Rowold v. McBride

• Decision Date: 16 July 1997
• Docket Number: No. 3:96-CV-0857 AS.,3:96-CV-0857 AS.
• Citation: 973 F.Supp. 829
• Parties: Richard Lee ROWOLD, Petitioner, v. Dan R. McBRIDE, Respondent.
• Court: U.S. District Court — Northern District of Indiana

973 F.Supp. 829

Richard Lee ROWOLD, Petitioner, v. Dan R. McBRIDE, Respondent.

No. 3:96-CV-0857 AS.

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

July 16, 1997.

Richard Lee Rowold, pro se, Westville, IN.

Mary Ann Gregorio, Office of the Atty. Gen., Indianapolis, IN, for Dan R. McBride and Ind. Atty. Gen.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

This is a challenge under the First Amendment and the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (RFRA), to a prison Conduct Adjustment Board (CAB) proceeding by pro se petitioner Richard Lee Rowold (Rowold). Rowold was housed at the Plainfield Correctional Facility, Indiana Youth Center (IYC) during a significant portion of the events described here and is currently housed at the Westville Correctional Facility. Rowold filed his petition for habeas corpus relief under 28 U.S.C. § 2254 on November 20, 1996, challenging a conviction in a prison disciplinary proceeding, styled by the Indiana Department of Correction as "IYC96-06-0005," that occurred while he was incarcerated at the IYC.

I. FACTS AND PROCEDURAL HISTORY

On May 31, 1996, Correction Captain R. Hightshue filed a report of conduct against Rowold charging him with violating prison disciplinary code 347C, refusing to obey an order from any staff member. Specifically, the report states as follows,

On 05/31/96 at approximately 2335 hours, Offender Rowold, Richard # 922713 was brought to my office in the custody building from the North Dorm. He had refused to do extra duty. Offender Rowold stated to this Captain, Capt. R. Hightshue, that he had received 30 hours extra duty from C.A.B. and at this time he was refusing to do his extra duty. I, Capt. R. Hightshue told him that I would not exempt him from extra duty given to him by C.A.B. at this time. Offender Rowold refused three more times to do his extra duty after being ordered to do so by me. Was placed on DU on this same date by me? [sic]

Ofc. Hardy — He was there. (written at the bottom of the page)

See Respondent's Return Order to Show Cause, Ex. 1, "Report of Conduct".

Rowold received a copy of this report on June 3, 1996. Rowold also received a Notice of Disciplinary Hearing Form. In response to this notice Rowold pled "not guilty" and requested the assistance of a lay advocate. Rowold also indicated that he intended to present witness statements by prison officials at the hearing.

During the hearing, which was conducted on June 11, 1996, Rowold testified on his own behalf and included in his comment that he was both a Messianic Jew and a Seventh Day Adventist. Rowold claimed "I stated I would do my extra duty but not on my religious day of rest. Due to my religious conscience, I cannot work the Sabbath. I did not tell my Captain that I would not do the [extra] duty." See Respondent's Return Order to Show Cause, Ex. 1, "Report of Disciplinary Hearing". Rowold also submitted a statement in which he alleged the Report of Conduct was inaccurate. In his statement, he claimed that "[t]he only words that I had a chance to say to Captain Hightshue were, `Sir, with all due respect.' Before I could explain my cause, he ordered me transferred to [the] detention unit." See Respondent's Order to Show Cause, Ex. 1, "Offender's Comments and Statement."

After reviewing the evidence presented as well as considering witness statements, the CAB found Rowold guilty. The CAB's finding of facts and statement of evidence relied on read,

H/O has considered all evidence to include the offenders [sic] statement, the witness statement, []. The conduct report written by the credible Capt. R. Hightshue. The H/O finds Offender Rowold # 922713 guilty of 347C, refusing to obey an order.

See Respondent's Return Order to Show Cause, Ex. 1, "Report of Disciplinary Hearing". The CAB imposed sanctions of twenty hours extra duty, thirty days disciplinary segregation (twenty-six days suspended), demotion in credit class from II to III, and deprivation of sixty days earned credit time.

On June 20, 1996, Rowold filed a Disciplinary Hearing Appeal with Superintendent Christopher Meloy. In his appeal, Rowold stated, "the allegations as written in this Report of Conduct are completely wrong. The witness' statements are accurate but the only words I had a chance to say directly to Captain Hightshue were, `Sir with all due respect. I never refused to do my assigned duty....'" See Respondent's Return Order to Show Cause, Ex. 1, "Disciplinary Hearing Appeal." Meloy denied Rowold's appeal on July 11, 1996.

Rowold made a final administrative appeal to E. Janeen Stewart, Administrative Assistant for Adult Operations at the Indiana Department of Corrections. On September 30, 1996, Stewart denied Rowold's appeal because there was no finding of procedural or due process error. See Respondent's Return Order to Show Cause, Ex. 1, "Letter from Stewart to Rowold dated October 29, 1996."

As a result of this disciplinary conviction, Rowold was later convicted of violating disciplinary code 105A, habitual conduct rule offender. Rowold was found guilty of four Class A, B, or C rule violations involving four unrelated incidents within the last twelve months. Rowold's sanction for being a habitual offender was the deprivation of sixty days earned credit time.

After reevaluating Rowold's disciplinary appeal, Stewart vacated the sanctions for refusing to obey a staff member's orders. Rowold's demotion in credit class and deprivation of earned credit time were vacated. However, Stewart affirmed the disciplinary conviction. This all involves memories of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)¹.

II. ARGUMENTS

Rowold turned his attentions to federal court by filing his petition for writ of habeas corpus in this court on November 20, 1996. In his petition, Rowold raises six separate due process claims. First, he claims the Respondent's statement of facts are inaccurate in the Report of Conduct. See Respondent's Return Order to Show Cause, Ex. 1, "Report of Conduct." Second, Rowold alleges his 105A disciplinary sanctions for failure to obey a prison official and reduction of good credit time for violating the habitual offender rule were the result of double jeopardy of Amendment V of the Constitution of the United States because the issues involved in the habitual offender hearing were before this court on due process claims. Third, Rowold claims Respondent violated his First Amendment rights by impeding his faith and right to worship. Fourth, Rowold states 28 U.S.C. § 2254 does not apply to this case. Fifth, the Respondent violated the Religious Freedom Restoration Act by imposing sanctions which were a substantial burden on his exercise of religion. Sixth, the extra work duty was not reasonably related to a legitimate penological interest. Thus, Rowold requests that this court grant his petition for federal habeas relief.

The Respondent filed his Return Order to Show Cause on January 28, 1997, demonstrating the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). In his response, McBride argues Rowold's due process rights were neither violated by extra work duty nor the by the CAB's hearing on June 6, 1996. On May 27, 1997, after an extension of time to file Traverse was granted by this court, Rowold filed his Traverse in this matter, in which he countered the arguments by the Respondent. Because Rowold filed his Traverse by the extended deadline, Respondent's reference to Lewis v. Faulkner is moot.

III. DUE PROCESS CLAIMS

Rowold raises six separate due process claims before this court. It is Respondent McBride's contention that these claims fail on their merits. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), addressed due process rights of prisoners. In Sandin, Chief Justice Rehnquist, writing on behalf of the Supreme Court, stated,

prisoners do not shed all constitutional rights at the prison gate, but "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. 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." (citations omitted)

* * * * * *

States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Id. at 483-85, 115 S.Ct. at 2300. This court has recently followed the Supreme Court's opinion in Sandin on numerous occasions: See Bonner v. Parke, 918 F.Supp. 1264 (N.D.Ind.1996); Stone-Bey v. Barnes, 913 F.Supp. 1226 (N.D.Ind.1996); McKinney v. Hanks, 911 F.Supp. 359 (N.D.Ind.1995).

Here, Stewart, the Administrative Assistant, vacated the sanction for failure to obey an order depriving him of sixty days earned credit time. Therefore, Rowold has no claim; no atypical or significant hardship was placed on Rowold because he did not lose his earned credits as a result of the disciplinary hearing. Rowold argues, however, this disciplinary proceeding led to his subsequent habitual violator hearing, and as a result, he lost sixty days earned good time. This has some of the flavor of an argument under Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Because Stewart vacated portions of Rowold's sanction, yet upheld the disciplinary conviction, Rowold's deprivation of sixty days earned time for being a habitual violator is sound. The CAB found Rowold guilty of committing four violations within twelve months, and because Stewart did not overturn Rowold's last...