DARNELL MAYERS, Petitioner, v. RON ANDERSON, Respondent.



CAUSE NO. 3:99-CV-0672 AS



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA, SOUTH BEND DIVISION



93 F. Supp. 2d 962; 2000 U.S. Dist. LEXIS 4920



March 28, 2000, Decided







DISPOSITION: [**1] Respondent's motion to alter or amend judgment [docket # 12] DENIED and its February 10, 2000 order granting the relief requested in the petitioner's habeas corpus petition and setting aside the finding of guilt in case number ISP 99-05-0141 reaffirmed.







COUNSEL: DARNELL MAYERS, petitioner, Pro se, Michigan City, IN.


For RON ANDERSON, respondent: Diane M Mains, Indiana Department of Correction, Indianapolis, IN.



JUDGES: ALLEN SHARP, JUDGE, UNITED STATES DISTRICT COURT.



OPINIONBY: ALLEN SHARP



OPINION:

[*964] MEMORANDUM AND ORDER

Petitioner Darnell Mayers, a prisoner confined at the Indiana State Prison, filed a petition for writ of habeas corpus challenging the loss of good time at a prison disciplinary hearing. On February 10, 2000, the court set aside the finding of guilt in case number ISP 99-05-0141, subject to a rehearing by the Conduct Adjustment Board ("CAB"). This case is now before the court on respondent Ron Anderson's motion to alter or amend order.

On May 10, 1999, Correctional Officer Jason Vickers wrote a conduct report charging Mr. Mayers with possession, introduction, or use of a controlled substance (marijuana). On May 13, 1999, the Conduct Adjustment Board found Mr. Mayers [**2] guilty, and recommended that he be demoted from good time Credit Class I to Credit Class III, and that he be deprived of ninety days of earned good time credits. Mr. Mayers unsuccessfully followed the Indiana Department of Correction ("IDOC") administrative appeals procedure described in Markham v. Clark, 978 F.2d 993 (7th Cir. 1992), thus exhausting his "state court" remedies. He then filed a petition for writ of habeas corpus, asserting that he had been denied the right to present evidence at the hearing "because the C.A.B. would not consider the videotape that showed the real truth in the matter." This court granted the petition for writ of habeas corpus and ordered the respondent to ensure that a "full and fresh CAB hearing" be held, "at which the videotape and its contents are available to the petitioner and the CAB."

The respondent states that he "is unable to comply with the Court's order . . . because the videotape no longer exists." He also asserts that the order granting the petition for habeas corpus should be set aside because there is "no indication in the record that Petitioner requested to view the videotape until his initial administrative appeal. [**3] " The respondent submits the affidavits of Correctional Captain Daniel Forker and Conduct Adjustment Board Chairman Vince Forestieri in support of his motion to alter or amend judgment.

In his affidavit, Captain Forker states that in May 1999, it was the practice at the Indiana State Prison to reuse every security videotape every seven days. Accordingly, the videotape taken on May 9, 1999, was reused on May 16, 1999. Mr. Forestieri states that he has no recollection of the case, but the hearing report he prepared at the hearing "does not indicate that Mayers requested to view the security camera videotape. It was [his] usual practice to note on the hearing report if an offender requests information or evidence which was denied or not presented at the hearing . . ." Mr. Forestieri concludes "that I did not view the security camera videotape . . . and that Mayers did not request to view the security camera videotape at the disciplinary hearing."

Mr. Mayers responds to the respondent's submissions with a statement "under penalty of perjury" that he asked the screening officer to put the videotape down on the screening report as something he wished to have reviewed at the hearing and [**4] that he "refused to put his signature on the screening report, because the screening officer would not put the videotape down as a witness." Mr. Mayers also submits the affidavit of Donald E. Mahon, his lay advocate at the hearing, in which Mr. Mahon states that he "seen [sic] Mayers ask the C.A.B. to look at the videotape." n1



n1 The report of disciplinary hearing form filled out by the CAB chairman after the hearing does not indicate whether or not Mr. Mayers had a lay advocate at the hearing -- that portion of the form is simply left blank. Report of disciplinary hearing forms viewed by this court in other cases either noted that no lay advocate was present or stated the name of the lay advocate. The notice of disciplinary hearing prepared by the screening officer establishes that "Mahon 856518" was appointed as Mr. Mayers's lay advocate. The respondent does not challenge Mr. Mahon's statement that he was present at the hearing, and this court specifically credits Mr. Mahon's statement that he was present at the CAB hearing as Mr. Mayers's lay advocate.


[**5]

[*965] State prisoners have a liberty interest in good time credits, under the Fourteenth Amendment's due process clause, that cannot be deprived without due process. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1994); see also Sandin v. Conner, 515 U.S. 472, 487, 115 S. Ct. 2293, 2302, 132 L. Ed. 2d 418 (1995) (distinguishing between a prison disciplinary sanction that will inevitably affect the duration of the inmate's sentence and a sanction that does not affect the duration of his sentence). The procedural protections, established by Wolff v. McDonnell, in connection with deprivation of good time credits in prison disciplinary hearings, are essentially advance written notice of the disciplinary charges, an opportunity to be heard and to present evidence and witnesses, and adjudication by a neutral committee that puts its findings on the record. McKinney v. Meese, 831 F.2d 728, 733 (7th Cir. 1987). Once a prisoner has been granted these procedural protections, the role of a reviewing court "is limited to determining whether there was sufficient evidence to support the committee's decision." Id. at 733. [**6] A committee's determination of guilt is constitutionally valid if there is "any evidence in the record that could support the conclusion reached by the disciplinary board." Superintendent, Mass. Correctional Institution v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356 (1985).

The offense with which Mr. Mayers was charged occurred on May 9, 1999, the conduct report was written on May 10, he was screened on May 10, the hearing was conducted on May 13, and the security videotape was destroyed on May 16. Accordingly, the security videotape cited by Mr. Mayers was still in existence when the hearing was held and would have been available for use at the hearing.

Wolff v. McDonnell specifically provides that where an inmate loses good time credits as a result of a prison disciplinary action, the Fourteenth Amendment's procedural due process clause requires that he "should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff v. McDonnell, 418 U.S. at 566, 94 S. Ct. at 2979. The security videotape constitutes [**7] "documentary" evidence, the respondent does not suggest that CAB review of this tape would have put any institutional safety or correctional goals at risk, and this court can discern no potential hazard to institutional safety or correctional goals. Accordingly, if Mr. Mayers made a timely request to have the conduct adjustment board consider this evidence, the court concludes that he was entitled to have the board either consider the videotape or state on the record why it would not review the tape.

That the videotape no longer exists does not assist the respondent in any way if Mr. Mayers made a timely request to have the tape considered at the hearing because it was available when the hearing was held and its present unavailability is in no way the petitioner's fault. n2 On the [*966] other hand, if Mr. Mayers did not make a timely request for the CAB to view the videotape, then the fact that the tape still existed at the time of the hearing does not assist him in any way. McPherson v McBride, 188 F.3d 784, 786 (7th Cir. 1999) (the due process clause does not require the consideration of evidence that could have been but was not presented at the disciplinary hearing). [**8] The key question before the court is when Mr. Mayers requested to have the tape considered.



n2 The Seventh Circuit has amplified the Wolff guarantees by holding that prisoners are entitled to disclosure of exculpatory evidence unless such disclosure would unduly threaten institutional concerns. Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). The respondent has suggested that "habeas corpus relief may be granted only on the basis of rights clearly established by U.S. Supreme Court precedent," citing 28 U.S.C. § 2254(d); Sweeney v. Parke, 113 F.3d 716 (7th Cir. 1997), but that "the right to exculpatory evidence, recognized by the Seventh Circuit has not been established by the Supreme Court." This is not a case, however, in which a prisoner was attempting to find out about or obtain potentially exculpatory information in a confidential prison investigative file. Here, the petitioner and the staff were fully aware that the incident was videotaped, and this court believes that Wolff v. McDonnell itself establishes Mr. Mayers's right to request that the disciplinary board consider the videotape just as he could have requested that the CAB consider information in his non-confidential prison packet.


[**9]

The respondent notes that this court has upheld the practice of denying requests for witnesses at disciplinary hearings where the prisoner does not ask for the witness before he appears at the hearing. see Billops v. Wright, 803 F. Supp. 1439 (N.D. Ind. 1992). The respondent then argues by analogy that Mr. Mayers "should have timely requested the security camera videotape at the screening or at the very least prior to the disciplinary hearing and most certainly prior to his initial appeal to the Superintendent." n3 The respondent further argues, citing Miller v. Duckworth, 963 F.2d 1002 (7th Cir. 1992), that a failure "to timely request the videotape as evidence . . . amount[s] to a waiver of his right to have the evidence considered at the hearing."



n3 The respondent relies heavily on the fact that the first time the request for the videotape appears in the written record of this disciplinary action is in Mr. Mayers' administrative appeal. But the screening report is filled out by the screening officer and the report of disciplinary hearing is filled out by the CAB chairman. The first document completed by the prisoner himself is the disciplinary hearing appeal form. Thus, if prison officials do not record a prisoner's request for evidence at the screening stage or at the hearing, the first time it would appear in the written record is in the appeal form.


[**10]

This court considers a prisoner's failure to request specific witnesses before the date of the disciplinary hearing as a waiver of the right to have those witnesses' testimony at the hearing because the Indiana Department of Correction has a specific procedure by which inmates may request witnesses prior to the hearing. The screening stage of an IDOC disciplinary proceeding combines the functions of arraignment and a final pretrial conference. When he screens an inmate, one of the things IDOC policy requires the screening officer to do is to ask the accused to identify the witnesses he wishes to call, and record that information in a portion of the screening report entitled "I wish to call the following witnesses." This enables the screening officer to arrange for the witnesses to be at the hearing or to gather their written statements in time to be presented at the hearing. To allow a prisoner to disregard this established procedure by withholding his witness requests until the day of the hearing would unreasonably disrupt the orderly operation of prison disciplinary proceedings by causing hearings to be postponed while witnesses are summoned, or even cause hearings to be rescheduled [**11] where a witness is unavailable.

The screening report, however, has no section dealing with documentary or other types of evidence. Accordingly, this court will not accord the IDOC, the same presumption regarding documentary evidence, including videotapes, that it affords to the department with regard to witness testimony. The IDOC could require the inmate to identify his evidence as well as his witnesses at the screening stage, but it has not done so. n4 If the department does [*967] not give the inmate the opportunity to identify documentary or videotape evidence at the screening stage, which is apparently the only time before the hearing when he could do so, then it must afford the inmate the right to make his request at the hearing itself. To hold otherwise would completely eviscerate the Wolff v. McDonnell guarantee that inmates be allowed to present documentary evidence in their defense. n5



n4 Indeed, according to Mr. Mayers's sworn statement, he asked the screening officer to list the videotape on the screening report as something he wanted the CAB to consider, but the screening officer refused to record his request. [**12]




n5 An inmate could bring documents that he has in his possession to a hearing without listing them at the screening stage. But he could not bring evidentiary materials that he knows exist but are not in his possession, such as unclassified documents in his prison packet or a security videotape, and to deny him the opportunity to ask for such materials either before the hearing or at the hearing itself would preclude him from ever being able to use them in his defense.


The respondent suggests that Mr. Mayers did not ask for the videotape at the hearing and indeed did not mention the videotape until his initial appeal in which he asks the reviewer to take "a look at the 'video recorder tape' of the 200 rang [sic] at 10:30 a.m. because Officer Vickers lied in his report." Mr. Mayers's sworn statement, however, asserts that he asked unsuccessfully at the screening stage that the videotape be listed as something he wanted the CAB to review.

In his habeas corpus petition, Mr. Mayers states that "the C.A.B. would not consider the videotape that showed the real truth in the matter." In the portion [**13] of his petition entitled Supporting Facts for Ground two, Mr. Mayers asserts "I said at the 'C.A.B. hearing,' both officer[s] were telling a lie, because no one took marijuana from me, and I was not running, and the videotape could show I was telling the truth, but the C.A.B. would not use the videotape at my disciplinary hearing." Lay Advocate Donald Mahon's affidavit, in which he states that he heard Mr. Mayers ask the CAB to review and consider the videotape, supports this version of events.

The report of disciplinary hearing contains a section in which the CAB chairman is to note whether the inmate asked for a lay advocate, confrontation/cross-examination of hostile witnesses, or witnesses on his own behalf. The form does not, however, contain a section where the CAB chairman can note whether the prisoner requested documentary or physical evidence. In the past, this court has allowed CAB officials to supplement the record in some circumstances to explain or clarify matters recorded on the report of disciplinary hearing. But unlike other cases in which this court has credited CAB officials' statements clarifying a brief written record, this petitioner offers evidence contradicting [**14] the CAB chairman's statement, creating a factual dispute on the matters sought to be clarified.

In regard to the question of when Mr. Mayers requested to have the tape considered by the disciplinary hearing committee, Mr. Mayers's uncontested sworn statement establishes that he made his first request to have the videotape listed as a "witness" at the screening stage, but the screening officer rejected his request. The balance of the evidence also indicates that Mr. Mayers repeated his request at the hearing but that the CAB rejected his evidentiary request. The CAB chairman states in his affidavit that he has no personal recollection of this case (which is unsurprising given the number of CAB cases arising at a maximum security facility such as the Indiana State Prison). But Mr. Forestieri notes that "it was [his] usual practice to note on the hearing report if an offender requests information or evidence which was denied or not presented at the hearing . . ." This statement, however, is directly contradicted, regarding the proceedings in this case, by the affidavit of Mr. Mayers's lay advocate, which states that Mr. Mayers did ask the CAB at the hearing to review the videotape. [**15]

[*968] As a general rule of law, an ambiguous document will be construed against its author and any ambiguity therein should be resolved in favor of the opposing party. The CAB chairman's statement of general policy about his "usual practice" in filling out disciplinary hearing reports is directly contradicted by evidence of what happened at this particular hearing. This court will not credit a statement of general policy or "usual practice" in the face of sworn testimony that the general policy or usual practice was not followed in a specific case.

After reviewing the record and the parties' submissions, the court concludes that the petitioner asked twice -- at the screening session and again at the CAB hearing -- to have the CAB review the security tape that recorded the incident that formed the basis for the conduct report in case number ISP 99-05-0141. The videotape constituted evidence Mr. Mayers contended would establish his innocence of the charge against him. Given these facts, the CAB's failure to view the tape or state on the record that viewing the tape would be hazardous to institutional safety or correctional goals violated the Fourteenth Amendment's procedural due process [**16] clause which, where good time is at stake in a disciplinary hearing, requires that the prisoner "should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff v. McDonnell, 418 U.S. at 566, 94 S. Ct. at 2979.

For the foregoing reasons, the court DENIES the respondent's motion to alter or amend judgment [docket # 12] and reaffirms its February 10, 2000 order granting the relief requested in the petitioner's habeas corpus petition and setting aside the finding of guilt in case number ISP 99-05-0141, subject to the Indiana Department of Correction's right to conduct a full and fresh CAB hearing at which the videotape and its contents are available to the petitioner and the CAB. If, as the motion to alter or amend order suggests, the prison has reused the security videotape, rendering it unavailable, the Indiana Department of Correction should restore the good time credits the petitioner was deprived of as a result of the hearing and reinstate him in the credit time earning classification from which he was demoted as a result of [**17] the hearing.

IT IS SO ORDERED.

DATED: March 28, 2000

ALLEN SHARP, JUDGE

UNITED STATES DISTRICT COURT

CLYDE PIGGIE, Petitioner v. CRAIG HANKS, Respondent.



No. 3:99cv0561 AS



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA, SOUTH BEND DIVISION



98 F. Supp. 2d 1003; 2000 U.S. Dist. LEXIS 6551



May 15, 2000, Decided







DISPOSITION: [**1] Relief requested in the petitioner's petition for writ of habeas corpus, GRANTED and finding of guilt in case number ISP 99-05-0156 set aside.









COUNSEL: CLYDE PIGGIE, petitioner, Pro se, Carlisle, IN.


For RONDLE ANDERSON, CRAIG HANKS, respondents: David A Arthur, Indiana Attorney General, Indianapolis, IN.



JUDGES: ALLEN SHARP, JUDGE, UNITED STATES DISTRICT COURT.



OPINIONBY: ALLEN SHARP



OPINION: [*1005]

MEMORANDUM AND ORDER

Petitioner Clyde Piggie, a prisoner committed to the Indiana Department of Correction ("IDOC"), filed a petition pursuant to 28 U.S.C. § 2254, naming Indiana State Prison ("ISP") Superintendent Rondle Anderson as respondent. The response filed by the Attorney General of Indiana on Superintendent Anderson's behalf advised the petitioner, pursuant to Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), of the consequences of failing to respond to the response to order, and the petitioner [*1006] filed an elaborate traverse with exhibits, which this court has carefully examined.

When he filed his petition for writ of habeas corpus, Mr. Piggie was confined at the Indiana State Prison, in Michigan City, Indiana, and the disciplinary action he complains of occurred at the ISP. But on February 2, 2000, the petitioner advised the court that he has been transferred to the Wabash Valley Correctional Institution ("WVCF") [**2] in Carlisle, Indiana, where he remains. Because the proper respondent to a habeas corpus petition is the petitioner's current custodian, the court sua sponte substitutes WVCF Superintendent Craig Hanks as respondent, in place of Superintendent Anderson.

On May 7, 1999, Correctional Officer LaDona Ellis wrote a conduct report charging Mr. Piggie with sexual assault. Officer Ellis accused Mr. Piggie of squeezing her buttocks while she was working on the 500 west range of D Cell House. On May 12, 1999, n1 the Conduct Adjustment Board ("CAB") found Mr. Piggie guilty, sentenced him to two years in disciplinary segregation, and recommended that he be demoted from good time Credit Class II to Credit Class III. Mr. Piggie unsuccessfully utilized the Indiana Department of Correction's administrative appeals procedure described in Markham v. Clark, 978 F.2d 993 (7th Cir. 1992), thus exhausting his "state court" remedies. He then filed a petition for writ of habeas corpus, asserting seven grounds for relief.



n1 In his response to order, the respondent refers to the hearing as having been held on May 11. According to the screening report, the CAB hearing was originally scheduled for May 11, but the report of disciplinary hearing is dated May 12 and the disciplinary hearing appeal form states the date of the hearing as May 12. For the purposes of this memorandum, the court will adopt the date contained on the report of disciplinary hearing, and assume that the hearing occurred on May 12, 1999.


[**3]

The Fourteenth Amendment's due process clause provides state prisoners a liberty interest in good time credits, and they cannot be deprived of good time credits without due process. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); see also Sandin v. Conner, 515 U.S. 472, 487, 115 S. Ct. 2293, 2302, 132 L. Ed. 2d 418 (1995) (distinguishing between a prison disciplinary sanction that will inevitably affect the duration of the inmate's sentence and sanctions that do not affect the duration of his sentence). The procedural protections established by Wolff v. McDonnell, in connection with deprivation of good time credits in prison disciplinary hearings, are essentially advance written notice of the disciplinary charges, an opportunity to be heard and to present evidence and witnesses, and adjudication by a neutral committee that puts its findings on the record. McKinney v. Meese, 831 F.2d 728, 733 (7th Cir. 1987). Once a prisoner has been granted these procedural protections, the role of a reviewing court "is limited to determining whether there was sufficient evidence to support the committee's decision. [**4] " Id. at 733. A committee's determination of guilt is constitutionally valid if there is "any evidence in the record that could support the conclusion reached by the disciplinary board." Superintendent, Mass. Correctional Institution v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356 (1985).

The petitioner alleges that the CAB denied his request to call Officer Ellis as a witness, violating standards established in Forbes v. Trigg, 976 F.2d 308 (7th Cir. 1992), cert. denied, 507 U.S. 950, 113 S. Ct. 1362, 122 L. Ed. 2d 741 (1993). In Forbes, the Seventh Circuit held that "where the underlying facts of the charged misconduct are in issue, the testimony of the charging officer would be relevant (and perhaps indispensable), and prison officials would have to offer some penological justification (such as those outlined in the Indiana statute) for refusing to call such a witness." Id. 976 F.2d at 318. In its report of disciplinary hearing, the CAB listed Officer Ellis as a witness, and she submitted a [*1007] brief written statement affirming the conduct report.

This court is very sensitive to the [**5] values in Forbes v. Trigg. See also Billops v. Wright, 803 F. Supp. 1439 (N.D.Ind. 1992). But Forbes does not establish an absolute right for an inmate to call the reporting officer to testify because "inmates have no right to confront and cross examine adverse witnesses." Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992); See also Wolff v. McDonnell, 418 U.S. at 567-568, 94 S. Ct. at 2980 (the Constitution does not require confrontation and cross examination at prison disciplinary hearings). Moreover, there is no due process violation when testimony of denied witnesses would be irrelevant, repetitive, or unnecessary, Forbes v. Trigg 976 F.2d at 318, and the Seventh Circuit ultimately concluded that the failure of the officer who wrote the conduct report against Forbes to testify at the CAB hearing did not violate his due process rights. Id. at 318.

The respondent argues that the IDOC responded to the court's admonishment in Forbes to reform the policy of allowing staff members and inmates to unilaterally decide not to testify by having them submit a written statement prior to the [**6] hearing, so that the CAB can determine if live testimony is necessary. Officer Ellis wrote a brief statement affirming the conduct report as written, and the CAB chairman apparently determined that her live testimony would be unnecessary.

The petitioner does not suggest how Officer Ellis' live testimony would have been necessary to further establish the facts of the incident, which might justify calling her as a live witness under the Forbes rationale. Rather, it appears that Mr. Piggie sought her live appearance at the hearing so he could try to convince her to say that the incident was an accident, which constitutes the sort of confrontation and cross examination found in Wolff v. McDonnell, and Rasheed-Bey v. Duckworth not to be required by the due process clause.

The petitioner asserts that he was denied an impartial decision maker because CAB member John Barnes, case manager for D Cellhouse, "investigated the alleged incident when Officer Ellis called Sgt. McKee on the radio." Due process requires that decision-makers in prison disciplinary proceedings be impartial and have no direct personal involvement in the incident that forms the subject of the hearing. Wolff v. McDonnell, 418 U.S. at 592, 94 S. Ct. at 2992; [**7] Redding v. Fairman, 717 F.2d 1105, 1113 (7th Cir. 1983), cert. denied, 465 U.S. 1025, 104 S. Ct. 1282, 79 L. Ed. 2d 685 (1984).

The decision whether or not a person should be disqualified from hearing a conduct matter must be determined on a case-by-case basis. Redding v. Fairman, 717 F.2d at 1105. An official who is directly involved in the incident or is otherwise substantially involved in the incident should be disqualified, but an official who is only tangentially involved need not be disqualified. Merritt v. De Los Santos, 721 F.2d 598, 601 (7th Cir. 1983). As this court reads the facts, Mr. Barnes arrived at the scene of the incident after it was over, did not participate in any official investigation of the incident, and had no personal knowledge of the material facts of the incident. Accordingly, Mr. Barnes was not sufficiently involved in the incident to require his disqualification from the CAB. Mr. Piggie also suggests that the CAB chairman was not impartial, but the court sees no basis in the facts presented to conclude that he was impartial within the meaning of Wolff v. McDonnell.

The petitioner [**8] asserts that the CAB chairman did not correct necessary errors on the conduct report. He states that there are two inmates surnamed Piggie who resided on the 500 West Range, and that sometimes officers got the two mixed up. But the conduct report identifies this petitioner by name and correct [*1008] IDOC number (# 933044), so there is no apparent "error" on the conduct report for the CAB chairman to correct. The potential problem arises from Officer Ellis' second written statement, in which she states that "the conduct report on Piggie # 884801 stands as written." The respondent advises the court in his response to order to show cause that IDOC # 884801 belongs to Franklin Piggie, presumably the inmate with whom the petitioner was occasionally confused.

In other circumstances, a mistaken identity claim might have some merit. But the petitioner did not deny at the CAB hearing that he was on the range when the incident occurred or assert that Franklin Piggie was the inmate who touched Officer Ellis. In his appeal from the CAB's finding of guilt, this petitioner admits that he was on the range and tried to "ease past" Officer Ellis (who was standing in the middle of the range), in order to [**9] get to his cell and avoid being written up for missing "roll-in," that Officer Ellis told him to "back up," and when he backed up, she called for assistance. Thus, the petitioner admits that he was the Inmate Piggie who was near Officer Ellis when this incident occurred, though denying that he squeezed Officer Ellis. There is simply no colorable suggestion in this case that Officer Ellis made a mistake at the time she wrote the conduct report in identifying this petitioner as the Inmate Piggie who she believed groped her.

The petitioner asserts that he did not receive a "full and fair review from higher authority" during the IDOC administrative appeals process because the post-conduct report statement made by Officer Ellis was detached from his appeal. But, as this court has already noted, the question of identification is not an issue in this case, and even if Officer Ellis' second statement did become detached from his appeal, it did not deprive him of a meaningful administrative appeal and does not entitle him to habeas corpus relief.

The petitioner alleges that he was not given a separate hearing, which he asserts is required by IDOC policy or practice, before being demoted to [**10] credit time earning class III, and that Superintendent Anderson did not approve the demotion as required by policy. But this court does not sit as a trier de novo in state criminal or administrative proceedings and does not sit as a court of general common law review. The collateral review envisioned by § 2254 focuses exclusively on violations of the Constitution, treaties and laws of the United States. See Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988), cert. denied, 489 U.S. 1088, 109 S. Ct. 1552, 103 L. Ed. 2d 855 (1989). The claim presented in this portion of the petition does not implicate any of the procedural protections established by Wolff v. McDonnell, and does not entitle the petitioner to relief under § 2254.

The petitioner asserts that the CAB's finding of guilt "does not satisfy [the] 'some evidence' standard" of Superintendent, Mass. Correctional Institution v. Hill. "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id. 472 U.S. at 455; McKinney v. Meese, 831 F.2d at 733. [**11] Officer Ellis' conduct report clearly identifies this petitioner as the person who she believed squeezed her buttocks and the CAB credited her statement in the section of the report of disciplinary hearing entitled "finding of fact and evidence relied on." Officer Ellis' statement is sufficient by itself to support a finding of guilt under the "some evidence" standard established in Superintendent v. Hill.

Finally, the petitioner asserts that he was denied the right to present evidence at the hearing because he was not allowed to present a videotape recording events on D Cellhouse's 500 west range on the day in question to the CAB. The parties agree that in May 1999, the ISP videotaped [*1009] events occurring on the ranges in its cellhouses, and this incident therefore may have been captured on tape.

In his response to order, the respondent argues that "there is no evidence in this record that the videotape was still in existence at the time of the hearing on May 11 [sic]. At that time, the tapes were reused soon after they were recorded, which has been changed in only the past several months. The tape was likely not even available." The incident between the petitioner and Officer [**12] Ellis occurred on May 7, 1999, and the hearing was conducted on May 12.

The respondent suggests that the videotape "was likely not even available," without providing any evidence to support that proposition. Recently, in Mayers v. Anderson, 93 F. Supp. 2d 962, 2000 WL 381943 (N.D. Ind.), this court reviewed another disciplinary action at the Indiana State Prison in which "the offense with which Mr. Mayers was charged occurred on May 9, 1999, the conduct report was written on May 10, . . . [and] . . . the hearing was conducted on May 13." Id. F. Supp. at , 2000 WL 381943 at page 2. Mr. Mayers challenged the CAB finding of guilt because the CAB refused to consider the videotape of the incident, which he insisted would clear him of the charges against him.

In that case, the respondent, Superintendent Anderson, submitted an affidavit from Correctional Captain Daniel Forker, stating "that in May 1999, it was the practice at the Indiana State Prison to reuse every security videotape every seven days." Mayers v. Anderson, F. Supp. at , 2000 WL 381943 at page 1. Pursuant to the practice [**13] in effect in May 1999 at the ISP, the security camera videotape that may have captured the incident between the petitioner and Officer Ellis would have been taped over on May 14, 1999, and would have been available for review at the petitioner's CAB hearing.

In Mayers v. Anderson, this court concluded that:


Wolff v. McDonnell specifically provides that where an inmate loses good time credits as a result of a prison disciplinary action, the Fourteenth Amendment's procedural due process clause requires that he "should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff v. McDonnell, 418 U.S. at 566, 94 S. Ct. at 2979. The security videotape constitutes "documentary" evidence, the respondent does not suggest that CAB review of this tape would have put any institutional safety or correctional goals at risk, and this court can discern no potential hazard to institutional safety or correctional goals. Accordingly, if Mr. Mayers made a timely request to have the conduct adjustment board consider this evidence, the court [**14] concludes that he was entitled to have the board either consider the videotape or state on the record why it would not review the tape.


Mayers v. Anderson, F. Supp. at , 2000 WL 381943 at page 2.

In this case, unlike Mayers v. Anderson, the respondent does not assert in his response to order that the petitioner did not ask for the videotape to be used as evidence prior to the CAB hearing. In his petition, Mr. Piggie states that he did request that "said tape be produced and examined at his hearing," and in his administrative appeal, he states that "upon being screened Piggie requested the videotape, but was denied! n2 The screening officer [*1010] stated that he wasn't allowed to, and that it had to be upon an [sic] court order!" The balance of the evidence before the court is that this petitioner asked for the videotape at the screening stage and at the hearing but, as in Mayers v. Anderson, was told that he could not make such a request.



n2 The official response to Mr. Piggie's administrative appeal suggested that "this issue was not raised during your screening nor at the time of your hearing." But, as this court noted in Mayers v. Anderson, "the screening report is filled out by the screening officer and the report of disciplinary hearing is filled out by the CAB chairman. The first document completed by the prisoner himself is the disciplinary hearing appeal form. Thus, if prison officials do not record a prisoner's request for evidence at the screening stage or at the hearing," which the court found to be the case in Mayers v. Anderson, "the first time it would appear in the written record is in the appeal form." Mayers v. Anderson, F. Supp. at , 2000 WL 381943 at page 2 n. 3.


[**15]

This court presumes that the ISP officials established a policy of videotaping events at the prison so that they could establish in retrospect what really happened during incidents in the cellhouses. Where facts have been in dispute in cases before this court, prison officials certainly have frequently attempted to establish their version of events as true by submitting videotapes in support of dispositive motions or presenting them at trial.

The videotape of the 500 west range of D Cell House at the ISP on May 7, 1999, may not have picked up the incident between the petitioner and Officer Ellis, or if it did pick up the incident it may not show clearly what happened, or if it did show what happened it might confirm Mr. Piggie's guilt. But it could also, as Mr. Piggie asserts, show that he did not touch Officer Ellis and therefore could not be guilty of sexual assault. Because the videotape that may have recorded the incident involving the petitioner and Officer Ellis was available when the hearing was held, and the petitioner apparently made a timely request for that evidence to be viewed by the CAB, the court concludes that he was entitled to have the board either consider the [**16] videotape or state on the record why it would not review the tape.

For the foregoing reasons, the court sua sponte substitutes Wabash Valley Correctional Facility Superintendent Craig Hanks as respondent in place of Indiana State Prison Superintendent Rondle Anderson, GRANTS the relief requested in the petitioner's petition for writ of habeas corpus, and sets aside the finding of guilt in case number ISP 99-05-0156. If the Indiana Department of Correction finds that the videotape of the 500 west range of D Cell House at the ISP on May 7, 1999, still exists, it may conduct a full and fresh CAB hearing at which the videotape and its contents are available to the petitioner and the CAB. If, as the materials before the court suggest, the prison has reused the security videotape, rendering it unavailable, the Indiana Department of Correction should reinstate the petitioner in the credit time earning classification from which he was demoted as a result of the hearing in ISP 99-05-0156, and restore the good time credits he lost as a result of being demoted from credit time earning classification II to credit time earning classification III.

IT IS SO ORDERED.

DATED: May 15, 2000 [**17]

s

ALLEN SHARP, JUDGE

UNITED STATES DISTRICT COURT