Dent v. Superintendent

Filing 12

OPINION AND ORDER denying relief 11 and denying the petition for writ of habeas corpus. Signed by Senior Judge James T Moody on 3/13/2012. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHARLES E. DENT,

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Petitioner,
v.
SUPERINTENDENT,
Indiana State Prison,
Respondent.

No. 3:11 CV 287

OPINION and ORDER
Charles Dent, a prisoner confined at the Indiana State Prison (“ISP”), submitted a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 dealing with loss of earned
credit time in a prison disciplinary hearing. On May 12, 2011, Correctional Officers
E. Trute and R. Wilgus went to Dent’s cell to conduct a shakedown. Before the officers
could get into Dent’s cell, they saw him start to pour two gallons of what appeared to be
intoxicants down his sink. According to the conduct report, they ordered Dent to stop,
but “he refused and continued to despose (sic) of the intoxicants.” (DE # 10-1.)
Based on his observations, Officer Trute wrote a conduct report against Dent for
possessing intoxicants. (DE #10-1.) On May 31, 2011, a disciplinary hearing officer
found Dent guilty and imposed a loss of thirty days of earned credit time. Dent
appealed unsuccessfully to the ISP Superintendent and the Indiana Department of
Correction’s final reviewing authority.
The Respondent has filed a response to the order to show cause and has
submitted the administrative record of the proceedings against Dent. Dent has not filed

a traverse, but did file a notice to the court asserting that the Respondent’s response to
order was not timely filed, and asking the Court to grant his request for relief for that
reason. (DE # 11.) The Court ordered the Respondent to file his response by January 28,
2012. (DE # 6). Because January 28 fell on a Saturday, the response was actually due on
the following Monday, January 30, 2012, and the Respondent filed his response to order
and the administrative record on that date. Accordingly, the response was timely filed.
Where prisoners lose good time credits at prison disciplinary hearings, the
Fourteenth Amendment’s Due Process Clause guarantees them certain procedural
protections, including (1) advance written notice of the charges; (2) an opportunity to be
heard before an impartial decision maker; (3) an opportunity to call witnesses and
present exculpatory evidence in defense when consistent with institutional safety and
correctional goals; and (4) a written statement by the fact finder of evidence relied on
and the reasons for the disciplinary action. Wolff v. McDonnell, 418 U.S. 539 (1974).
Dent states that he “requested a field test for the liquid that was leftover in the
bag and none was given.” (DE # 1 at 3.) He asserts that he was denied the opportunity
to present evidence because the liquid described in the conduct report was not tested to
determine if it was an intoxicant. A reasonable opportunity to call witnesses and
present exculpatory evidence is one of the due process rights guaranteed to prisoners
by Wolff v. McDonnell.
In his response to order, the Respondent states that no field test was conducted,
so there were no results to give to Dent or the hearing officer. The Respondent also
notes that Dent poured the intoxicants “down the drain and refused to stop doing so
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when ordered to by the officers performing the shakedown of his cell.” (DE # 10-8.) The
hearing officer stated in the report of disciplinary hearing that “[b]ecause the liquid was
disposed of by the offender there was not a test done on it.” (DE # 10-8.)
Dent denies that he disposed of the liquid. (DE # 1 at 4.) In the alternative, he
suggests that even after most of the liquid was poured down the sink there may have
been a small residue left that could have been tested. (DE # 1 at 3-4.) Federal courts do
not, however, second guess a disciplinary hearing board’s factual findings or reweigh
the evidence. Superintendent, Mass. Correctional Institution v. Hill, 472 U.S. 445, 455-56
(1985). Accordingly, this court must accept as a fact that there was no evidence left to
test after Dent poured the contents of the bag down his sink. Therefore, the ISP officials’
inability to provide Dent with test results did not violate his due process rights.
Dent also asserts that without a test result showing the liquid in his cell was an
intoxicant, there was insufficient evidence to find him guilty of possessing intoxicants.
The Respondent argues that Officer Trute’s statement and the bag confiscated from
Dent after he disposed of its contents were sufficient to support a finding of guilt.
The amount of evidence needed to support a finding of guilt in prison
disciplinary hearings is very modest; there need only be “some evidence” to support the
decision of the prison disciplinary board.” Hill, 472 U.S. at 455. A reviewing court must
uphold a finding of guilt if “there is any evidence in the record that could support the
conclusion reached” by the disciplinary hearing board. Id. at 455-56. In the appropriate

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circumstances, the conduct report alone may be sufficient evidence to support a finding
of guilt. See McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999).
The reporting officer stated that he observed Dent disposing of liquid that
appeared to be an intoxicant by pouring it down the sink in his cell, and the hearing
officer credited this testimony, relying on it to find Dent guilty. (DE # 10-8.) Dent denies
that he disposed of the liquid evidence, but the hearing officer believed the reporting
officer rather than Dent. Federal courts do not second guess determinations of
credibility by conducting an independent assessment of witness credibility or
reweighing the evidence. Hill, 472 U.S. at 455-56. The reporting officer’s statement that
he observed Dent pouring liquid down the drain and his identification of the liquid as
an intoxicant constitutes “some evidence” to support the decision of the prison
disciplinary board.” Id.
For the foregoing reasons, the court DENIES Dent’s request that it grant his
requested relief because the Respondent did not file a timely response to order (DE #
11), and DENIES this petition for writ of habeas corpus. (DE # 1.)
SO ORDERED.
Date: March 13, 2012
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT