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Middleton v. Warden

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

December 5, 2018

COREY MIDDLETON, Petitioner,
v.
WARDEN,[1] Respondent.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE

         Corey Middleton, a pro se prisoner, filed a habeas petition under 28 U.S.C. § 2254 challenging a prison disciplinary proceeding where he was found guilty of both use/possession of a cellular device in violation of A-121 and engaging in unauthorized organizational (gang) activity in violation of B-208. The charges were initiated on March 6, 2017, when Investigator Dustin prepared two conduct reports. Here's what the first conduct report -- the one dealing with the cellular phone -- says:

On 02/27/2017 Offender Underwood's Phone report was reviewed for evidence. Within the phones memory were located several photos containing pictures that were saved to Offender Underwood's phone and Facebook page. These pictures displayed Offender Corey Middleton # 134893 and other Offenders displaying and posing with each other while making hand gesture Gang signs. These pictures were taken on the back stairwell of the cell house and inside of a cell with a cell phone Offender Middleton had use or possession of.

ECF 23-1.

         Similarly, the conduct report for unauthorized gang activity stated:

On 02/27/2017 Offender Underwood's Phone report was reviewed for evidence. Within the phones memory were located several photos containing pictures that were saved to Offender Underwood's phone and Facebook page. These pictures displayed Offender Corey Middleton # 134893 and other Offenders displaying and posing with each other while making hand gesture Gang signs.

ECF 23-8.

         On March 23, 2017, Middleton was formally notified of the charges and given a copy of both conduct reports. ECF 23-1, 23-2; 23-8, 23-9. He did not request any witnesses but did ask for “the investigation file.” ECF 23-2; 23-9.

         A hearing on both charges was held the following day. ECF 23-4; 23-10. Middleton did not make any statement on his own behalf. The hearing officer denied Middleton's request for the investigation file because it was an Internal Affairs investigation file which is confidential. Id. Based on the confidential Internal Affairs file and the conduct reports, the hearing officer found Middleton guilty of both charged offenses. Id. The sanctions imposed for being found guilty of use or possession of a cellular device included the loss of 60 days of earned-time credits. The sanctions imposed for being found guilty of engaging in unauthorized organizational or gang activity included the loss of 60 days of earned-time credits as well as a demotion from credit class I to credit class II. This means Middleton will earn good time credits at a slower rate going forward. His administrative appeals were denied. ECF 23-6; 23-12.

         When a due process liberty interest is at stake in prison disciplinary hearings, the Fourteenth Amendment guarantees prisoners certain procedural due process protections: (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 disciplinary decision. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985).

         Middleton raises three issues[2] in his petition, which can be fairly consolidated into one: whether he was improperly denied evidence when he was not permitted to review the investigation file. Although Middleton wanted to review the investigation file, he did not have a right to do so. Middleton had a right to request evidence in his defense. See Wolff, 418 U.S. at 566. But the right to personally review the evidence is not absolute. Far from it. As one might imagine, there are very good reasons is the prison context - safety and security for starters -- for keeping confidential files from offenders. See White v. Ind. Parole Bd., 266 F.3d 759, 767 (7th Cir. 2001) (“prison disciplinary boards are entitled to receive, and act on, information that is withheld from the prisoner and the public . . . “). Indeed, in this case, the “investigation packet” contains interviews, information from other offenders involved in the underlying activities and recordings that, if viewed by Middleton, might jeopardize institutional safety and reveal investigation techniques. See Wolff, 418 U.S. at 566; Jones v. Cross, 637 F.3d 841, 847 (7th Cir. 2011). Thus, the hearing officer appropriately considered the information contained in the investigation file without allowing Middleton to personally review it. Because the hearing officer considered all the relevant evidence, including staff reports and the investigation file, there was no violation of Middleton's due process rights.

         I do recognize that Middleton would be entitled to view (at least some of) the investigation file if it contained exculpatory evidence. Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992) (due process only requires production of “exculpatory” evidence). Exculpatory in this context means evidence which “directly undermines the reliability of the evidence in the record pointing to [the prisoner's] guilt.” Meeks v. McBride, 81 F.3d 717, 720 (7th Cir. 1996). But Middleton does not argue that the investigation file is exculpatory. What's more, I have reviewed the investigation report and can confirm it does not contain any exculpatory evidence.

         Furthermore, even if the hearing officer improperly kept that investigation file from Middleton, the exclusion of evidence will be deemed harmless unless there is some indication from the record that the evidence “might have aided [the prisoner's] defense.” Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003). Middleton generally contends that he could not defend against the charges because his requests to review the investigation file were denied. ECF 3 at 2-3. But he has not explained - or even alleged with any detail - how viewing anything in the investigation file would have exculpated him from the charges. Nor has he shown that his defense was hindered in any way by not having access to that file. Middleton does not point to any specific example of how his defense was harmed or that there was a substantial or injurious effect on the outcome of the proceeding.

         Because the investigation file is under seal, I am not at liberty to discuss much of its contents. But I am free to talk about comments Middleton made during the investigation, which are part of that file. Middleton was interviewed at length about the events leading up to these charges. In this interview, investigators informed Middleton that he was going to be charged with use of a cell phone and unauthorized organizational activity because pictures found on a cell phone showed him posing with other offenders and making hand gestures, which the investigator believed were gang signs. So, even though the investigation file was not shown to Middleton at the hearing, the photographic evidence used to create the conduct reports did not come as any surprise. He was aware of the photographs in that file and knew that they were the basis for his charges. During the interview, Middleton acknowledged posing for those pictures and making hand gestures. At that time, he tried to convince the investigator that the hand gestures were not gang-related. I am not sure why Middleton did not raise that defense with the hearing officer. The hearing officer could have then decided whether to believe Middleton. But Middleton chose not to raise that argument or give any statement at the disciplinary hearing. At the end of the day, Middleton has not ...


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