Hoskins v. McBride, 3:01 CV 0272 AS.

• Citation: Hoskins v. McBride, 202 F.Supp.2d 839 (N.D. Ind. 2002)
• Decision Date: 22 May 2002
• Citation: 202 F.Supp.2d 839
• Docket Number: No. 3:01 CV 0272 AS.,3:01 CV 0272 AS.
• Parties: Richard J. HOSKINS, Petitioner, v. Daniel R. McBRIDE, Respondent.
• Court: U.S. District Court — Northern District of Indiana

202 F.Supp.2d 839

Richard J. HOSKINS, Petitioner, v. Daniel R. McBRIDE, Respondent.

No. 3:01 CV 0272 AS.

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

May 22, 2002.

COPYRIGHT MATERIAL OMITTED

Richard J. Hoskins, pro se.

Wayne Uhl, Indianapolis, IN, for Respondent.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

On April 4, 2001, pro se petitioner, Richard J. Hoskins, an inmate at the Indiana State Prison (ISP) in Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on October 10, 2001, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The petitioner filed a Traverse on May 10, 2002

The Attorney General of Indiana has placed before this Court a series of documents designated R.1 through R.36, which explicate in detail the underlying procedures in this conduct adjustment board (CAB) proceeding. There was a finding here of guilt, a sanction of a loss of 365 days of credit time, and a demotion to credit time earning class III. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) is implicated. There was both a hearing and a rehearing here.

The Petitioner claims that the State violated his constitutional rights in a number of ways: by not allowing him to view a security video and other physical evidence; by not having the witnesses answer the specific questions he wanted to ask; and by giving him a higher sentence on remand, which he claims indicates that the CAB was biased and retaliated against him. In addition, he claims that the Board lacked sufficient evidence to convict him of drug trafficking. Hoskins has exhausted his administrative appeals. The Court has considered the submissions of the parties and now rules as follows.

I. RELEVANT FACTS

On November 28, 1999, three visitors came to the PC/Segregation visiting area to see Hoskins. Prior to that time, Captain Webb had received a tip from an unnamed source that an offender from IDU planned to receive contraband from a visitor, and that it would be left in a trash can in the visitor's area and retrieved by an inmate porter. Id. That information was relayed to Captain Morton and Officer Thornberry. Both trash cans in the visitor's area were searched before the visitors came and determined to be clear of contraband, then searched again after the visitors left. Id. In a small trash can near the pop machine, Officer Thornberry found two chip bags containing 10 grams of marijuana and two separate bags of tobacco. Id. The contraband was replaced with filler, and the bags put back in the trash can. Id. Later in the same day, the porter, an offender named Brown, retrieved the bags from the trash can and was stopped. Id. Brown claimed that he knew about the tobacco, but not the drugs, and refused to identify to whom he was delivering the items. Id.

Captain Morton was watching the visitor's area on a monitor for the last fifteen minutes of the visit, and did not see anyone put anything into the small trash can. Resp. Ex. 3. He then went to the video room and played back the camera, which clearly showed the small trash can. Id. The only person he observed throwing anything into the small trash can was a boy who walked over and threw something in at approximately 11:57 A.M. At the time, two inmates from IDU had visitors: the Petitioner, Hoskins, and another inmate named Akemon. However, Hoskins was the only inmate who had a child visitor during this time, and it was determined that the boy on the video was Hoskin's nephew. Based on the video, prison officials determined that the drugs were intended for Hoskins, and he was sanctioned with a demotion to credit earning class III, and revocation of 365 days of earned good time credits, suspended. Hoskins appealed, and the case was remanded because Hoskins had asked for a statement from Brown, and instead the CAB used a hearsay statement from Captain Morton as to what Brown said. Resp.'s Ex. 11. A second CAB hearing was held before a different board. Hoskins requested information from three witnesses, Webb, Taylor, and the informant, specifically, the name of the "certain offender from IDU" who was supposed to receive the contraband. He also requested to view all the physical evidence, including the drugs, the potato chip bags, and the security video. Resp.'s Mem. in Supp. at 5. In addition, Hoskins wanted statements from the other prisoners who had visitors at the time to find out if they saw anything. Id. Webb and Taylor filed additional statements, but they did not answer Hoskins question, stating only that they were not present and had no knowledge of the incident. Resp.'s Ex.'s 14 and 15. Brown wrote a statement saying that he was only found in possession of empty chip containers, that he did not traffic or intend to traffic anything to Hoskins, and that he did not think Hoskins was even aware of the alleged incident. Resp.'s Ex. 16. The chairman of the second CAB, John Barnes, filed a declaration stating that he reviewed the physical evidence and watched the security camera videotape before the hearing, in the evidence room. Resp.'s Ex. 36.

Based on the physical evidence, the videotape, the conduct report, and witness statements, the CAB found Hoskins guilty of "attempted trafficking" and sanctioned him with demotion to credit earning class III, and revocation of 365 days of earned good time credits, this time not suspended. Resp.'s Ex. 17. The CAB gave as reasons for imposition of the sanction the seriousness of the offense, the degree to which the offense disrupted or endangered the security of the facility, and the likelihood that the sanction will have a corrective effect on the offender's future behavior. Id.

Hoskins appealed this decision, and initially the final reviewing authority, C.A. Penfold, remanded the case for a rehearing so offender Hoskins could view the videotape. Trav. Ex. 8. However, five days later, after consulting with the Department's Legal Services, Penfold rescinded the order and denied the appeal based on his conclusion that having the Conduct Adjustment Board review the videotape was adequate, and that denying Hoskins' request to view the tape for "security reasons" was legitimate. Resp.'s Ex. 34. Hoskins then filed this action for habeas corpus review in federal court.

II. STANDARD OF REVIEW

As the loss of good time credit is a "liberty" interest protected by the Fourteenth Amendment to the Constitution, it triggers the applicability of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and requires certain procedural steps as stated in that Supreme Court decision. Due process requires that Hoskins be given: (1) advance written notice of the charges against him at least 24 hours before the hearing; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. Henderson v. U.S. Parole Comm'n, 13 F.3d 1073 (7th Cir.1994) (citing Wolff v. McDonnell, 418 U.S. 539, 563-567, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).

For the hearing to be meaningful, the prisoner should be afforded an opportunity to be heard before an impartial decision maker, id., and the decision must be supported by "some evidence" in the record. Superintendent, Mass. Corr. Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). The so-called "some evidence" standard applies in this circuit, as reflected in Webb v. Anderson, 224 F.3d 649 (7th Cir.2000), cert. denied, 531 U.S. 999, 121 S.Ct. 497, 148 L.Ed.2d 468, 2000 WL 1512783 (U.S.), McPherson v. McBride, 188 F.3d 784 (7th Cir.1999), and Meeks v. McBride, 81 F.3d 717 (7th Cir.1996).

This is a lenient standard, requiring no more than "a modicum of evidence." Webb, 224 F.3d at 652. Even evidence that can be characterized as meager is sufficient to support the revocation of good-time credits so long as "the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary." Id. citing Hill, 472 U.S. at 457, 105 S.Ct. 2768. It is not this Court's province to assess the comparative weight of the evidence underlying the board's decision, "the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. citing Hill, 472 U.S. at 455-56, 105 S.Ct. 2768.

III. DISCUSSION

Hoskins raises five constitutional challenges to his CAB proceedings and sanctions. He claims that he was denied witness testimony favorable to his defense; that he was denied the introduction of tangible and documentary evidence supportive of his defense and innocence; that the evidence was insufficient to meet the "some evidence" standard; that due process was violated because he received a higher sanction for the same offense after his case was remanded; and that the second CAB was not impartial. The Court will address each of these concerns in the order that Hoskins raised them.

A. The Witnesses

Prisoner's have the right to call witnesses to testify on their behalf at CAB hearings when consistent with institutional safety and correctional goals. Henderson, 13 F.3d 1073 (citations omitted). However, that right is not an unlimited right. See, Sweeney v. Parke, 113 F.3d 716, 719 (7th Cir.1997). Prison officials have discretion to determine whether to have the witnesses present or to allow them to submit a written statement. There is no right to confront witnesses at a CAB hearing. Wolff, 418 U.S. at 567-8, 94 S.Ct. 2963.

In this case, prison officials allowed Hoskins' witnesses to provide written statements. Hoskins wanted specific information from three witnesses, the name of the "certain offender" named in the tip. One of...