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Brown v. Warden

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

December 3, 2018

ERRICK BROWN, Petitioner,
v.
WARDEN, Respondent.

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         Errick 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.

         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, Brown argues there are two grounds which entitle him to habeas corpus relief.

         In his 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 omitted).

         Here, 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. http://www.in.gov/idoc/files/02-04-101APPENDIXI-OFFENSES6-1-2015(1).pdf.

         The 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.

         The 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.

         In 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 ...


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