Stone-Bey v. Swihart, 2:93cv198AS.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Citation898 F. Supp. 1287
Docket NumberNo. 2:93cv198AS.,2:93cv198AS.
PartiesLorenzo L. STONE-BEY, Plaintiff, v. Karl SWIHART, Investigator, John Barnes, C.A.B. Chairman, Defendants.
Decision Date22 September 1995



Lorenzo L. Stone-Bey, Michigan City, IN, pro se.

Charles E. Doyle, Beverly Shores, IN, for Lorenzo L. Stone-Bey.

Diane Marger Moore, Office of Indiana Attorney General, Indianapolis, IN, for H. Christian DeBruyn, Robert Farley.

Diane Marger Moore, Office of Indiana Attorney General, David A. Arthur, Indiana Attorney General, Indianapolis, IN, for Karl Swihart.

David A. Arthur, Indiana Attorney General, Indianapolis, IN, for John Barnes.


ALLEN SHARP, Chief Judge.


On July 27, 1993 inmate Lorenzo L. Stone-Bey, imprisoned for life for murder, (hereinafter "Stone-Bey") filed a complaint under 42 U.S.C. § 1983 alleging that various members of the Indiana State Prison violated his rights in regards to a Conduct Adjustment Board (hereinafter "CAB") hearing. On November 11, 1993 this court dismissed portions of the complaint leaving only Karl Swihart (hereinafter "Swihart") and John Barnes (hereinafter "Barnes") as defendants in their individual capacities in this case. Dispositive motions pending in this court are Stone-Bey's March 8, 1995 Motion for Summary Judgment and Defendants' May 1, 1995, response thereto. Defendants also have pending an October 12, 1993 Motion for Summary Judgment and a May 1, 1995 Supplemental Motion for Summary Judgment. Swihart and Barnes are represented by members of the Indiana Attorney General's Office and Stone-Bey is represented by attorney Charles E. Doyle1.


Someone informed prison officials that on April 20, 1993 Stone-Bey had allegedly threatened to have inmate Bowens "eliminated" if Bowens failed to pay Stone-Bey an outstanding debt. Pending an investigation into the matter, Stone-Bey was placed in segregation. Stone-Bey denied knowing Bowens or having any knowledge of such a threat. Stone-Bey offered to take a lie detector test, but his offer was rejected. On May 5, 1993 investigator Swihart prepared a Report of Investigation of Incident which stated:

Investigation has determined that several weeks ago offender Bowens purchased $75.00 worth of marijuana from offender Stone. Offender Bowens failed to pay offender Stone as they had previously arranged. On April 20, 1993 at approximately 7:30 p.m. while at recreation offender Stone approached Bowens and demanded his money. At that time Stone told Bowens in the presence of witnesses, that if he did not pay him that Stone would have Bowens eliminated.

Defendants' Motion for Summary Judgment, Appendix 1, p. 1. Swihart also prepared a Conduct Report which stated: "Investigation has determined that on the above date and time offender Stone did threaten offender Bowens # 875526 at recreation in the presence of witnesses. This threat was made because Bowens owed Stone a $75.00 drug debt." Defendants' Motion for Summary Judgment, Appendix 2, p. 1.

On May 11, 1993 Stone-Bey received a copy of the Conduct Report and a Notice of Disciplinary Hearing charging Stone-Bey with threatening. The disciplinary hearing No. ISP93-05-0038, with Officer Barnes presiding began on May 12, 1993. Appearing with Stone-Bey was lay advocate Burnett. The evidence before the CAB included Stone-Bey's testimony, the Conduct and Investigative Reports, and written statements by inmates Keeby, Ridley, and McKinney. It was discovered at the hearing that Swihart had not signed the Conduct or Investigative Reports. Barnes was informed at the hearing that Bowens recanted his story and was now denying that Stone-Bey had threatened him. Stone-Bey by his lay advocate requested a dismissal of the case citing the unsigned reports and Bowens' recantation. Barnes denied the request. Instead he continued the hearing until May 19, 1993 so that more investigating could be done. In the interlude between the two hearings, Swihart inspected the Conduct Report and the Investigative Report and verified in a May 17, 1993 letter to Barnes that the reports were prepared by him. Defendants' Motion for Summary Judgment, Appendix 2, p. 1. There is no dispute that the letter was before Barnes when the hearing resumed.

Upon resumption of the hearing on May 19, Stone-Bey's renewed motion to dismiss was denied. Barnes found Stone-Bey guilty of threatening and sentenced him to one year of disciplinary segregation. Barnes concluded: "The conduct report, offender/lay advocate statement, investigative file, ISP93-061, witness statement have been reviewed for evidence. The preponderance of evidence indicates that the offender did threaten sic Bowen per information from investigative report ISP93-061." Id. Later, in an affidavit taken on April 6th, 1995, Barnes indicated that his finding of guilt "was based in part on the facts that Bowens passes a Voice Stress Analysis and that there is in the investigative file a statement that is signed by another offender who witnessed the threat being made." Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment, Affidavit of John Barnes. Barnes also stated in his affidavit that he did not believe Bowens' recantation because of the voice stress analysis results and the signed statement from another offender who witnessed the threat being made. Id. No voice stress analysis results or signed witness statements have been submitted to this court.

On May 26, 1993 Stone-Bey appealed Barnes' decision to Robert Farley, Superintendent of the prison. Superintendent Farley denied the appeal on July 1, 1993. Stone-Bey appealed to the Disciplinary Review Manager who denied the appeal on July 9, 1993. Stone-Bey then turned to the federal courts.


On July 27, 1993 Stone-Bey filed the present petition under 42 U.S.C. § 1983 seeking damages against the defendants for various deprivations of his Fourteenth Amendment Due Process rights. On November 23, 1993, after carefully reviewing Defendant's October 12, 1993 Motion for Summary Judgment, this court ordered that Defendants DeBruyn, Farley, and Monroe be dismissed. This court also ordered any and all damage claims against Swihart and Barnes their official capacities dismissed. Finally, this court ordered Stone-Bey to indicate whether he was challenging disciplinary segregation or administrative segregation.

Stone-Bey filed a brief on December 16, 1993 in response to this court's November 23, 1993 order, but since that time Stone-Bey has become represented by counsel. Therefore, this court finds the December 16, 1993 Motion for Summary Judgment superseded by Mr. Doyle's March 8, 1995 Motion for Summary Judgment. This court also examines the Defendant's October 12, 1993 and May 1, 1995 motions. Synthesizing the allegations in the above mentioned motion, this court finds that Stone-Bey raises the following violations of due process. Specifically, Stone-Bey alleges that his rights were violated:

by Swihart because he:
a.) failed to sign the investigative reports;
b.) failed to obtain approval of the report by the shift supervisor; and,
c.) failed to properly document the written statements of Plaintiff's witnesses,


by Barnes because he:
a.) failed to dismiss the claim on the basis of inadequate notice of the threat made;
b.) failed to provide Stone-Bey with copies of statements given by the witnesses who spoke on his behalf;
c.) failed to dismiss the claim on the basis of Swihart's omissions;
d.) failed to maintain a written record of the hearing; and
e.) failed to dismiss the claim on the basis of Bowens' recantation.

To maintain order and promote safety, prisons promulgate various rules that regulate inmate conduct. Stone-Bey was accused and found guilty of violating the Indiana State Prison's rule prohibiting inmates from threatening other inmates. Adult Disciplinary Policy Procedure Manual, p. 38, # 213. As punishment, Stone-Bey was removed from the general prison population and placed in segregation. Stone-Bey's appeal of the CAB decision through the appropriate administrative appeals brought him no relief and Indiana refuses to hear his petition claiming that "there is presently no constitutionally protected right to judicial review of the decisions of factfinding and appellate tribunals presently conducting disciplinary proceedings within the prison system." Riner v. Raines, (1980) 274 Ind. 113, 409 N.E.2d 575.2

However, federal courts do not sit as surrogates to state courts. In reviewing a prison disciplinary hearing, a federal court looks only for violations of the United States Constitution. Federal courts do not sit to pass judgment upon violations of state law or state procedure. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); Pennhurst v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). To receive federal review, a state prisoner challenging his disciplinary hearing must allege that the CAB deprived him of a right guaranteed or protected by the United States Constitution. Here, Stone-Bey alleges that Barnes and Swihart deprived him of his due process rights under the Fourteenth Amendment. "No State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. Stone-Bey argues that he is entitled to damages under 42 U.S.C. § 1983 because the CAB hearing failed to provide him with sufficient process before he was deprived of his liberty interest in remaining in the general prison population.3 Stone-Bey presupposes that he has a liberty interest in remaining out of segregation.


Although a prisoner may not be deprived of a liberty interest without due process, sanctions that do not deprive an inmate of a liberty interest are not subject to federal review. Castaneda v. Henman, 914 F.2d 981, 983 (7th...

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