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Niemann v. Warden

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

January 29, 2019

BRADLEY NIEMANN, Petitioner,
v.
WARDEN, Respondent.

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE UNITED STATES DISTRICT COURT

         Bradley 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.

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

         The 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 Care.”

ECF 6-1 at 1.

         Officer 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.

         On 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. Id.

         In his 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.

         A 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 ...


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