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Berry v. Warden Pendleton Correctional Facility

United States District Court, S.D. Indiana, Terre Haute Division

November 20, 2019

DEXTER BERRY, Petitioner,
v.
WARDEN Pendleton Correctional Facility, Respondent.

          ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING ENTRY OF FINAL JUDGMENT

          James Patrick Hanlon, United States District Judge

         The petition of Dexter Berry for a writ of habeas corpus challenges a prison disciplinary proceeding identified as ISR 15-11-0031. For the reasons explained in this Entry, Mr. Berry's habeas petition must be denied.

         A. Overview

         Prisoners in Indiana custody may not be deprived of good-time credits or of credit-earning class without due process. Ellison v. Zatecky, 820 F.3d 271, 274 (7th Cir. 2016); Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007); see also Rhoiney v. Neal, 723 Fed.Appx. 347, 348 (7th Cir. 2018). The due process requirement is satisfied with: 1) the issuance of at least 24 hours advance written notice of the charge; 2) a limited opportunity to call witnesses and present evidence to an impartial decision-maker; 3) a written statement articulating the reasons for the disciplinary action and the evidence justifying it; and 4) “some evidence in the record” to support the finding of guilt. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); see also Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974).

         B. The Disciplinary Proceeding

         On October 29, 2015, Investigator J. Poer wrote a conduct report in case ISR 15-11-0031 charging Mr. Berry with offense A-100, violation of state law. The conduct report states:

IC 35-4.1-5-2 Conspiracy and IC 35-44.1-3-5 Trafficking with an Inmate. An investigation into the attempted trafficking of controlled substance “Suboxone” was initiated on August 29, 2015. During the course of the investigation, evidence was discovered that proves offender Dexter Berry 114153 7L-1ARH conspired with Ofd Charles Swift 125162, visitor Kristen Hughes and Ofd Jahhim Easter 243105 to traffic Suboxone strips into the facility.

Dkt. 7-1.

         Investigator Poer wrote a corroborating report of investigation. Dkt. 7-2. Both the conduct report and the investigation report referred to Confidential Case File 15-CIC-0029, dkt. 9 (ex parte), which was not provided to Mr. Berry because of security and safety concerns. The confidential file, which the Court has reviewed in camera, corroborates the allegations in the conduct report and the investigation report. See dkt. 9 at 1-6 (ex parte).

         On November 5, 2015, the screening officer notified Mr. Berry of the charge of violating state law and served him with the conduct report and the notice of disciplinary hearing “screening report.” Dkt. 7-3. Mr. Berry pleaded not guilty and requested a lay advocate. Id. One was appointed. Mr. Berry did not request any witnesses, but he did request that the hearing officer review Confidential Case File 15-CIC-0029. Id.

         The hearing officer held a hearing on case number ISR 15-11-0031 on November 10, 2015. Dkt. 7-6. Mr. Berry submitted a written statement at the hearing which requested, in part, that the hearing not be conducted by a specific hearing officer. Id. at 2. He argued that this conduct report should be dismissed as duplicative of ISR 15-11-0030 and ISR 15-11-0029. Id. He further alleged that the conduct report did not provide him with enough information to challenge the allegations against him. Id. Finally, he requested witness statements from the alleged visitor and offenders with whom he was allegedly trafficking. Id.

         The hearing officer found Mr. Berry guilty of offense A-100 based on the conduct report, Mr. Berry's statement, and the information contained in Confidential Case File 15-CIC-0029. Id. at 1. Mr. Berry received the following sanctions: a written reprimand, 45 days of phone restriction, 365 days of restrictive housing, a 154-day loss of good-time credit, and a two-step demotion in credit class. Id.

         Mr. Berry appealed to the Warden, arguing that he received duplicative conduct reports in cases ISR 15-11-0031 and ISR 15-11-0030, and that due to these duplicative conduct reports, case ISR 15-11-0030 should be dismissed. Dkt. 7-7 at 1. The Facility Designee, Sarah Peckham, denied the appeal on January 4, 2016. Id. at 2. Mr. Berry then appealed to the Final Reviewing Authority. The Appeal Review Officer granted Mr. Berry's request to dismiss case ISR 15-11-0030, but denied Mr. Berry's request to dismiss case ISR 15-11-0031. Dkt. 7-8.

         C. ...


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