United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Brown, a prisoner without a lawyer, filed an amended habeas
corpus petition challenging his disciplinary hearing (WCC
16-10-421) where a Disciplinary Hearing Officer (DHO) found
him guilty of possessing a cell phone in violation of Indiana
Department of Correction (IDOC) policy A-121 on November 2,
2016. ECF 5 at 1, ECF 9-6 at 1. As a result, he lost 30 days
earned credit time, received a one-step demotion in credit
class, which was suspended, and lost another 30 days of
earned credit time from disciplinary case-WCC 16-07-210. ECF
9-6 at 1. The Warden has filed the administrative record and
Brown filed a traverse. Thus the 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). In his amended petition,
Brown argues there are two grounds which entitle him to
habeas corpus relief.
first ground, Brown asserts the DHO did not have sufficient
evidence to find him guilty of possessing a cell phone. ECF 5
at 2. 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).
[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
Brown was found guilty of violating IDOC offense A-121, which
prohibits inmates from “[u]nauthorized use or
possession of any cellular telephone or other wireless or
cellular communication device.” Adult Disciplinary
Process, Appendix I.
Conduct Report charged Brown as follows:
On 10/27/2016, I, Officer S. Gutierrez was conducting a video
review for another offenders [sic] evidence regarding that
offenders [sic] conduct report. While viewing the CCTV
footage regarding a cell phone found on 10/18/2016 behind the
microwave/hotpot on 5WA by the offender restroom. Offender
Brown, Errick #224350 come out of the offender restroom on
5WA and appears to plug something into the outlet that is
behind the hotpot/microwave area at 9:57:09 PM. Offender
Brown, Errick then walks around in the dayroom before sitting
down by the microwave until he gets up at 10:22:44 PM. The
Officer on the unit then finds a cell phone behind the hotpot
and microwave at 10:40 PM. No other offenders are seen
putting their hands anywhere near where the cell phone was
found in between those times.
ECF 9-1 at 1.
written video summary states:
On the above date and time, I, Ofc. S. Gutierrez conducted a
video review regarding this incident. On the video footage
you can see offender Brow[n], Errick, #224350 in the offender
restroom at 9:57:09 PM. Brown, Errick comes out of the
restroom and is seen appearing to plug something in behind
the microwave/hotpot area and then walks around the dayroom
before sitting down next to the microwave/hotpot area. The
offender then gets up from the area at 10:24:11 PM and walks
back to his bed area. The officer finds the cell phone behind
the hotpot at 10:39:36.
ECF 9-2 at 1.
assessing the evidence, the DHO determined there was
sufficient evidence in the record to find Brown guilty of
violating offense A-121. A conduct report alone can be enough
to support a finding of guilt. McPherson, 188 F.3d
at 786. Such is the case here. The reporting officer based
the conduct report on security video footage of the incident.
As the Warden points out in the return to the order to show
cause, the reporting officer observed Brown exiting from the
restroom and approach the table with the hotpot and microwave
on it in the dayroom. ECF 9 at 9-10. He was then seen
reaching into his pocket and, after that, reaching behind the
hotpot. Id. at 10. Brown's hands were behind the
hotpot for more than 10 seconds and then he moved the table
with the hotpot and microwave on it back against the wall.
Id. He then walked away a few feet and turned around
and came back to the table with the hotpot and microwave on
it. Id. Brown next spent about 20 seconds looking
around the hotpot and appeared to move something behind the
hotpot. Id. He then proceeded to walk around the
dayroom and bunk area for a few minutes and came back to sit
at a table near the table with the microwave and hotpot on it
while he wore headphones. Id. Brown sat at the table
alone, facing out toward the room for over 20 minutes, as if
he was acting as a lookout. Id. He then stood up and
left the table. Id. About 15 minutes later, a prison
officer walked through the dayroom and discovered a cell
phone behind the hotpot. Id. A photograph taken of
the cell phone substantiates the discovery of the cell phone.
ECF 5 at ...