Nelson v. McBride

• Decision Date: 17 January 1996
• Docket Number: No. 3:95-CV-0723 AS.,3:95-CV-0723 AS.
• Citation: 912 F. Supp. 403
• Parties: Robert NELSON, Petitioner, v. Daniel McBRIDE, Superintendent of the Westville Correctional Center, Respondent.
• Court: U.S. District Court — Northern District of Indiana

912 F. Supp. 403

Robert NELSON, Petitioner, v. Daniel McBRIDE, Superintendent of the Westville Correctional Center, Respondent.

No. 3:95-CV-0723 AS.

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

January 17, 1996.

Robert D. Nelson, Westville, IN, pro se.

Martha J. Arvin, Office of Indiana Attorney General, Indianapolis, IN, for respondent.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This is a challenge under 28 U.S.C. § 2254 to a prison Conduct Adjustment Board ("CAB") proceeding by pro se petitioner Robert Nelson. Mr. Nelson is an inmate at the Westville Correctional Center in Westville, Indiana, and filed his petition for writ of habeas corpus on September 5, 1995.

I. BACKGROUND

On March 7, 1995, Mr. Nelson was requested and submitted to a random drug test providing a urine sample, pursuant to the Indiana Department of Corrections Random Urinalysis Program. The sample was submitted to the laboratory for testing. On March 27, 1995, the laboratory reported that the sample had yielded a positive result for cannabinoid or marijuana. This result was confirmed by the laboratory through the use of a gas chromatography/mass spectroscopy ("GC/MS") test.

As a result, a conduct report was written on March 27, charging Mr. Nelson with a violation of Code § 221, the possession, introduction, or use of an unauthorized substance. On March 28, 1995, Mr. Nelson was provided with a copy of the conduct report and received notice of a disciplinary hearing to be held on April 5, 1995. For the hearing, Mr. Nelson requested and was provided a lay advocate, Mr. Dolan Glenn, and did not request any witnesses. At this hearing held before the CAB, Mr. Nelson was found guilty for violating Code § 221. The CAB based its finding on the conduct report, Mr. Nelson's testimony and the laboratory test results. As a result of this conviction, Mr. Nelson was demoted from Credit Class I to Credit Class II and deprived of ninety (90) days of good time credit.

Mr. Nelson appealed the CAB's decision to Superintendent Daniel McBride on April 5, 1995. In this appeal, Mr. Nelson argued that the CAB could not impose a disciplinary sanction against him on the basis of only one positive test result. Mr. McBride denied Mr. Nelson's appeal on May 1, 1995. Mr. Nelson then filed a belated appeal of the CAB decision to the Indiana Department of Corrections Adult Operations Disciplinary Review Manager, L.A. Ditmer on July 24, 1995. In this second appeal, he claimed that: (1) the conduct report contained the wrong date and time of the drug test; (2) the conduct report was written up over five days after the drug test came back with a positive result in violation of the ADPP; and (3) the guilty finding by the CAB violated the Fourteenth Amendment to the United States Constitution because it did not meet with the mandates set forth in Woods v. Thieret, 903 F.2d 1080, 1083 (7th Cir.1990). On July 31, 1995, Mr. Nelson's second appeal was denied because his appeal was not submitted in a timely manner in accordance with the Adult Disciplinary Policy and Procedures ("ADPP"). This decision also informed Mr. Nelson that, "Therefore, you have now exhausted all appeal rights on this case."

Mr. Nelson filed his petition for writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254 on September 5, 1995. In his petition, Mr. Nelson alleges that the CAB's finding of guilt was improper in the following ways: (1) the CAB hearing was violative of the Due Process clause because Mr. Nelson claims that he was denied the opportunity to present physical evidence at the CAB hearing; (2) the sanction of a loss of earned credit time affects his "out-date" and violates his rights under the Due Process Clause of the Fourteenth Amendment; (3) the conduct report did not comply with the ADPP as it was written over five days after the drug test, also violating his rights under the Due Process Clause of the Fourteenth Amendment; and (4) his urine sample was improperly taken by a correctional officer and not by a member of the medical staff, thus constituting an illegal search and seizure under the Fourth and Fourteenth Amendments.

The respondent filed the return to order to show cause on October 27, 1995. The return demonstrated the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). On November 7, 1995, Mr. Nelson filed his response in which he restated the claims he raised in his petition.

II. DISCUSSION

There are some basics involved in this court's collateral review of CAB proceedings under § 2254. First, this court must examine this record for alleged constitutional errors. See Bell v. Duckworth, 861 F.2d 169 (7th Cir.1988), cert. denied, 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989). Secondly, this court does not sit as a trier de novo in these prison disciplinary proceedings and does not sit as court of general common law review. Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir.1988); Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir.1984). Third, this court does not sit merely to determine questions of state law. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Kraushaar v. Flanigan, 45 F.3d 1040 (7th Cir.1995).

A. MARKHAM v. CLARK

As a preliminary matter, the interrelation between Mr. Nelson's attempt to appeal his CAB conviction to the Indiana Department of Corrections Adult Operations Disciplinary Review Manager and the requirements of Markham v. Clark, 978 F.2d 993 (7th Cir.1992) must be discussed. In Markham, the Seventh Circuit, speaking through Judge Posner, indicated that it is axiomatic to federal habeas corpus relief that the petitioner exhaust any available state remedies, before a federal court will review the claim. The Markham court explained:

Federal prisoners are required (by judicial rule, not statute) to exhaust their administrative remedies before they can seek relief under the federal prisoner's habeas corpus surrogate, 28 U.S.C. § 2255.... The case for exhaustion of administrative remedies by state prisoners is stronger. Federal courts should not intrude into the relations between a state and its convicted criminals until the state has had a chance to correct its own mistakes. Indiana has established a corrective process for prisoners aggrieved by disciplinary sanctions; we hold that prisoners must use it before turning to the federal courts. Our conclusion is reinforced by 28 U.S.C. § 2254(c), which provides that `an applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of section 2254(b), if he had the right under the law of the State to raise, by any available procedure, the question presented.'

Id. at 995 (emphasis supplied) (citations omitted).

Ordinarily, Mr. Nelson's belated appeal to the Adult Disciplinary Review Manager could have served to bar all of his claims in this petition for failing to exhaust his available administrative remedies. But, because Mr. Nelson's belated appeal was received by L.A. Ditmer and Ditmer's decision included the statement, "Therefore, you have now exhausted all appeal rights on this case," the court finds that, in the interests of caution, Mr. Nelson's belated appeal did in fact exhaust his available remedies. Thus, the court will not dismiss the entire petition based upon Markham.

However, Mr. Nelson's first claim, that the CAB hearing was violative of the Due Process clause because Mr. Nelson claims that he was denied the opportunity to present physical evidence at the CAB hearing, is procedurally defaulted under Markham. Mr. Nelson did not raise this issue in either of his two administrative appeals in this case, including in his "Belated Appeal" memorandum that he filed with the Department of Corrections (See Exhibit # 3 of the respondent's "Return To Order To Show Cause) and cannot raise the issue in this court for the first time. Id. Because Mr. Nelson did not raise this issue during his state administrative appeals, this claim is dismissed under Markham.

B. RIGHTS UNDER DUE PROCESS CLAUSE

Mr. Nelson also claims that the CAB improperly denied him his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution by (1) basing its decision in part on a conduct report that was procedurally in error as he alleges it was written over five days after the drug test violating the ADPP and (2) sanctioning him with a deduction of earned credit time. In determining whether a petitioner has grounds for habeas relief under the Due Process Clause, the court must first look to see if a liberty or property interest exists. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989). The court must then look to determine if the procedures utilized to deprive the petitioner of life, liberty or property provided due process. Id.

As to his first claim under the Due Process Clause, Mr. Nelson claims that the CAB deprived him of due process by considering a conduct report that did not follow the requirements of the ADPP. He states that the conduct report was not written up within five (5) days of the alleged misconduct. The court has reviewed the Report of Conduct at issue in this case. The random drug test was ordered on March 7, 1995. The results of this drug test were returned as positive for cannaboid or marijuana on March 27, 1995 and the Report of Conduct was served upon Mr. Nelson on March 28, 1995. The court, therefore, finds that the infraction was not actually known to the prison officials until the results of the test were reported to them, and since the Report of Conduct was delivered within five (5) days of the return of the positive test results, the prison officials did not violate the procedures of the ADPP. Thus, there was no constitutional violation when the CAB relied upon it in part in their decision.

Mr. Nelson also challenges the CAB's sanction on his conviction, a loss...