United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
Cross, a prisoner without a lawyer, filed a habeas corpus
petition challenging the disciplinary decision (MCF 19-1-18)
at the Miami Correctional Facility in which a disciplinary
hearing officer found him guilty of possession of a
controlled substance in violation of Indiana Department of
Correction Offense 202. After a disciplinary hearing, he was
sanctioned with a loss of sixty days of earned credit time.
The court must dismiss the petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court.” Section 2254 Habeas Corpus Rule 4.
Cross claims entitlement to habeas relief because
correctional staff didn't provide him with a video
surveillance recording of the pat down search. He requested
this recording but it was not available on the system.
[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).
“[T]he inmate facing disciplinary proceedings should be
allowed to call witnesses and present documentary
evidence.” Wolff v. McDonnell, 418 U.S. 539,
566 (1974). However, “[p]rison officials must have the
necessary discretion to keep the hearing within reasonable
limits and to refuse to call witnesses that may create a risk
of reprisal or undermine authority. Id.
Cross was charged with possession of controlled substance.
The administrative record included reports from two
correctional officers stating that they found three small
pieces of an orange substance wrapped in cellophane during a
pat down search, photographs of the orange substance, and an
email from internal affairs identifying the orange substance
as suboxone. Consequently, even though a video recording of
the pat down search wasn't presented at the hearing, the
administrative record contains some evidence that Mr. Cross
possessed a controlled substance. The reasoning for not
presenting the video recording to the hearing officer was
sound; it didn't exist. The claim that he wasn't
provided with a video surveillance recording of the pat down
search is not a basis for habeas relief.
Cross further argues that he received inadequate notice
because he didn't get a copy of the video surveillance
recording summary before the hearing. This summary, in its
entirety, reads, “The DVR evidence you requested is not
available in the system.” To satisfy procedural due
process, “written notice of the charges must be given
to the disciplinary-action defendant in order to inform him
of the charges and to enable him to marshal the facts and
prepare a defense.” Wolff v. McDonnell, 418
U.S. at 564. This notice must be given no less than
twenty-four hours before the hearing. Id. The
administrative record includes a screening report showing
that Mr. Cross received notice of the charges and the conduct
report on January 5, 2019. It also includes a hearing report
showing that the hearing was held six days later. Because Mr.
Cross received notice of the charges more than twenty-four
hours before the hearing, the claim that he didn't
receive adequate notice is not a basis for habeas relief.
Cross also argues that he is entitled to habeas relief
because he didn't receive a notice of confiscation form
on the day of the pat down search; because the screening
officer falsely stated that Mr. Cross refused to sign the
notice of confiscation form; because the hearing officer
refused to continue the hearing to allow for scientific
testing on the orange substance; and because the screening
officer didn't follow the chain of custody procedure with
respect to the orange substance. These arguments don't
relate to the procedural safeguards for prison disciplinary
proceedings enumerated in Wolff v. McDonnell, 418
U.S. 539 (1974), and the United States Supreme Court has
indicated that this list of requirements is exhaustive.
White v. Indiana Parole Bd., 266 F.3d 759, 768 (7th
Cir. 2001) (citing Baxter v. Palmigiano, 425 U.S.
308, 324 (1976)). Moreover, the failure to follow
departmental policy does not rise to the level of a
constitutional violation. See Estelle v. McGuire,
502 U.S. 62, 68 (1991) (“state-law violations provide
no basis for federal habeas relief”); Keller v.
Donahue, 271 Fed.Appx. 531, 532 (7th Cir. 2008)
(inmate's claim that prison failed to follow internal
policies had “no bearing on his right to due
process”). Therefore, these arguments are not a basis
for habeas relief.
Cross hasn't asserted a valid claim for habeas relief, so
the court denies the habeas petition. Mr. Cross doesn't
need a certificate of appealability to appeal this decision
because he is challenging a prison disciplinary proceeding.
See Evans v. Circuit Court, 569 F.3d 665, 666 (7th
Cir. 2009). But he can't proceed in forma pauperis on
appeal because the court finds pursuant to 28 U.S.C. §
1915(a)(3) that an appeal in this case could not be taken in
these reasons, the court:
(1) GRANTS the motion for leave to proceed in forma pauperis
(2) WAIVES the filing fee;
(3) DENIES the habeas corpus petition (ECF 1);
(4) DIRECTS the clerk to enter judgment and close this ...