United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
Niemann, a prisoner without a lawyer, filed a habeas corpus
petition challenging a disciplinary hearing (WCC 15-03-152)
where a Disciplinary Hearing Officer (DHO) found him guilty
of trafficking in violation of Indiana Department of
Correction (IDOC) policy A-113 on March 11, 2015. ECF 1 at 1.
As a result, he was sanctioned with the loss of 180 days
earned credit time and a one-step demotion in credit class.
Id. However, after Niemann filed his petition with
this court and stated why he thought the DHO was wrong, the
IDOC's Final Reviewing Authority reconsidered
Niemann's appeal and reduced his offense from trafficking
(A-113) to bribing/giving (B-233) because he possessed a
thing of value-a protein shake mix- without proper
authorization. ECF 6-10 at 1. His 180 days earned credit time
deprivation was reduced to 90 days, but his other sanctions
remained the same. Id. The Warden has filed the
administrative record and Niemann has filed a traverse. Thus,
this 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).
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
Niemann was originally charged with and found guilty of
trafficking in violation of IDOC offense A-113. ECF 6-7 at 1.
Specifically, IDOC offense A-113 prohibits inmates from
“[e]ngaging in trafficking (as defined in IC
35-44.1-3-5) with anyone who is not an offender residing in
the same facility.” Indiana Department of Correction,
Adult Disciplinary Process, Appendix I.
on February 20, 2018, the IDOC's Final Reviewing
Authority reconsidered Niemann's appeal and modified the
charge from trafficking (offense A-113) to bribing/giving
(B-233) because he possessed a thing of value without proper
authorization. ECF 6-10 at 1. IDOC offense B-233 prohibits
inmates from “[g]iving or offering a bribe or anything
of value to a staff member, authorized volunteer, visitor or
contractor or possessing, giving to or accepting from any
person anything of value without proper authorization.”
Appendix I, supra.
Conduct Report charged Niemann as follows:
On the above date and approximate time, I, Sgt. C. Sipich,
along with Ofc. M. Edwards were inventorying Offender
Niemann's #252188 property. Inside his property box I
found a “Universal Super Whey Pro.” This is a
protein shake mix. After some investigation, it was confirmed
this item cannot be obtain thru commissary or “I
ECF 6-1 at 1.
Edwards provided the following witness statement regarding
the incident: “Along with Sgt. C. Sipich, we were
inventorying offender Niemann's #252188 property. Sgt.
Sipich found inside his property box ‘Universal Super
Whey Pro.' This is a protein shake mix.” ECF 6-2 at
1. This evidence was then confiscated and sent to the
prison's internal affairs office. ECF 6-3 at 1. Two
photographs documented the discovery of the protein shake
mix. ECF 6-4 at 1-2.
March 11, 2015, the DHO held a hearing in case WCC 15-03-152.
ECF 6-7 at 1. At that time, Niemann provided the following
statement: “I don't have anything to say.”
Id. After considering the evidence, the DHO found
Niemann guilty of trafficking in violation of offense A-113.
petition, Niemann asserts there was insufficient evidence for
the DHO to find him guilty of violating offense A-113. ECF 1
at 2. In this regard, he explains the “[c]onduct report
does not establish trafficking as defined by law or prison
rules of conduct.” Id. In the return to the
order to show cause, the Respondent concedes this point and
states: “Niemann is correct that the evidence did not
support that he was guilty of offense A-113,
trafficking.” ECF 6 at 6. However, at the same time,
the Respondent contends there is sufficient evidence to
sustain the modified charge-B-233-possessing a thing of value
without proper authorization. Id. The Respondent
explains the B-233 criteria was satisfied because the shake
mix was found in Niemann's property box and could not be
purchased at the commissary or through “I Care.”
Id. at 6-7. Furthermore, the Respondent states that
Niemann was properly notified of the new charge because the
facts from the trafficking charge gave him notice that he
could be charged with the modified bribing/giving charge.
Id. at 5.
crucial issue and one that is central to the court's due
process analysis is whether Niemann was properly notified of
the new charge against him. Prisoners are entitled to advance
notice of the charges against them. Wolff, 418 U.S.
at 563-64. This requirement is satisfied so long as the
underlying basis of the charge was adequate to give the
prisoner notice of the allegations against him. Northern
v. Hanks, 326 F.3d 909, 910 (7th Cir. 2003). However,
that is not what happened in this case. While Niemann was
properly notified of the original charge of trafficking
(A-113) when he received the screening report (ECF 6-5 at 1)
and conduct report (ECF 6-1 at 1), he was not notified of the
new charge until after he received the letter from the Final
Reviewing Authority on February 20, 2018. ECF 6-10 at 1. In
fact, this change in the charge did ...