United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
Burke, a prisoner without a lawyer, filed a habeas corpus
petition challenging the prison disciplinary hearing where a
disciplinary hearing officer (DHO) found him guilty of
Possession of a Controlled Substance in violation of Indiana
Department of Correction offense B-202 and sanctioned him
with the loss of earned credit time on March 19, 2018, under
case number ISO 18-03-2. ECF 1. He raises two grounds in his
petition. Id. The Warden filed a response. ECF 7.
Burke filed a traverse. ECF 10.
Ground One, he argues there was no evidence to support the
finding of guilt. In the disciplinary context, “the
relevant question is whether there is any evidence in the
record that could support the conclusion reached by the
disciplinary board.” Superintendent v. Hill,
472 U.S. 445, 455-56 (1985).
[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
inmate violates the prison rule against Possession or Use of
Controlled Substance by “Possession or use of any
unauthorized substance controlled pursuant to the laws of the
State of Indiana or the United States Code, possession of
drug paraphernalia, possession/use of a synthetic drug, or
drug lookalike.” ECF 7-1. Here, the Conduct Report
On 3/8/2018 I was activated for an Esquad shakedown of ISO.
Upon entering the West 2 wing I conducted a search of Row2
Bed5 offender Burke #103288. Upon searching of his cabinet I
seen a tied baggy of unknown green leafy substance. I then
had our K9 unit run the Drug dog on the green leafy
substance, it was at this time the dog indicated on the
substance. I then confiscated the baggy and filled out a
confiscation slip for the offender and turned it in to II.
This conduct report stands as written.
was not assigned to Row 2, Bed 5; his bed assignment
was Row 3, Bed 5. ECF 7-8. Three times the Conduct
Report identifies the location as Row 2, Bed 5.
However, the Confiscation Notice shows the “Green Leafy
Substance” was taken from Row 3, Bed 5. ECF
7-2 at 1. So too, the Evidence Record shows it was found in
Row 3, Bed 5. ECF 7-2 at 2. The evidence record card
is also photographed with the seized substance and
Burke's ID badge. All of this contradictory information
was before the DHO who had to determine whether to believe
the Green Leafy Substance was found in Row 2 or Row 3.
Clearly the DHO determined it had been found in Row 3 and was
Burke's property. In reviewing a disciplinary
determination for sufficiency of the 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). Here, based on the
Confiscation Notice and the Evidence Card photographed with
his ID badge, it was not arbitrary for the DHO to have found
Burke guilty. Additionally, Burke also argues the Green Leafy
Substance was later tested and found to be a “Look a
like substance.” ECF 7-3. However, since the definition
of B-202 includes look-a-like substances, it was not
arbitrary for the DHO to have found Burke guilty of
Possessing a Controlled Substance.
In Ground Two, Burke argues he was denied 24 hour advance
written notice of the factual basis of the charges before the
hearing was held. Wolff v. McDonnell, 418 U.S. 539
(1974), requires that an inmate be given 24 hour advance
written notice of the factual basis of the charges against
him. However, he waived his right to 24 hour notice. ECF 7-4.
Therefore it could not be a due process violation to have
held the hearing less than 24 hours after he was notified of
the charge against him. Here, Burke was notified of the
charges on March 13, 2018. Id. The hearing was held
on March 19, 2018. ECF 7-7. Nevertheless, he argues he needed
a new notice because the charges were changed from possessing
a controlled substance to possessing a look-a-like substance.
Wolff requires advance notice of sufficient facts to
inform the accused of the behavior with which he is charged.
Wolff does not require such a notice to identify the
specific number of the rule violation, its title, nor
severity. See Northern v. Hanks, 326 F.3d 909, 911
(7th Cir. 2003) (No due process violation where the Final
Reviewing Authority increased the charge on appeal.) and
Salazar v. Wilson, 498 Fed.Appx. 600, 603 (7th Cir.
2012) (“The modification did not violate Salazar's
right to due process; the additional charge relies on the
same evidence introduced at the disciplinary hearing and
Salazar's defense applied equally to both
charges.”). Here, the relevant underlying facts
remained unchanged: a Green Leafy Substance was found in his
bed area. Whether that substance was an illegal drug or a
look-a-like substance, the defenses were the same: he argued
it was not his bed area and the substance was tea. Therefore
his defense was not prejudiced and he was not denied due
Burke wants to appeal this decision, he does not need a
certificate of appealability because he is challenging a
prison disciplinary proceeding. See Evans v. Circuit
Court, 569 F.3d 665, 666 (7th Cir. 2009). However, he
may not 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 good faith. Nevertheless,
if Sample files a notice of appeal, he may ask the United
States Court of Appeals for leave to proceed in forma
pauperis by filing a motion with the Circuit Court along with
a copy of this order demonstrating that he has already been
denied leave to proceed in forma pauperis by the District
these reasons, the court:
DENIES the habeas corpus petition (ECF 1);
DIRECTS the clerk to enter judgment; and (3) DENIES Leroy
Burke leave to ...