Billops v. Wright

• Decision Date: 07 October 1992
• Docket Number: Civ. No. S 92-321 (S).
• Citation: 803 F. Supp. 1439
• Parties: Willie James BILLOPS, Petitioner, v. Charles WRIGHT, and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

803 F. Supp. 1439

Willie James BILLOPS, Petitioner, v. Charles WRIGHT, and Indiana Attorney General, Respondents.

Civ. No. S 92-321 (S).

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

October 7, 1992.

Willie James Billops, pro se.

Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On May 22, 1992, pro se petitioner, Willie James Billops, an inmate at the Westville Correctional Center, filed a petition seeking relief under 28 U.S.C. § 2254. The return filed by the respondents on August 17, 1992, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The necessary record with reference to the prison disciplinary proceedings has also been filed. On September 14, 1992, the petitioner filed a 15-page filing entitled "Return of Order Showing Cause and Memorandum in Support of Return."

This petitioner was convicted in the Elkhart Superior Court of burglary and was sentenced to an eight-year term on May 1, 1989, and is in custody at the Westville Correctional Center, Maximum Control Complex at times relevant to this case. This court is obligated to examine and consider the proceedings before the Conduct Adjustment Board in light of the decision in Miller v. Duckworth, 963 F.2d 1002 (7th Cir.1992) and the very recent decision in Hamilton v. O'Leary, 976 F.2d 341 (7th Cir.1992).

The court must examine the records under the mandates of Supt., Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The principal thrust of the petitioner's claim is that he was denied his right to call witnesses in three different CAB proceedings. Those proceedings resulted in findings of guilt for disorderly conduct, unauthorized possession of state property, and violation of state or federal law. This court has examined the records in regard to these proceedings that have been provided to the court and these records appear to pass constitutional muster under Supt., supra, and Wolff, supra.

In the case WCC-91-3-2560 involving disorderly conduct, the documents used in the CAB procedure indicate that on March 8, 1991 petitioner was charged with disorderly conduct after he yelled certain expletives at an officer in the kitchen of the General Services Complex ("GSC"). The reporting officer listed fellow Officers Murray and Todd as witnesses to the event in the text of the Conduct Report. The petitioner received a copy of the aforementioned report as well as a copy of the Notice of Disciplinary Hearing on March 11, 1991. The petitioner requested only Sgt. Fort as a witness and a lay advocate at the hearing to be held on March 14, 1991.

Prior to the March 14th hearing, notices were sent to Sgt. Fort and inmate Genie Morris. During the hearing, the petitioner explained that he and the reporting officer had "had words, but I didn't cuss him." The report from the hearing also indicates that the CAB considered the conduct report, witness statements, and the petitioner's statement as factors in the finding of guilt. The CAB noted that Sgt. Ford "was not in the immediate area when the incident occurred," and a notation on the form indicates that Officers Murray and Todd were "not requested at screening." As a result of this incident and the hearing, the petitioner lost 90 days' earned credit time.

Subsequently, the petitioner pursued an administrative appeal premised on the contention that he had been denied proper preparation of his defense. The petitioner contends that he did not request Officers Todd and Murray at the March 11, 1991 screening because he had assumed that the two officers would corroborate the reporting officer. After the two officers advised him differently, the petitioner indicates that he advised the screening officer of his desire to add the two officers to the witness list. According to procedure, notices were proffered to the two officers, but there the process went awry. Apparently, Officer Todd could not respond to his notice because he had been injured recently and was not available on that particular day. Officer Murray did not respond because he never received the notice as it was misdirected to an Officer Murphy, who had no knowledge of the incident and returned the notice and indicated that he would not appear. The petitioner asserts that the two officers would have supported his contention that he was innocent, and therefore, a continuance should have been granted. Subsequently, the petitioner appealed and the administrative appeal was denied by the superintendent. In so doing, the superintendent indicated that there was not any evidence in the record to support the petitioner's aforementioned contentions.

In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court, as outlined by Justice White, explained the requirements applicable to procedures of this nature:

We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate's interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessity (sic) discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine a party, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases. Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case. The operation of a correctional institution is at best an extraordinarily difficult undertaking. Many prison officials, on the spot and with the responsibility for the safety of inmates and staff, are reluctant to extend the unqualified right to call witnesses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitutional impediments. There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents.

Wolff, 418 U.S. at 566-567, 94 S.Ct. at 2979-80. The question is whether the above quoted provisions of Wolff and its progeny in this circuit have been violated in this case.

More recently, in Miller v. Duckworth, 963 F.2d 1002 (7th Cir.1992), the Seventh Circuit, speaking through Judge Kanne, explained further the parameters of Wolff. The court indicated that "while the prisoner certainly can not wait until the day of the hearing to make such requests, due process would certainly dictate that he be given a reasonable time to plan his defense." Id. at 1004-05 n. 2. The respondent maintains that the petitioner was given a reasonable time to plan his defense even if all factual disputes are resolved in favor of the petitioner. This court finds that assertion very questionable considering the fact that the notices were sent to the two officers in accordance with CAB procedures. The issue is not whether the petitioner used a reasonable amount of time to plan his defense, clearly he did or the CAB would not have allowed him to issue the notices at all. Here, the issue more accurately stems from ascertaining the reasons behind the CAB's refusal to call the witnesses or issue a continuance. To this argument, respondent points out that the CAB record does not recite any reason why the witnesses were not allowed and that this is acceptable in light of Ponte v. Real, 471 U.S. 491, 496-97, 105 S.Ct. 2192, 2195-96, 85 L.Ed.2d 553 (1985).

In Ponte, the Court explained that "chief among the due process minima outlined in Wolff was the right of an inmate to call and present witnesses ... in his defense before a disciplinary board." Ponte, 471 U.S. at 495, 105 S.Ct. at 2195. Insofar as a prisoner has this right to present witnesses, it "is necessarily circumscribed by the penological need to provide swift discipline." Id. at 495, 105 S.Ct. at 2195 (quoting Baxter v. Palmigiano, 425 U.S. 308, 321, 96 S.Ct. 1551, 1559, 47 L.Ed.2d 810 (1976); Wolff, 418 U.S. at 556, 94 S.Ct. at 2974). It is also proscribed by the necessity of avoiding situations that are "unduly hazardous to institutional safety or correctional goals." Id. The parameters "placed upon an inmate's right to call witnesses do not give prison officials the unfettered discretion to deny that right for no reason at all." Jackson v. O'Leary, No. 89 C 7383, 1992 WL 38403, 1992 U.S. Dist. LEXIS 2108 (N.D.Ill. Feb. 25, 1992). In Ponte, the Court explained that the CAB may be required to explain the denial at either the disciplinary hearing or in a subsequent court proceeding. The Court indicated:

To hold that the Due Process Clause confers a circumscribed right on the inmate to call witnesses at a disciplinary hearing, and then conclude that no explanation need ever be vouched for the

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