976 F.2d 308 (7th Cir. 1992), 91-2282, Forbes v. Trigg

Docket Nº:91-2282.
Citation:976 F.2d 308
Party Name:Jerry K. FORBES, Petitioner-Appellant, v. Clarence TRIGG, Superintendent, Respondent-Appellee.
Case Date:September 15, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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976 F.2d 308 (7th Cir. 1992)

Jerry K. FORBES, Petitioner-Appellant,


Clarence TRIGG, Superintendent, Respondent-Appellee.

No. 91-2282.

United States Court of Appeals, Seventh Circuit

September 15, 1992

Argued June 8, 1992.

Rehearing and Rehearing En Banc

Denied Oct. 21, 1992.

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[Copyrighted Material Omitted]

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Andrew G. Klevorn, Bruce Zessar (argued), Sidley & Austin, Chicago, Ill., for petitioner-appellant.

David A. Arthur, Dist. Atty. Gen. (argued), Office of the Atty. Gen., Federal Litigation, Indianapolis, Ind., for respondent-appellee.

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

BAUER, Chief Judge.

In this appeal, we review the district court's grant of summary judgment on a petition for a writ of habeas corpus in favor of the respondent, Clarence Trigg, Superintendent of the Indiana Youth Center. The petitioner presents four challenges to the district court's denial of his petition for habeas corpus. Although we deny Forbes' petition, we find that the Indiana Department of Corrections' ("IDOC") rule which provides that offenders (inmates) and staff who are requested to serve as witnesses in disciplinary hearings are not required to appear and testify violates IND.CODE ANN. § 11-11-5-5(a)(5) (Burns 1988) and the Due Process Clause of the Fourteenth Amendment of the Constitution.

I. Facts

Forbes was confined at the Indiana Youth Center ("IYC") in Plainfield, Indiana during 1990. On August 7, 1990, Forbes was assigned to work in the Officer's Barber Shop in the IYC Custody Building. He began work in the shop on August 15, 1990. Because the Custody Building houses the visiting room and vending machines that are serviced by outside vendors, inmates working in the building have an opportunity to meet, and potentially to exchange contraband with people from outside the prison. Because of this risk, Custody Building rules provide that inmates working in the building are subject to urine testing for illegal drug use. See Criteria for Offenders Assigned to the Custody Building, Issued December 15, 1989 ("Criteria"), and Rules and Regulations Governing Offenders Working in the I.Y.C. Officer's Barber Shop in the Custody Building, Issued March 23, 1990 ("Rules and Regulations"), Appellant's Appendix at 5.

Clinton Crider supervised the inmates working in the Custody Building. Crider stated in an affidavit that all Custody Building workers are tested approximately every ninety days. The Rules and Regulations were posted in the barber shop on a bulletin board approximately ten feet from Forbes' work station. See Crider Affidavit, Appellant's Appendix at 3. Prison officials also maintain that Forbes was informed of these rules before he began work in the shop, and received a copy of them. Forbes contends that he was never informed of the urine test requirement and that he never received a copy of the rules. Forbes also states that when he began work in the shop, Crider said he did not like Forbes because Forbes was a "jailhouse lawyer," and that he would try to have Forbes reassigned. Two days after Forbes began work, on August 15, 1990, Crider ordered a urine test for all inmates working in the Custody Building.

Forbes refused the test. Before Crider ordered Forbes to take the test, he advised Forbes of the consequences of taking the test and having a positive result, or of refusing the test altogether. In the refusal form he completed that morning, Forbes stated that he refused because "It is not against the law or rules of IYC to be a drug addict; there is no IYC policy; there is no probable cause." Health Care Services Refusal Form, Appellant's Appendix at 3. Crider charged Forbes with refusal to obey an order from a staff member, a class C offense under the IDOC Adult Disciplinary Policy (the general rules which apply to all inmates). See Offense No. 347, Appellant's Appendix at 6. The IYC Rules and

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Regulations, Section XXII at 69 provide: "Do what you are told to do by any staff member. If you feel the order is unjust, you may request to talk to a staff member about it after you have done as instructed." (emphasis in original) (quoted in Forbes v. Trigg, No. IP 90-1931-C, slip. op. at 4 (S.D.Ind. May 18, 1991)).

On August 21, 1990, the IYC Conduct Adjustment Board ("CAB") held Forbes' disciplinary hearing. Before the hearing, Forbes requested three witnesses: Clarence Trigg, the Superintendent of the IYC, Major Alexander, Crider's immediate superior, and Crider. Trigg and Alexander refused to appear without explanation. Crider refused to appear, stating that "I can not [sic] witness because I am the author of the [disciplinary] report." Notice to Witness/Lay Advocate, Appellant's Appendix at 8.

Forbes also filed a written motion to dismiss the charge, or "for a Finding of Not Guilty." See Appellant's Appendix at 10. In this motion, he acknowledged that IYC rules required him to obey staff orders, and that he received copies of these rules. Motion to Dismiss, at 1. Forbes stated, however, that because these rules did not expressly provide for urine testing, he could not be punished for refusing to obey an order requiring one until he was given a written copy of the urine-testing rule. Id. He also complained that the IYC's urine-testing procedure turned up false positives because samples were not frozen. Further, Forbes argued that he could not be punished for refusing to submit to the test because Crider had no reasonable suspicion or probable cause to believe he might be using drugs, and because the test was not administered randomly. Finally, Forbes complained that the CAB procedures violate due process because his witnesses were not compelled, there was insufficient evidence of his guilt, and inadequate written records were kept of CAB proceedings.

Forbes testified at the hearing. The only other evidence presented was Crider's conduct report and Forbes' Health Care Services Refusal Form. The CAB found Forbes guilty of refusing to obey a staff member's order. In the Disciplinary Hearing Report the Board made the following findings:

CAB [c]onsidered Conduct Report, offender[']s plea and testimony, the findings [a]re, by Forbes # 853165 own admission did Refuse an order on 8-15-90, when Sgt. Crider gave offender Forbes # 853165 an order to submitt [sic] to a urine specimen, Forbes Refused to submitt [sic] the urine specimen, as Reported by Credible Sgt. Crider, found Guilty.

Disciplinary Hearing Report, Appellant's Appendix at 9. The CAB changed Forbes' work assignment and deprived him of 30 days of good time. After the hearing, Forbes was segregated from the general prison population for 72 hours. Although the CAB had not ordered the segregation, Harley Crabb, the correctional officer who chaired the CAB, ordered that Forbes be segregated because he threatened Crider and another correctional officer. On August 24, Forbes was released from segregation because Crabb determined that Forbes "calm[ed] down." Affidavit of Harley Crabb, Appellant's Appendix at 13.

Forbes appealed the CAB's decision to Superintendent Trigg. Trigg affirmed the CAB's rulings, and Forbes raised a final appeal to John Nunn, the Deputy Commissioner of Operations of the IDOC. Before issuing his denial of Forbes' appeal, Nunn verified with IYC officials that the urine-testing rule had been posted in the Custody Building on a bulletin board close to Forbes' work station. See Memorandum from Paul O'Haver, Assistant Superintendent, IYC to John Nunn, dated August 23, 1990, Appellant's Appendix at 12. In the memo, O'Haver notes that IYC did not have a policy or procedure for urine testing, other than the posted Custody Building rule. Id. Nunn's denial letter states:

All materials relevant to this appeal have been reviewed and there is no evidence of procedural or due process error. The conduct report is quite clear and does support the charge. The sanctions imposed were well within the guidelines of the Disciplinary Code for Adult Offenders and you present no evidence on appeal

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which would indicate that the action of the CAB should be modified in any way.

Nunn Appeal Denial Letter of 10/2/90, Appellant's Appendix at 11.

Forbes filed this action arguing that the CAB proceeding, the administrative review, and the IYC urine-testing rule are constitutionally infirm. Because the Indiana Supreme Court has held that Indiana courts do not have jurisdiction to review the decisions of prison disciplinary boards, Hasty v. Broglin, 531 N.E.2d 200 (Ind.1988), Forbes has no state judicial remedies to exhaust. In his petition, Forbes argued that his due process rights include judicial review in the Indiana state courts of the CAB proceedings. Forbes also argued that because he did not have actual notice of the urine-testing rule, he was not obliged to follow Crider's order, and could not be punished for refusing to do so. Further, Forbes contended that the urine-test rule was enforced arbitrarily and that Crider ordered the test to harass him. He renewed his claim that Crider needed probable cause or a "reasonable suspicion" of drug use to substantiate his order requiring Forbes to submit to a urine test. Forbes also challenged his inability to present witnesses at the CAB hearing and the adequacy of the written record of the hearing. He also alleged that the administrative appeal process did not provide a meaningful review of his claim. Finally, Forbes protested his placement in segregation. The district court rejected these claims and dismissed Forbes' petition on Trigg's motion for summary judgment.

II. Analysis

We review a district court's grant of summary judgment de novo, and we accept all facts and inferences in the light most favorable to the...

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