. [DE 1 at 2.]
However, it is well settled that due process does not require
that the prison comply with his request for testing of the
substance. See, e.g., Manley v. Butts, 699 Fed.Appx.
574, 576 (7th Cir. 2017) (prisoner was “not entitled to
demand laboratory testing”); Rhatigan v. Ward,
187 Fed.Appx. 889, 890-91 (10th Cir. 2006); Arthur v.
Ayers, 43 Fed.Appx. 56, 57 (9th Cir. 2002); Doss v.
Brown, No. 2:13-CV-00176-JMS-WGH, 2014 WL 1571223, at *2
(S.D. Ind. April 17, 2014); Tidwell v. Buss, No.
3:07-CV-254 WL, 2007 WL 2176744, at *1 (N.D. Ind. May 24,
2007). As this court's Judge Lee noted: “Though
Wolff v. McDonnell…permits inmates the right
to present evidence, testing is not presenting evidence - it
is creating it.” Id. Due process was not
violated by the prison's failure to have the substance
tested as Leathers requested.
also contends that the DHB officer must have been biased
because he was the supervisor of the reporting officer. [DE 1
at 3.] 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, 342 F.3d at 666. 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. at 667.
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. Here, at most it
could be said the DHB officer had only a limited involvement
by supervising the reporting officer. He was not
substantially involved in the underlying event of
confiscating the substance from Leathers' cell, therefore
there was no due process violation.
Leathers argues in his traverses that there is insufficient
evidence to find him guilty of possession of a controlled
substance in violation of Rule B-202. The version of Rule 202
of the Disciplinary Code for Adult Offenders in effect at the
time of this case prohibited “[p]ossession or use of
any unauthorized substance controlled pursuant to the laws of
the State of Indiana or the United States Code or possession
of drug paraphernalia.” [DE 14 at 2.] Indiana law
prohibits possession not only of synthetic drugs like K2, but
also synthetic “lookalike” substances. Section
35-31.5-2-321.5(a) and (c) of the Indiana Code define
“synthetic drug lookalike substance” as a
substance that is not a synthetic drug but would lead a
reasonable person to believe it is a synthetic drug based on
a number of factors, including its overall appearance
(including its shape, size, color, consistency and any other
identifying physical characteristics), and how it is
packaged. Tobacco, for example, is not a synthetic drug
lookalike substance. Ind. Code § 35-31.5-2-321.5(b)(4).
Code § 35-48-4-11.5 sets out a schedule of criminal
offenses ranging from Class B infraction to Level 6 felony,
stating “[a] person who possesses a synthetic drug or
synthetic drug lookalike substance commits possession of a
synthetic drug or synthetic drug lookalike substance, a Class
B infraction.” A person who “knowingly or
intentionally” possesses a synthetic drug or synthetic
drug lookalike substance commits a Class A misdemeanor, and
if the person has a prior unrelated conviction, the offense
is a Level 6 felony. Ind. Code § 35-48-4-11.5.
the finding of the DHB was that Leathers was guilty of
possessing a lookalike substance. [DE 5-4.] Based on the
foregoing, this must mean that he was found guilty of
possessing a substance that “looks like” a
synthetic drug. All of which raises the question, was there
“some evidence” to support such a finding?
to the sufficiency of the evidence are governed by the
“some evidence” standard. “[A] hearing
officer's decision need only rest on ‘some
evidence' logically supporting it and demonstrating that
the result is not arbitrary.” Ellison v.
Zatecky, 820 F.3d 271, 274 (7th Cir. 2016); see
Eichwedel v. Chandler, 696 F.3d 660, 675 (7th Cir. 2012)
(“The some evidence standard . . . is satisfied if
there is any evidence in the record that could support the
conclusion reached by the disciplinary board.”)
(citation and quotation marks omitted). In deciding if the
guilty finding was supported by some evidence, it is not my
province to assess the comparative weight of the evidence
underlying the disciplinary board's decision; rather
“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 (emphasis added).
“some evidence” standard is much more lenient
than the “beyond a reasonable doubt” standard.
Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir.
2002). It has even been described as a “meager
threshold.” Jones, 637 F.3d at 849. But, of
course, “some” evidence is not the same “no
case, neither the reporting officer nor the DHB specified
what the substance in question resembled. And, frustratingly,
even though I gave the Respondent an additional opportunity
to address the narrow question of whether the DHB had
sufficient evidence to find Leathers guilty, it still did not
identify what ...