Opinion
No. 3:02cv0313 AS
July 31, 2002
MEMORANDUM AND ORDER
On April 29, 2002, pro se petitioner, Jerome Holloway, an inmate at the Miami Correctional Facility (MCF) in Bunker Hill, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on June 17, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on July 29, 2002, which this Court has carefully examined.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. He was charged with unauthorized use of a controlled substance resulting from a positive urinalysis test. This Court remembers well Wykoff v. Resig, 613 F. Supp. 1504 (N.D.Ind. 1985), aff'd by unpub. order, 819 F.2d 1143 (7th Cir. 1987). What is relevant to this case is the sanction which was a deprivation of 90 days of previously earned credit time, implicating Wolff v. McDonnell, 418 U.S. 539 (1974).
Wykoff has found favor in at least two other circuits. See Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 1986); Chaney v. Southern Railway Co., 847 F.2d 718, 721 (11th Cir. 1988). District Courts in the Second, Sixth, Seventh, and Ninth circuits have also cited to this Court's decision in Wykoff with approval, See Fowler v. New York City Dept. of Sanitation, 704 F. Supp. 1264, 1272 (S.D.N.Y. 1989); Loworn v. City of Chattanooga, Tennessee, 647 F. Supp. 875, 877 (E.D.Tenn., S.D. 1986); Holm v. Haines, 734 F. Supp. 366, 371 (W.D.Wis. 1990); Pella v. Adams, 638 F. Supp. 94, 97 (D. Nev. 1986); Amalgamated Transit Union, Local 1277, AFL-CIO v. Sunline Transit Agency, 663 F. Supp. 1560, 1570 (C.D.Cal. 1987); as have state courts in Alabama, Idaho, Indiana, Maryland, and New York. See Martin v. State, 616 So.2d 384, 387 (Ala.Crim.App. 1993); Works v. State, 575 So.2d 622, 624 (Ala.Crim.App. 1991); Driver v. State, 576 So.2d 675, 677 (Ala.Crim.App. 1991); Martin v. State, 562 So.2d 294, 296 (Ala. Crim App. 1990); Bourgeois v. Murphy, 809 P.2d 472, 474 (Idaho Sup.Ct. 1991); Penrod v. State, 611 N.E.2d 653, 654 (Ind.Ct.App. 1993); Wilson v. State, 521 A.2d 1257, 1261 (Md.Ct.Spec.App. 1987); Lahey, et al. v. Kelly, 524 N.Y.S.2d 30, 33 (N.Y. 1987); Vasquez v. Coughlin, 118 A.2d 897, 898 (N.Y.Sup.Ct. 1986).
This Court is very concerned about a possible violation of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States. This petitioner claims that he was immediately placed in pre-hearing detention, and that four Caucasian offenders similarly situated were not removed from general population. Recently in another case where there was even a lesser possible violation of the equal protection clause, this Court was required by the Court of Appeals to hold an evidentiary hearing. This issue cannot be gainsaid simply by asserting that it is moot, and does not impact the finding or sanction in the case. There is no question that the taking of the sample was authorized, and otherwise there has been compliance with Wolff. However, this Court now remands this case to the Indiana Department of Corrections to provide this Court with information that as a part of this process, this petitioner, an African American, was treated differently than other inmates involved in the same situation who were Caucasians. That issue must be taken seriously by this Court and by the Indiana prison authorities.
This case is now REMANDED so that this possible violation of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States can be examined carefully. IT IS SO ORDERED.