Black v. Werlich

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 12/5/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GEORGE J. BLACK,
No. 12653-027,
Petitioner,
vs.

Case No. 16-cv-921-DRH

T.J. WERLICH,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the FCI-Greenville, Illinois, brings this
habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the execution of
his sentence. Specifically, he seeks restoration of 41 days of good conduct credit
which was revoked when he was found guilty of a disciplinary infraction on
November 17, 2015 (Doc. 1, p. 2).
According to petitioner, on October 12, 2015, he was placed into an “eight
man tank” with seven other inmates (Doc. 1, p. 3). He did not know any of the
cellmates prior to that date. On October 15, 2015, at 7:15 p.m., a random search
of the cell was conducted.

As a result, two “one-hitter” marijuana pipes were

found inside a toilet paper roll, which had been placed inside a yellow laundry bag
hanging on the wall of the cell’s bathroom.
Petitioner and the other seven prisoners were escorted to the Special
Housing Unit (SHU), where each one was interviewed and underwent a urinalysis.

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Only one cellmate (A. Collins) tested positive for drugs (Doc. 1, p. 2). Collins then
admitted that he was the owner of the pipes, and took responsibility for the
conduct violation. Collins was placed in segregation. Petitioner and the other six
cellmates all tested negative, and they were released back to their housing unit.
Notwithstanding

these

developments,

petitioner

was

charged

with

possession of drugs or related paraphernalia, and appeared at a disciplinary
hearing on November 17, 2015.

Evidence was presented regarding the

contraband found in the cell, the urinalysis results, and the confession of inmate
Collins. Petitioner chose to remain silent and presented no defense. Despite the
evidence of Collins’ guilt, the hearing officer found petitioner guilty, stating: “[Y]ou
would have made a statement and presented a defense against the charges
throughout the entire discipline process to include during the UDC hearing” (Doc.
1, p. 2). Petitioner maintains that his choice to remain silent was not a statement
of guilt, and his silence was the only evidence against him.
The Court recognizes that it is permissible to draw adverse inferences from
a prisoner’s silence in a prison disciplinary proceeding, particularly when faced
with probative evidence of guilt. See Lenea v. Lane, 882 F.2d 1171, 1174 (7th
Cir. 1989) (citing Baxter v. Palmigiano, 425 U.S. 308, 319, (1976)). However, the
hearing officer’s apparent reliance on petitioner’s choice to remain silent, coupled
with cellmate Collins’ confession of guilt, and the lack of direct evidence of
petitioner’s knowledge or actual possession of the contraband, presents a due
process challenge to the sufficiency of the evidence that precludes dismissal of the

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petition at this time. See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,
454 (1985) (revocation of good conduct credits must be supported by “some
evidence” in order to satisfy due process concerns); see also Austin v. Pazera, 779
F.3d 437 (7th Cir. 2015) (“some evidence” standard was not met where
contraband was found in workspace where four other inmates had access).
Without commenting on the merits of petitioner’s claims, the Court
concludes that the petition survives preliminary review under Rule 4 and Rule
1(b) 1 of the Rules Governing Section 2254 Cases in United States District Courts.
IT IS HEREBY ORDERED that respondent shall answer or otherwise
plead within thirty days of the date this order is entered (on or before January 4,
2017). 2

This preliminary order to respond does not, of course, preclude the

Government from raising any objection or defense it may wish to present. Service
upon the United States Attorney for the Southern District of Illinois, 750 Missouri
Avenue, East St. Louis, Illinois, shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud for disposition, as contemplated by Local

1

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other
habeas corpus cases.

The response date ordered herein is controlling. Any date that CM/ECF should
generate in the course of this litigation is a guideline only. See SDIL-EFR 3.
2

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Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a

referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven (7) days after a transfer or other change in address occurs. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).

Digitally signed by
Judge David R.
Herndon
Date: 2016.12.05
10:38:06 -06'00'

IT IS SO ORDERED.
Dated: December 5, 2016

United States District Judge

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