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Keplinger v. Warden

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

May 10, 2019

TYSON KEPLINGER, Petitioner,
v.
WARDEN, Respondent.

          OPINION AND ORDER

          JON E. DEGUILIO, JUDGE

         Tyson Keplinger, a prisoner without a lawyer, filed a habeas corpus petition challenging a disciplinary hearing (ISP 17-02-270) where a Disciplinary Hearing Officer (DHO) found him guilty of violating a state law, which in turn is a violation of Indiana Department of Correction (IDOC) policy A-100. ECF 1 at 1. As a result, Keplinger was sanctioned with the loss of 150 days earned credit time. ECF 15-6 at 1. The Warden has filed the administrative record and Keplinger 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).

         In this case, Keplinger was found guilty of violating a state law for defrauding a financial institution in contravention of IDOC policy A-100, which prohibits inmates from violating any state law. See Indiana Department of Correction, Adult Disciplinary Process: Appendix I, at http://www.in.gov/idoc/files/02-04-101APPENDIXI-OFFENSES6-1-2015(1).pdf. The particular state law violation that Keplinger committed involved his participation in credit card fraud with another offender in violation of Indiana Code 35-43-5-8(a), a level 5 felony. The applicable statutory provision states:

(a) A person who knowingly executes, or attempts to execute, a scheme or artifice:
(1) to defraud a state or federally chartered or federally insured financial institution; or
(2) to obtain any of the money, funds, credits, assets, securities, or other property owned by or under the custody or control of a state or federally chartered or federally insured financial institution by means of false or fraudulent pretenses, representations, or promises; commits a Level 5 felony.

Ind. Code § 35-43-5-8(a).

         Investigator Whelan wrote a conduct report charging Keplinger as follows:

In July 2016 an investigation began into information found on offender Payne[‘s] . . . . cell phone that was confiscated from him. In the downloaded information and continued investigation [it] was determined that Payne 150319 and Keplinger 128194 both conspired to gain identifying information of subjects on the streets to gain access to credit cards that were in the subjects' names. They would utilize the credit cards to purchase merchandise from different retailers in the South Bend (St. Joseph county) area and . . . with the assistance of individuals from the area [retrieve and] pick up the merchandise and sell [it] at a discount[ed] profit. Profits would be shared amongst all.
At this time there is no further investigation that can be conducted into the incident. One account was verified through subpoenas a[s] belonging to one person [who] was charged a total of over $8, 000.00 in a twelve day period. Information discovered [o]n the phone [showed] ...

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