Oliver v. Superintendent

Filing 13

OPINION AND ORDER denying 2 Petition for Writ of Habeas Corpus. Signed by Judge Rudy Lozano on 2/24/2015. (rmc)

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

)
)
)
)
)
)
)
)
)

Petitioner,
vs.
SUPERINTENDENT,
Respondent.

NO. 3:14-CV-1750

OPINION AND ORDER
Kurtis Oliver, a pro se prisoner, filed a habeas corpus
petition challenging a prison disciplinary proceeding, on July 2,
2014. (DE 2.) For the reasons set forth below, the petition (DE 2)
is DENIED.

BACKGROUND
On

February

20,

2014,

a

hearing

officer

at

Westville

Correctional Facility found Oliver guilty of making or possessing
intoxicants under cause number WCC # 14-02-0111. The charge was
initiated when Sergeant Jones wrote a conduct report stating as
follows:
On February 4, 2014, while I (Sgt. L. Jones) was making
rounds, I did a shakedown on C1.
I found an orange
liquid substance in offender[] Kurtis Oliver[‘s] #166183
property wrapped up in a laundry bag.
Substance was
tested and pictures were tooken [sic].
(DE 11-1.)

On February 11, 2014, Oliver was formally notified of the
charge and given a copy of the conduct report. (DE 11-1, 11-2.) He
pled not guilty and requested a lay advocate. (DE 11-2.) He
requested a statement from Ofc. Horde, and video surveillance of
the

area

where

the

search

occurred

on

February

4,

2014

at

approximately 1:45 p.m. (DE 11-2.) Oliver was under the belief that
Ofc. Horde would testify that the substance did not belong him.
However, a witness statement was obtained from Ofc. Horde, who
provided, “[t]his is a false statement, it was found in his room.”
(DE 11-4.)
On February 20, 2014, a hearing was held on the charge. (DE
11-10.) Oliver submitted a statement describing his own version of
events, stating “Sgt. James did not find this in my room.
found it in room #9.” (DE 11-10.)

They

Notably, the DHB reviewed the

video from the time and location of the incident.

(DE 11-6.)

After reviewing the video, the conclusion was that, “Room #9 is in
view of the camera.

No staff entered or exited room 9 during the

times frame in question (1:40 pm to 1:55 pm).

The offender’s

allegation that the substance came out of room #9 is false!” (Id.)
Upon considering the conduct report, the witness statements, and
pictures of the substance and the alcohol test results, the hearing
officer found Oliver guilty. (DE 11-10.)

The hearing officer

imposed sanctions of a deprivation of 30 days of earned credit time
and a demotion from credit class 1 to credit class 2.

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(Id.) Oliver

filed administrative appeals, raising six issues relating to the
identification of the substance and the location where it was found
(DE 11-11.) His appeals were denied. (DE 11-12.)

DISCUSSION
When prisoners lose earned time credits in a disciplinary
proceeding, the Fourteenth Amendment Due Process Clause guarantees
them certain procedural protections: (1) advance written notice of
the charge; (2) an opportunity to be heard before an impartial
decision-maker; (3) an opportunity to call witnesses and present
documentary evidence 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). To satisfy due process,
there must also be “some evidence” in the record to support the
hearing officer’s determination. Superintendent, Mass. Corr. Inst.
v. Hill, 472 U.S. 445, 455 (1985).
Here, Oliver raises five arguments: (1) there is no reliable
evidence; (2) there was contradictory evidence; (3) there was no
evidence he possessed the bottle in question; (4) the alcohol test
may not have been from the bottle recovered; and (5) a witness
statement was not considered. Oliver’s petition is not a model of
clarity, but it is apparent that the first four of these arguments
challenge the sufficiency of the evidence.

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Oliver argues that the evidence presented to the hearing
officer was unreliable and insufficient.

Specifically, he argues

that there was no evidence that he possessed the bottle in question
and no evidence that the substance in the bottle was an intoxicant.
In reviewing a disciplinary determination for sufficiency of the
evidence, “courts are not required to conduct an examination of the
entire record, independently assess witness credibility, or weigh
the evidence, but only determine whether the prison disciplinary
board’s decision to revoke good time credits has some factual
basis.” McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999).
“[T]he relevant question is whether there is any evidence in the
record

that

could

support

the

conclusion

reached

by

the

disciplinary board.” Hill, 472 U.S. at 455-56 (emphasis added). The
court will overturn a guilty finding only if “no reasonable
adjudicator could have found [the prisoner] guilty of the offense
on the basis of the evidence presented.” Henderson v. United States
Parole Comm’n, 13 F.3d 1073, 1077 (7th Cir. 1994). Furthermore, a
hearing officer is permitted to rely on circumstantial evidence to
establish guilt. See Hamilton v. O’Leary, 976 F.2d 341, 345 (7th
Cir. 1992).
Upon review, there is sufficient evidence to support the
hearing officer’s determination that Oliver was guilty of making or
possessing intoxicants. To start, Sergeant Jones reported that he
found a bottle containing a liquid substance that was wrapped up in

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Oliver’s laundry bag. The substance was tested for intoxicants and
then Oliver was charged.

Sergeant Jones’ conduct report is “some

evidence” that Oliver possessed the bottle and also “some evidence”
that the bottle contained an intoxicant. McPherson v. McBride, 188
F.3d 784, 786 (7th Cir. 1999) (conduct report alone provided “some
evidence” to support disciplinary determination).
conduct

report

was

not

disciplinary hearing.

the

only

evidence

Moreover, the

submitted

at

the

Ofc. Horde’s statement, a picture of the

bottle containing the liquid, as well as a picture of the alcohol
sensor

displaying

a

positive

reading

for

alcohol,

were

all

presented.
The hearing officer was not required to credit Oliver’s
denials or prove his guilt beyond a reasonable doubt; the question
is

solely

whether

there

is

“some

evidence”

to

support

her

determination, and that standard is easily satisfied here. See
Hill, 472 U.S. at 457 (“Although the evidence in this case might be
characterized

as

meager,

and

there

was

no

direct

evidence

identifying any one of three inmates as the assailant, the record
is not so devoid of evidence that the findings of the disciplinary
board were without support or otherwise arbitrary.”); see also
Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002) (witness
statements constituted some evidence); McPherson, 188 F.3d at 786
(conduct report provided some evidence to support disciplinary
determination).

Here, there was both some evidence that Oliver

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possessed the bottle and that the substance in the bottle tested
positive for alcohol.
Oliver

complains

that

a

statement

he

submitted

while

administratively appealing this sanction was not considered. Oliver
apparently submitted a statement made by offender Jason Zent, which
set out that Zent lived in cell house C1-52-11, was present during
the search in question, and that the search produced no contraband.
(DE 2 at 2).

However, Oliver did not attempt to call Zent as a

witness or seek a written statement prior to the disciplinary
hearing. Instead, Oliver admits the statement “was presented at
time of appeal.”

(DE2 at 2.)

“The due process clause does not

require later consideration of evidence that could have but was not
presented during a prison disciplinary proceeding.”
McCaughtry,

6

Fed.

Appx.

371,

372-73

McPherson, 188 F.3d at 786-87).
Zent’s

statement

until

after

(7th

Cir.

Jones v.

2001)(citing

Because Oliver did not submit
the

disciplinary

hearing,

his

submission of additional evidence is irrelevant to the Court’s due
process inquiry.

Id.

Not only is there sufficient evidence to find Oliver guilty of
the charged offense, but there has been no showing that he was
deprived any due process along the way. Based on the record, there
is

sufficient

evidence

to

find

Oliver

guilty

of

making

or

possessing intoxicants, a Class B offense 231, and Oliver has not
made a showing that his due process rights have been violated.

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CONCLUSION
For the reasons set forth above, the petition (DE 2) is
DENIED.

DATED: February 24, 2015

/s/RUDY LOZANO, Judge
United States District Court

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