Cobbs v. Superintendent
Filing
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OPINION AND ORDER: GRANTING petition for habeas corpus. The Respondent is ORDERED to remove the finding of guilt from Petitioner's record and restore any earned credit time that he lost as a result of this disciplinary incident and to send proof that he has complied with this order by 11/1/11. ***Civil Case Terminated. Signed by Chief Judge Philip P Simon on 9/27/11. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANTHONY COBBS,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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CAUSE NO. 3:10-CV-304 PS
OPINION AND ORDER
At around 9:30 a.m., on April 2, 2010, guards at the New Castle Correctional Facility
found a cell phone hidden under Anthony Cobbs’ mattress. Cell phones are contraband in prison
and Cobbs was charged with possessing an unauthorized electronic device in violation of B-207.
Cobbs maintained that the phone was not his and asked that the Disciplinary Hearing Body
(DHB) review the videotape of his mattress starting at 9:00 a.m. that morning. He also submitted
the statement of another inmate who said that he saw “a few guys standing by his bed before I
left to go to school.” ECF 7-6 at 1. The DHB reviewed the video, but rather than starting at 9:00
a.m. to see if other inmates put the phone under his mattress, the hearing officer reviewed only
from 9:30 a.m. to the end of the search. The DHB then found Cobbs guilty in case number NCF
10-04-0025.
Cobbs exhausted his administrative appeals and then filed this habeas corpus petition. I
ordered the respondent to submit the complete administrative record and to show cause why
habeas relief should not be granted. The respondent filed a brief and submitted the administrative
record, which doesn’t include the videotape. Thus, I can only conclude that the videotape no
longer exists, because if it did it would have been produced as a part of the administrative record.
The caselaw on videotape evidence is relatively straightforward. Inmates have the right
to present relevant, exculpatory evidence within the limits of institutional safety and correctional
goals. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). Though the DHB may exclude irrelevant,
repetitive, or unnecessary evidence, it “may not arbitrarily refuse to consider exculpatory
evidence simply because other evidence in the record suggests guilt.” Whitford v. Boglino, 63
F.3d 527, 536 (7th Cir. 1995). Though due process does not require that an inmate always be
permitted to watch the videotape, it does require that the DHB review any relevant video
evidence that exists if requested at or before the hearing. Piggie v. McBride, 277 F.3d 922, 92526 (7th Cir. 2002).
Here, though the DHB watched a segment of the videotape, it was the wrong segment. In
his brief, the respondent argues that “the tape was reviewed at 9:30 A.M. because that was the
time of the search and the confiscation of the cell phone and batteries (Exhibits A, E, I, & K).”
ECF 7 at 6. Exhibit A is the conduct report; it says that the phone was found at approximately
9:30 a.m., but it says nothing about the review of the videotape. Exhibit E is the screening report
on which Cobbs requested that the tape be reviewed starting at 9:00 a.m.; it says nothing about
either the videotape review or the time of the incident. Exhibit I is the video review report; it
says that the time of the incident was 09:30, but it provides no explanation as to why the DHB
refused to examine the tape for the prior half hour. Exhibit K is the report of the disciplinary
hearing; it does not say when the incident occurred, nor why the DHB refused to examine the
tape for the prior half hour.1
1
Indeed, it makes no mention of a videotape, though the physical evidence reference to “S/R” may mean
surveillance report.
2
The respondent argues that Cobbs could have requested a continuance of his hearing so
that the prior half hour of the tape could be reviewed. The respondent also argues that Cobbs did
not otherwise complain during the hearing that the videotape was not properly reviewed. First,
because prison disciplinary hearings are not transcribed, I do not know exactly what was said
during the hearing.2 Second, though the video was reviewed before the hearing, based on this
record, it is unclear whether Cobbs knew what part of the videotape had been reviewed when he
was at the hearing. Finally, though an inmate is required to make a timely request for evidence,
the respondent has cited to no legal authority that requires an inmate to do more than that.
The respondent argues, “[l]astly, assuming arguendo that the video had been reviewed
thirty minutes earlier this would not have changed the fact that this cell phone and batteries were
found in a sock under the Petitioner’s ‘mattress at the head of the bed in a sock’ (Exhibit A).”
ECF 7 at 7. Though the respondent is correct,3 that is not a basis for refusing to consider other
evidence. “Prison disciplinary boards are entitled to resolve conflicts in the stories presented to
them, as long as some evidence supports the decision. But they are not entitled to prevent the
prisoner from offering material evidence.” Johnson v. Finnan, 467 F.3d 693, 695 (7th Cir. 2006)
(quotation marks and citation omitted).
Here, because Cobbs was prevented from presenting potentially exculpatory evidence
during his prison disciplinary hearing, I would review the requested segment of the video if that
2
The “Offender’s Comment” section on the Report of Disciplinary Hearing is merely a summary of what
an inmate said during the hearing. It is neither a direct quote (unless in quotation marks) nor a complete
documentation of what the inmate said during the hearing.
3
Indeed, even if the video had shown other inmates putting the phone under his mattress, the DHB could
have reasonably concluded that it was either being returned or loaned to Cobbs, rather than being planted on him.
Nevertheless, the fact that the DHB could have discounted the evidence after viewing it is not a basis for refusing to
view it without explanation.
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were still possible. See Felder v. McBride, 121 Fed. Appx. 655, 656-57 (7th Cir. 2004) (“[W]hen
a prisoner maintains that he was denied a meaningful opportunity to present a defense due to a
CAB’s refusal to consider exculpatory evidence, then procedural due process requires a district
court to conduct an in camera review of the evidence rejected by the CAB to determine whether,
in fact, the exculpatory information existed. Piggie v. Cotton (Piggie II), 344 F.3d 674, 678 (7th
Cir. 2003); Campbell v. Henman, 931 F.2d 1212, 1215 (7th Cir. 1991) (per curiam).”). Here,
because the video was not submitted as a part of the record, I have concluded that it no longer
exists. Therefore habeas corpus relief must be granted because Cobbs clearly made a timely
request for the tape. See Felder, 121 Fed. Appx. at 658 (“If the videotape is either exculpatory or
has been erased, and the court finds that Felder made a timely request for the CAB to view the
tape or was denied the opportunity to do so, then habeas corpus relief must be granted. See
[Piggie v. McBride, 277 F.3d 922, 926 (7th Cir. 2002)].”
For the foregoing reasons, the petition for habeas corpus is GRANTED. The Respondent
is ORDERED to remove the finding of guilt from Anthony Cobbs’ record, to restore any earned
credit time that he lost as a result of this disciplinary incident, and to send proof that he has
complied with this order on or before November 1, 2011.
SO ORDERED.
ENTERED: September 27, 2011
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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