15-1884 | 7th Cir. | Apr 19, 2016
Before W OOD , Chief Judge , and P OSNER and W ILLIAMS ,
Circuit Judges . W ILLIAMS , Circuit Judge . A disciplinary officer found in- mate Curtis Ellison guilty of possessing heroin at Pendleton Correctional Facility in Indiana. The officer punished Ellison by stripping him of 90 days’ good-time credit. After exhaust- ing his administrative remedies, Ellison petitioned the dis- trict court for collateral review under 28 U.S.C. § 2254, and he now appeals the denial of that petition. Because Ellison was prevented from defending against the accusation that he possessed a controlled substance, we vacate the district court’s decision and remand for further proceedings.
Correctional Officer Guffey presented Ellison with a screening report (the notice given an inmate about an im- pending disciplinary proceeding) asserting that, slightly more than a week earlier, Correctional Officer Bynum had confiscated heroin during a search of Ellison’s cell. Ellison told Guffey that Bynum (whom Ellison knew) had not searched his cell that day. Two unfamiliar guards conducted the search, he said, and found nothing. Indeed, although a conduct report from Bynum does say that he found heroin in cell 10-5D, which is assigned to Ellison, a photo of the heroin discovered during the search is labeled “Cell 10-6D.” That cell is located on the other side of the building from Ellison. He explained to Guffey that Bynum’s conduct report mis- takenly attributes to him the heroin found in Cell 10-6D, and he asked Guffey to identify the two guards who actually had searched his cell that day. He requested in writing that those guards, as well as Officer Bynum, appear as witnesses at his disciplinary hearing. Ellison also requested the surveillance video and the test results for the substance.
According to Ellison, three days after receiving the screening report, he recognized and spoke with one of the guards who had searched his cell. The guard identified him- self as Correctional Officer Dorethery, confirmed that he had searched Ellison’s cell on the day in question (but not with Officer Bynum), and stated that no contraband had been found during the search. Dorethery also said that his name would have been included in the conduct report as a witness if heroin had been found during the search. Dorethery said he was willing to provide Ellison with a statement for his hearing and recommended contacting Sergeant Easton, his supervisor, to obtain a copy of the search log identifying the guards who had searched each cell. Ellison wrote to Officer Guffey the same day, explaining that he had identified Dorethery and wished to use his testimony and the search log to show that Bynum had found the heroin in Cell 10-6D, as noted on the photo of the contraband.
No witnesses showed at Ellison’s hearing the following day. Not even Officer Bynum was present, even though El- lison had requested him by name at screening and he pre- sumably could have addressed the discrepancy between El- lison’s cell number included in the conduct report and a dif- ferent inmate’s cell number on the photo of the heroin. The hearing officer refused to call Officer Dorethery because, El- lison was told, his request had not been made at screening (this despite the fact that Ellison had been explicit at screen- ing that he wanted to call as witnesses “the officers who shook down the cell” and had notified Officer Guffey promptly upon learning Dorethery’s name). No explanation was given for the hearing officer’s failure to call Bynum. El- lison was not permitted to watch the video of the search, and though the hearing officer viewed the video herself, she simply noted in her written decision, “Ofc. seen going into Ofds. cell,” without naming the guard in the video or even saying she would recognize Bynum if it was him. At the hearing Ellison testified that he had never used drugs, em- phasized that the cell number written on the photo shows that the heroin was found in a different inmate’s cell, and characterized the contradictory conduct report as a case of “clear human error.” The hearing officer still found Ellison guilty.
In the district court Ellison claimed that he was denied due process because, he argued, the evidence of guilt was inadequate, the disciplinary hearing was not conducted fair- ly, and the evidence that the seized substance was heroin (an e-mail to Officer Guffey from “Tom Francum” saying that the substance had tested positive) was unreliable. Ellison elaborated that he had identified Officer Dorethery and re- quested both Dorethery’s testimony and the search log in advance, and that the evidence he requested had been essen- tial to show that the photograph, not Officer Bynum’s later conduct report, correctly identifies the cell where the heroin was found. But the district judge understood Ellison to be challenging only the sufficiency of the evidence on which the hearing officer relied, and denied the § 2254 petition. The court reasoned that, although “there was contradictory evi- dence presented at his hearing, there is no indication that the decision was arbitrary.” The conduct report, the court con- tinued, provided some evidence on which to sustain the finding of guilt.
As an initial matter, we agree with Ellison that the dis- trict court read his petition too narrowly. True enough, the petition and Ellison’s supporting memorandum do focus, as far as legal theories, on the sufficiency of the evidence gen- erally and the reliability of the particular proof used to estab- lish that the substance was heroin. But Ellison’s detailed fac- tual allegations confirm his pursuit of the claim that he was denied due process by the hearing officer’s refusal to allow him to present evidence. The respondent (despite now con- tending otherwise) understood Ellison’s petition to include a claim about the hearing officer’s restrictions on presenting evidence and defended that claim on the merits. In the dis- trict court the respondent never suggested, as he argues now, that Ellison procedurally defaulted this claim, so that defense has been waived. See Buggs v. United States , 153 F.3d 439, 444 (7th Cir. 1998); United States v. DeRobertis , 798 F.2d 1062, 1066 (7th Cir. 1986). Indeed, in reply to the respond- ent’s opposition, Ellison confirmed that the respondent had correctly understood him to be complaining about the re- strictions on his presentation of evidence. That is our read- ing of the petition as well.
Indiana prisoners have a liberty interest in earned good- time credits and must be afforded due process before those credits may be taken away. See Piggie v. McBride , 277 F.3d 922, 924 (7th Cir. 2002); Montgomery v. Anderson , 262 F.3d 641, 644–45 (7th Cir. 2001). Although inmates are not entitled to the “full panoply of rights” due a defendant in a criminal proceeding, Wolff v. McDonnell , 418 U.S. 539" date_filed="1974-06-26" court="SCOTUS" case_name="Wolff v. McDonnell">418 U.S. 539, 556, 566 (1974), they must be allowed to present relevant evidence, including witness testimony, unless it is cumulative or unduly threat- ens the security of the facility. See Piggie , 277 F.3d at 925; Forbes v. Trigg , 976 F.2d 308" date_filed="1992-10-21" court="7th Cir." case_name="Jerry K. Forbes v. Clarence Trigg, Superintendent">976 F.2d 308, 315–19 (7th Cir. 1992); Miller v. Duckworth , 963 F.2d 1002" date_filed="1992-05-13" court="7th Cir." case_name="Chad Eric Miller v. Jack A. Duckworth, and the Attorney General of the State of Indiana">963 F.2d 1002, 1004–05 (7th Cir. 1992). Moreover, a hearing officer cannot refuse to consider an inmate’s evi- dence simply because other evidence supports a finding of guilt.
The issue here is not whether Officer Bynum’s conduct report provided a sufficient basis to find Ellison guilty, since a hearing officer’s decision need only rest on “some evi- dence” logically supporting it and demonstrating that the result is not arbitrary. See Superintendent, Mass. Corr. Inst. v. Hill , 472 U.S. 445" date_filed="1985-06-17" court="SCOTUS" case_name="Superintendent, Mass. Correctional Institution at Walpole v. Hill">472 U.S. 445, 454 (1985); Webb v. Anderson , 224 F.3d 649" date_filed="2000-08-16" court="7th Cir." case_name="James L. Webb v. Ron Anderson, Superintendent, Indiana State Prison">224 F.3d 649, 652 (7th Cir. 2000). But when a prisoner contends that he was denied access to evidence necessary to defend against a dis- ciplinary charge, his claim is properly understood as “one of procedural due process rather than sufficiency of the evi- dence.” Viens v. McDaniel , 871 F.2d 1328, 1336 n.2 (7th Cir. 1989).
Ellison was entitled to present evidence refuting Of- ficer Bynum’s conduct report, and given the conflict between that report and the location of the heroin identified on the photo, the hearing officer’s refusal to permit Ellison to exer- cise that right is particularly troubling. See Pannell v. McBride , 306 F.3d 499, 503 (7th Cir. 2002); Meeks v. McBride , 81 F.3d 717" date_filed="1996-04-17" court="7th Cir." case_name="Michael Meeks v. Daniel R. McBride and Attorney General of the State of Indiana">81 F.3d 717, 721 (7th Cir. 1996). The hearing officer could not have known whether Officer Bynum erred in labeling the photo or the conduct report, and that is precisely why El- lison’s explicit request to have Bynum present at the hearing should have been honored. Ellison also was entitled to have his written request to call Officer Dorethery honored; testi- mony from Dorethery that he searched Ellison’s cell with help from a guard other than Bynum would have directly undermined the validity of the conduct report. See Meeks , 81 F.3d 717" date_filed="1996-04-17" court="7th Cir." case_name="Michael Meeks v. Daniel R. McBride and Attorney General of the State of Indiana">81 F.3d at 720.
The hearing officer’s treatment of the video is equally problematic: Her cursory statement that the video shows an officer entering Ellison’s cell misses the point, because un- less it is Officer Bynum seen in the video going into Ellison’s cell, the disciplinary case against Ellison falls apart. Given these errors—along with the respondent’s failure to offer any explanation for the conflicting evidence or challenge El- lison’s version of events—we conclude that Ellison was de- nied due process.
Because remand is necessary to correct these errors, we need not address Ellison’s final challenge regarding the reli- ability of the test results identifying the substance as heroin. We note, however, that the record contains nothing more than an e-mail to the hearing officer stating that the sub- stance “did test positive” with no information about who performed the test, the type of test which was used, or the chain of custody. Administrative decisions resting on chemi- cal analysis typically require both the test results and a chain of custody linking those results to the particular prisoner. Webb , 224 F.3d at 652–53. Perhaps chemical testing would’ve been superfluous had Officer Bynum testified that, based on his training and experience, he recognized the substance as heroin, United States v. Sapanaw , 366 F.3d 492, 496 (7th Cir. 2004), but given that he didn’t testify, Ellison was essentially required to accept the hearing officer’s word that the sub- stance was actually tested.
Ellison is entitled to a disciplinary hearing comporting with Wolff or else his good time must be restored. Accord- ingly, the district court’s decision is VACATED, and the case is REMANDED for further proceedings.