Curtis Ellison v. Dushan Zatecky
Filing
Filed opinion of the court by Judge Williams. Ellison is entitled to a disciplinary hearing comporting with Wolff or else his good time must be restored. Accordingly, the district court s decision is VACATED, and the case is REMANDED for further proceedings. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Ann Claire Williams, Circuit Judge. [6744159-1] [6744159] [15-1884]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1884
CURTIS T. ELLISON,
Petitioner-Appellant,
v.
DUSHAN ZATECKY,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:12CV597 — James T. Moody, Judge.
____________________
SUBMITTED FEBRUARY 11, 2016 — DECIDED APRIL 19, 2016
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. A disciplinary officer found inmate 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 exhausting his administrative remedies, Ellison petitioned the district court for collateral review under 28 U.S.C. § 2254, and
he now appeals the denial of that petition. Because Ellison
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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 impending 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 mistakenly 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 himself 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
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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 Ellison had requested him by name at screening and he presumably could have addressed the discrepancy between Ellison’s cell number included in the conduct report and a different inmate’s cell number on the photo of the heroin. The
hearing officer refused to call Officer Dorethery because, Ellison was told, his request had not been made at screening
(this despite the fact that Ellison had been explicit at screening 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. Ellison 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, emphasized that the cell number written on the photo shows
that the heroin was found in a different inmate’s cell, and
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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 fairly, 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 requested both Dorethery’s testimony and the search log in
advance, and that the evidence he requested had been essential 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 evidence presented at his hearing, there is no indication that the
decision was arbitrary.” The conduct report, the court continued, provided some evidence on which to sustain the
finding of guilt.
As an initial matter, we agree with Ellison that the district 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 generally and the reliability of the particular proof used to establish that the substance was heroin. But Ellison’s detailed factual allegations confirm his pursuit of the claim that he was
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denied due process by the hearing officer’s refusal to allow
him to present evidence. The respondent (despite now contending 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 district 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 respondent’s opposition, Ellison confirmed that the respondent had
correctly understood him to be complaining about the restrictions on his presentation of evidence. That is our reading of the petition as well.
Indiana prisoners have a liberty interest in earned goodtime 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, 556, 566 (1974),
they must be allowed to present relevant evidence, including
witness testimony, unless it is cumulative or unduly threatens the security of the facility. See Piggie, 277 F.3d at 925;
Forbes v. Trigg, 976 F.2d 308, 315–19 (7th Cir. 1992); Miller v.
Duckworth, 963 F.2d 1002, 1004–05 (7th Cir. 1992). Moreover,
a hearing officer cannot refuse to consider an inmate’s evidence simply because other evidence supports a finding of
guilt.
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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 evidence” logically supporting it and demonstrating that the
result is not arbitrary. See Superintendent, Mass. Corr. Inst. v.
Hill, 472 U.S. 445, 454 (1985); Webb v. Anderson, 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 disciplinary charge, his claim is properly understood as “one of
procedural due process rather than sufficiency of the evidence.” Viens v. McDaniel, 871 F.2d 1328, 1336 n.2 (7th Cir.
1989).
Ellison was entitled to present evidence refuting Officer 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 exercise that right is particularly troubling. See Pannell v.
McBride, 306 F.3d 499, 503 (7th Cir. 2002); Meeks v. McBride,
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 Ellison’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; testimony 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 at 720.
The hearing officer’s treatment of the video is equally
problematic: Her cursory statement that the video shows
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an officer entering Ellison’s cell misses the point, because unless 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 Ellison’s version of events—we conclude that Ellison was denied due process.
Because remand is necessary to correct these errors, we
need not address Ellison’s final challenge regarding the reliability 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 substance “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 chemical 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 substance was actually tested.
Ellison is entitled to a disciplinary hearing comporting
with Wolff or else his good time must be restored. Accordingly, the district court’s decision is VACATED, and the case
is REMANDED for further proceedings.
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