Opinion
No. 3:04cv0220 AS.
December 15, 2004
MEMORANDUM AND ORDER
On March 24, 2004, pro se petitioner, Donty Simmons, 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 August 2, 2004, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse and Response on October 28, 2004.
As the loss of good time credit is a "liberty" interest protected by the Fourteenth Amendment to the Constitution, it triggers the applicability of Wolff v. McDonnell, 418 U.S. 539 (1974) and requires certain procedural steps as stated in that Supreme Court decision. Due process requires that the petitioner be given: (1) advance written notice of the charges against him at least 24 hours before the hearing; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. Henderson v. U.S. Parole Comm'n, 13 F.3d 1073, 1077 (7th Cir. 1994) (citing Wolff v. McDonnell, 418 U.S. 539, 563-567 (1974)). The prisoner should also be afforded an opportunity to be heard before an impartial decision maker. Id.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. He was the subject of three prison disciplinary proceedings designated as WCC 03-11-0581 (581), WCC 03-11-0632 (632), and MCF 03-12-0328 (328). The sanction in 581 was a 30 day phone/commissary restriction, in 632 was a deprivation of 30 days earned credit time, which implicates Wolff v. McDonnell, 418 U.S. 539 (1974), and in 328 was a deprivation of 120 days earned credit time, which also implicates Wolff.
All claims relating to CAB hearing 581 are dismissed. Mr. Simmons only received 30 days phone/commissary restriction as a sanction. Mr. Simmons has no liberty interest in not being placed on phone or commissary restriction, so the question of procedural due process is irrelevant. See Sandin v. Connor, 515 U.S. 472 (1995).
Mr. Simmons alleges the CAB violated his rights in ways: 1) he was written up in retaliation; 2) his due process rights were violated because he was denied an impartial board member and was denied documentary evidence; and 3) violations of the Adult Disciplinary Procedures occurred.
The respondent filed Exhibits A through RR which the Court has examined. Regarding all of the claims, there has been compliance here with the procedural demands of Wolff. Mr. Simmons's first claim is without merit. The due process provided by the DAB hearing allows the inmate to prove his innocence. See McPherson v. McBride, 188 F.3d 784,787 (7th Cir. 1999) (holding that as long as procedural protections are constitutionally adequate, courts will not overturn a disciplinary decision solely because evidence indicates the claim was fraudulent.). Mr. Simmons argues that the CAB due process rights aren't enough if there is evidence they were retaliatory in nature. Mr. Simmons has not proven that the charges were retaliatory. He admitted to having the boots he was not supposed to have, and does not prove that any of the charges used to find him guilty as a habitual offender were overturned. In this case, Mr. Simmons' procedural protections were constitutionally adequate. Additionally, Mr. Simmons does not establish that the claim was fraudulent.
Mr. Simmons's second claim alleges that he was denied an impartial CAB board member and documentary evidence. It is clear that prisoners have a due process right to an impartial decision maker. See e.g., Pannell v. McBride, 306 F.3d 499, 502 (7th Cir. 2002); Merritt v. De Los Santos, 721 F.2d 598 (7th Cir. 1983); Redding v. Fairman, 717 F.2d 1105 (7th Cir. 1983). For example, in Merritt the court held that if an official is substantially involved in the investigation of the charges against an inmate, the due process requirement of impartiality mandates the disqualification of that official. "Tangential involvement" in the investigation, however, does not disqualify an officer from sitting on the adjustment committee. Merritt, 721 F.2d at 601.
In this case, Mr. Simmons alleges that Lt. McCoy was responsible for the habitual conduct rule violator charge. However, the record establishes that K. Hall signed the Report of Conduct. (Exhibit S). Additionally, habitual conduct violations are based on the inmates past history of conduct violations. Even if Lt. McCoy suggested that Mr. Simmons be charged, he was not involved in any investigation and therefore was not tangentially involved.
Mr. Simmons' also alleges that he was denied documentary evidence. He says in 632 he was denied a copy of the phone list at the hearing. However, Mr. Simmons was charged with disorderly conduct, not unauthorized use of the phone. The CAB found that the phone list was irrelevant and this court agrees. In 328, Mr. Simmons alleges he was denied a continuance to obtain copies of all 5 conduct reports which were used to charge him as a habitual offender. Mr. Simmons was given a list of the 5 violations used to charge him. To the extent that he is arguing that the CAB didn't have access to the previous conduct reports, his claim fails because the CAB did have access to his record. To the extent that he argues he didn't have time to get copies so he could defend himself because he was denied a continuance, his claim also fails.
"[T]he rule of Brady v. Maryland, 373 U.S. 83 (1963), requiring the disclosure of material, exculpatory evidence, applies to prison disciplinary proceedings." Piggie v. Cotton, 344 F.3d 674, 677-78 (7th Cir. 2003); see also, Chavis v. Rowe, 643 F.2d 1281, 1285-86 (7th Cir. 1981). The function of Brady in the prison disciplinary context is two-fold: first, to ensure that the disciplinary board considers all relevant evidence; and, second, to enable the prisoner to present his best defense. Piggie v. Cotton, 344 F.3d at 678.
In this case, Mr. Simmons first request for a continuance was granted. Another continuance was granted because the CAB chairman was unavailable, and continued a third time due to staff time constraints. Mr. Simmons had 29 days to get copies of the conduct reports. Additionally, Mr. Simmons knew what the violations were because he makes mentions of the various charges at the CAB hearing. (Exhibit DD). Mr. Simmons was able to present his best defense to the CAB, therefore, his claim is without merit.
Finally, Mr. Simmons alleges that there were violations of the Adult Disciplinary Procedures (ADP). He says the violations related to the types of hearing to be conducted, time limits to conduct hearings and opportunity to present documentary evidence during hearing. The State counters that Mr. Simmons is claiming that the prison violated its own policy, and that such a claim is not cognizable in this court. The State is correct. Relief in this action is only available from violations of the federal constitution or laws. Estelle v. McGuire, 502 U.S. 62 (1991). State law questions do not state a claim for habeas relief and must be denied. Hester v. McBride, 966 F.Supp. 765 (N.D. Ind. 1997). Therefore, any claim that the State failed to give Mr. Simmons a timely hearing under its own rules and policies, or any other challenges to the ADP, are not actionable in a habeas proceeding. Accordingly, the claim is denied.
A careful examination of this record fails to disclose that this petitioner has established a basis for relief here under 28 U.S.C. § 2254 and such is now DENIED.
SO ORDERED.