Wade v. Farley

• Decision Date: 03 August 1994
• Docket Number: No. 3:93cv0619AS.,3:93cv0619AS.
• Citation: 869 F. Supp. 1365
• Parties: Travis WADE, Petitioner, v. Robert FARLEY, and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

869 F. Supp. 1365

Travis WADE, Petitioner, v. Robert FARLEY, and Indiana Attorney General, Respondents.

No. 3:93cv0619AS.

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

August 3, 1994.

Travis Wade, pro se.

Thomas D. Quigley, Office of Indiana Atty. Gen., Indianapolis, IN, for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On September 2, 1993, pro se petitioner, Travis Wade, an inmate at the Indiana State Prison, Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The return filed by the respondents on February 25, 1994, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The filing of the response renders MOOT the filings of the petitioner on February 16, 1994, namely, his request for a default. The petitioner filed a very lawyer-like Traverse, which this court has carefully examined.

The petitioner is challenging three separate CAB proceedings. The court is well aware of its obligations under such cases as Hamilton v. O'Leary, 976 F.2d 341 (7th Cir. 1992), Forbes v. Trigg, 976 F.2d 308 (7th Cir.1992), Miller v. Duckworth, 963 F.2d 1002 (7th Cir.1992), and Harris v. Duckworth, 909 F.2d 1057 (7th Cir.1990). See also Billops v. Wright, 803 F.Supp. 1439 (N.D.Ind.1992).

The petitioner challenges three different CAB proceedings and each was originally filed as a separate action. This court consolidated all three into the above captioned case.

The first CAB proceeding involved the charge of threatening another at the Correctional Industrial Complex in Pendleton, Indiana in May, 1991. On December 17, 1993, the disciplinary sanction was reversed and all sanctions were rescinded, rendering that claim moot. Essentially, based on this fact, there are only two disciplinary proceedings at issue in the § 2254 action.

In RDC XX-XX-XXXX, while the petitioner was confined at the Correctional Industrial Complex in Pendleton, Indiana, he was charged with use of a controlled substance. On August 7, 1992, prison officials smelled marijuana coming from the petitioner's room. A search of the petitioner's room revealed no evidence of unauthorized drugs, and no charges were initiated. On August 10, 1992, CIC Officer James Dick ordered the petitioner to submit to a urine test. The Attorney General indicates that "before submitting to a urine sample, the petitioner was strip searched, and a rubber item appearing to be a finger tip from a glove was found attached to his penis by rubber bands." See Memorandum in Support of Return to Order to Show Cause. "The rubber receptacle, which contained urine, was confiscated, and the petitioner then produced a sample of his own urine." Id. The urine tested positive for THC and cocaine.

On August 24, 1992, the petitioner received a copy of the Notice of Disciplinary Hearing. The Notice indicates that the petitioner requested four witnesses and a lay advocate. Three of the requested witnesses were inmates, and the lay advocate was Timothy Shelton. The Attorney General indicates that:

Two forms of this notice exist; in one, the name James Johanningsmeier appears faintly below Shelton's name, while in the other Shelton's name is stricken through and there is written, "Offender refused. Also not on list." Offender Johanningsmeier agreed to serve.

Id.

On August 26, 1992, a disciplinary hearing was held in front of a single officer. The Report of Disciplinary Hearing indicates that the petitioner gave the following testimony at the proceeding:

I'm not saying I've not smoked pot before but I quit approx. 3 mo. when Ofc. Masters started on Dorm A and he was constantly shaking me down saying, "I know your dirty. I'm going to get you one way or I'll drop you, but I'll get you." Plus I know for a fact that on 7-6-92 they found joints (3-4), floating in coffee pot. Then again on 8-2-92. So I think I was singled out when I think everyone else whom drinks from coffee pot would come up dirty. This is due to the investigator having a dislike for me, "Cambron." That's why I got a rubber glove with piss from someone who don't drink fm coffee pot.

Id. The hearing officer also "noted that he had contacted Mr. Hummel, whom the petitioner had identified as the unit manager of his dorm at CIC...." The petitioner had requested Mr. Hummel on his witness list. The hearing officer explained that "Mr. Hummel had said that only two cigarettes had been found in the coffee pot and that had been `some time ago.'" Id. "The other witnesses identified by the petitioner were not contacted by the officer." Id.

The hearing officer found the petitioner guilty of the abovementioned charges and explained:

Due to amount of drugs in system along w/statement at hearing that he admitted he knew he was dirty on drop also by trying to conceal. Via tx. Mr. Hummel stated there were only 2 untested cigarettes found in hot water pot. Also only hot water in coffee pot and not as stated by offender Wade.

Id. In finding the petitioner guilty, the hearing officer noted that he had tested positive not only for marijuana but also for cocaine. As explained by the Attorney General, "the hearing officer found the petitioner guilty, basing his finding on the conduct and investigation reports as corroborated by Wade's attempt to substitute another inmate's urine for his and by his flushing something down the toilet immediately after discharging it into the water." Id. The officer demoted Wade one credit class, took away 150 days of earned credit time, and ordered him to serve 30 days in disciplinary segregation.

The petitioner pursued the applicable administrative appeals as mandated by Markham v. Clark, 978 F.2d 993 (7th Cir.1992). In his appeal papers, the petitioner listed the following errors:

With regard to the hearing officer's failure to contact the three CIC inmates he had listed among his four witnesses, Wade stated that the inmates would have been able "to verify that drugs had been found in the coffee pot several times and as recent as 8-2-92, when Wade was drug screened on 8-10-92". Wade asserted that the hearing officer's refusal to call the inmates, based as it was on the quantity of drugs found in Wade's system, deprived him of a valid defense. He wrote:

I never contended that I was not dirty. But that the reason I was is because someone spiked the coffee pot water on several occasions July 6th 1992, Aug 2 1992 and other times with marijuana joints and possibly cocaine and that I knew there were drugs in my system because I drank water out of the coffee pot at the times when drugs were found in the coffee pot and the drugs that were in my system were not put there knowingly.

Id. (spelling corrected by the Attorney General in their brief).

On September 2, 1992, the Superintendent of CIC denied the petitioner's appeal. In his response, the Superintendent addressed the witness question as follows:

The Hearing Officer denied witnesses based on Section 24-D of the ADPP Adult Disciplinary Policy Procedures. You offer little in your appeal regarding any impact the witnesses would have provided. It is acknowledged that two cigarettes (which could have contained marijuana) were found on one occasion in the hot water pot on the unit. The hypothesis that a "free" high was regularly provided to offenders in A-building by putting marijuana (in cigarette papers?) into the coffee water is a novel idea, but inherently ridiculous.

Id.

It needs to be emphasized that this court does not sit as a trier de novo in state court criminal proceedings and does not sit as a court of general common law review. The collateral review that is envisioned by § 2254 focuses on violations of the federal Constitution. See Bell v. Duckworth, 861 F.2d 169 (7th Cir.1988), cert. den., 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989). It needs to be mentioned that simply violating statutes or regulations does not generally of itself come within the ambit of § 2254. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

The petitioner asserts that the abovementioned urine test and the attendant procedures violate his Fourth Amendment rights. On this issue, the petitioner indicates that "an officer's alleged detection of the odor of burnt marijuana does not necessarily establish probable cause, and the issue of probable cause is critical in that the urinalysis is to be `random'" See Memorandum in Opposition to Respondent's Return to Order to Show Cause. Furthermore, the petitioner asserts that "an unconstitutional search and seizure occurred because 1) prison officials had prior knowledge of the drugs in the pot; 2) the tests were made for harassment purposes in retaliation against the petitioner by reporting Officer Masters; 3) the petitioner was singled out (he was the only one tested that day)." Id.

It is important to note the Fourth Amendment ramifications of this issue. The "language of the Fourth Amendment raises two questions: (1) when has a search and seizure occurred, triggering the protections of the Fourth Amendment, and (2) when is a search or seizure prohibitively unreasonable?" Sheldon Krantz and Lynn S. Branham, The Law of Sentencing, Corrections, and Prisoner's Rights: Cases and Materials (4th Ed.) at 409 (Searches, Seizures, and Privacy Rights). Any discussion of the Fourth Amendment in the context of the penological system must begin with two very important Supreme Court opinions issued in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

In Hudson v. Palmer, supra, the Court, speaking through Chief Justice Burger, evaluated the first of the Fourth Amendment issues. Specifically, the Court evaluated whether an inmate has a "right of privacy in his prison cell entitling him to the protection of the Fourth Amendment...." Id. The Court explained "that society is not prepared to recognize as legitimate any subjective expectation of...