McKinney v. Hanks

• Citation: 911 F. Supp. 359
• Decision Date: 20 December 1995
• Docket Number: 3:95-cv-0642 AS.,No. 3:95-cv-0610 AS,3:95-cv-0610 AS
• Parties: Ronnie McKINNEY, Petitioner, v. Craig HANKS, and Indiana Attorney General, Respondents. James CHAPMAN, Petitioner, v. Daniel McBRIDE, and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

911 F. Supp. 359

Ronnie McKINNEY, Petitioner, v. Craig HANKS, and Indiana Attorney General, Respondents.

James CHAPMAN, Petitioner, v. Daniel McBRIDE, and Indiana Attorney General, Respondents.

Nos. 3:95-cv-0610 AS, 3:95-cv-0642 AS.

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

December 20, 1995.

Ronnie McKinney, Carlisle, IN, pro se.

Robert D. Bugher, Indiana Department of Correction, Indianapolis, IN, for Indiana Attorney General, respondent Craig Hanks, Daniel McBride.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I. PRELUDE

Many United States district judges and United States magistrate judges who must work daily in the trenches of the federal trial judiciary, dealing with the current massive flow of pro se prisoner cases brought under 28 U.S.C. § 2254 challenging the decisions of prison disciplinary boards, are most respectfully concerned about the newly created boundaries found in Sandin v. Conner, ___ U.S. ____, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).¹ One is reminded by the suggestion earlier in this century by G.K. Chesterton that a fence should not be torn down until it is known why it was built in the first place. Those who must deal daily with this species of § 2254 prison disciplinary cases must wonder with some precision what old fences have been torn down and what new ones have been built. In this context of prisoner litigation, the earlier fence-building, as far as the concept of protectable liberty interest under the Fourteenth Amendment, largely is found in such cases as Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and maybe Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). The hard question remains as to which, if any, of these judicial fences created in the decades of the 1970's and 1980's have now been torn down or moved in the 1990's. Although the task is burdensome, a side-by-side comparison of Hewitt v. Helms and Sandin v. Conner is helpful in order to put the exact changes made by the Supreme Court in Sandin into context. Clearly, the classical liberty interest created under Hewitt in this species of cases has now been given a decent judicial burial, with the grave-side services presided over by the same judicial officer who was present at its creation. That part of the understanding of the realpolitik teaching of Sandin is easy. What remains tryingly difficult is the determination of what new fences have been built to replace the ones created by Hewitt, and where these fences are now located. Interesting and difficult language has been chosen by the Supreme Court as the standard by which a deprivation of liberty in the prison disciplinary context should be judged. A prison will now run afoul of the Fourteenth Amendment (or in some instances the Fifth Amendment) when it "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, ___ U.S. at ___, 115 S.Ct. at 2300. The decision does not end there but in reality directs us to turn back and look at the expected parameters of the sentence imposed. Specifically, whether "discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law." Id. at ___, 115 S.Ct. at 2301.

As is so often the case, there is an interrelationship, or at least an attempted interrelationship, between cases brought under 28 U.S.C. § 2254 and those brought under 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and Allen v. Duckworth, 6 F.3d 458 (7th Cir.1993), cert. den., ___ U.S. ___, 114 S.Ct. 1106, 127 L.Ed.2d 417 (1994). Such is also the case in Sandin. The factual setting of Sandin, which involved an inmate receiving disciplinary segregation for a comparable short period (30 days), is literally legion in cases filed pursuant to § 2254 in the United States district courts. However, there are also literally thousands of such cases where disciplinary segregation has been imposed not for a few days or a few weeks, but in terms of years. Thus, in the spectrum of prison disciplinary cases and the determination of the presence of protectable liberty interests for inmates, the task of determining where these new fences are now located will fall to the United States district judges and United States magistrate judges, leaving to higher authority the decision as to where and when to build and tear down these new fences down in the future. Whatever else may be said with regard to the Sandin majority, it will not take a Brandeis brief to establish that the real workload of the federal trial judiciary will be greatly increased as the result of the Sandin decision, although clearly such was not the intent or purpose of its majority. With all of this said as a preliminary, this court has chosen a couple of recently filed cases invoking 28 U.S.C. § 2254 in the prisoner disciplinary context to see how these new boundaries work out.

II. McKINNEY v. HANKS

The pro se petitioner Ronnie McKinney filed a petition on July 21, 1995, invoking 28 U.S.C. § 2254. The return filed by the Attorney General of Indiana on October 6, 1995, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The petitioner was at all relevant times an inmate at the Indiana State Prison in Michigan City, Indiana, in this district, and was the subject of proceedings before a Conduct Adjustment Board (CAB) there. More accurately, he was the subject of two such proceedings. One was Case Number ISP XX-XX-XXX, in which he was charged by Correctional Officer Jerry Lambert with a violation of Adult Disciplinary Policy Code (ADPC) 215, namely, destroying, altering or damaging state property or property belonging to another. The report of conduct more specifically stated the following:

At approximately 11:15 a.m. on Nov. 1, 1992, I, Ofc. J. Lambert was on the bottom range, east side of I.D.U. detention unit and observed inmate McKinney kicking his toilet and jerking on his bed. I, Ofc. J. Lambert, told inmate McKinney to stop damaging the cell, but inmate McKinney refused and stated that he was pissed off and hyper and continued lifting the bed and slamming it to the floor, and kicking his toilet stool. The cell was flooded due to inmate McKinney kicking the toilet loose from the wall. At approx. 11:30 inmate McKinney was removed from his cell and taken to N.S.B. lock-up unit.

McKinney was given a notice of disciplinary hearing on November 30, 1992, and the CAB proceeding was held on December 2, 1992. He entered a plea of not guilty, requested the assistance of a certain lay advocate and indicated that written statements would be presented at the hearing. The report of the disciplinary hearing, dated December 7, 1992, shows that McKinney denied the allegations in the report of conduct. He asserted that the particular toilet was already broken. The CAB presented its findings of fact and statement of evidence relied upon in making these findings, and found by a preponderance of the evidence that inmate McKinney did damage the toilet in his cell when he kicked it loose from its fittings. He was sanctioned for restitution of damaged property and given six (6) days disciplinary segregation, which time had already been served. He did not appeal the CAB findings and sanctions administratively within the Department of Corrections.

The second case involving McKinney is ISP XX-XX-XXX. This case arose out of a report of conduct dated November 26, 1992, issued by Correctional Officer Sherman O. Wilson, which cited McKinney with another violation of ADPC 215, namely, destroying, altering or damaging state property or property belonging to another. The report of conduct charged inmate McKinney with tearing his toilet off the wall, picking it up and throwing it back on the ground. McKinney received a copy of the report of conduct on December 3, 1992. A notice of disciplinary hearing reveals that on December 3, 1992, inmate McKinney was given notice that a CAB proceeding was to be held December 7, 1992. He entered a plea of not guilty, requested the assistance of a lay advocate to present his case and requested that certain officers and offenders appear as witnesses at the hearing. The report of the disciplinary hearing dated December 7, 1992, shows that McKinney admitted that he damaged the toilet in his cell because he was angry at another offender. The CAB presented its findings of fact and statement of evidence relied upon. The CAB found that even though inmate McKinney entered a plea of guilty to the offense, he did in fact damage state property namely the pipes and plumbing hardware in his cell when he tore the toilet off the wall. The sanctions imposed by the CAB included restitution for property damage and eight (8) days in disciplinary segregation, which was in effect time served.

In this case, inmate McKinney appealed the CAB findings and sanctions to Superintendent Farley at the ISP on December 11, 1992. In this appeal, McKinney argued that he was denied effective assistance by the lay advocate and that he was subjected to double jeopardy since the CAB assessed restitution and disciplinary segregation for his violation of the ADPP. The superintendent, upon review of the appeal and record of CAB proceeding, upheld the conviction, finding that there was sufficient evidence to support the CAB's decision. McKinney then appealed his CAB conviction to the Department of Corrections Disciplinary Review Manager of Adult Operations, who on February 23, 1993, denied his appeal, finding that there was no evidence of procedural due process error in this case.

In this habeas petition, McKinney claims a denial of his due process rights in these...