Perosky v. Superintendent
Filing
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OPINION AND ORDER: The 4 Amended Habeas Corpus petition is GRANTED. Respondent to file documentation by 5/26/2016, showing that the guilty finding in WCC 14-10-1 has been vacated and Stephen T. Perosky's earned credit time restored. Signed by Senior Judge James T Moody on 4/14/2016. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
STEPHEN T. PEROSKY,
Petitioner,
v.
SUPERINTENDENT,
Respondent.
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No. 3:15 CV 105 JM
OPINION AND ORDER
Stephen T. Perosky, a prisoner proceeding pro se, filed a habeas corpus petition
challenging the prison disciplinary hearing (WCC 14-10-1) in which a Westville
Correctional Facility Disciplinary Hearing Officer (DHO) found him guilty of
possession of unauthorized personal information in violation of prison rule B-247 on
October 14, 2014. As a result, the DHO deprived Perosky of 30 days earned credit time.
Perosky raises three grounds in his petition, but since there is not sufficient evidence to
support having found him guilty, it is only necessary to address that ground.
The facts of this case are not in dispute. Perosky had his girlfriend’s social
security number. He wrote it on a note which he sent to another inmate in the law
library. (DE # 14-1; DE # 15-1 at 2.) He was charged with “possession/solicitation
unauthorized personal information.” (DE # 14-1.) He does not dispute that he had her
social security number and it is beyond question that a social security number is
personal information. The issue here is whether he was authorized to have it.
The hearing was originally scheduled to be held on October 8, 2014, but it was
postponed “for information/fax.” (DE # 14-5.) In the Disciplinary Hearing Report, the
DHO wrote that a “fax with notary” was physical evidence which was presented
during the hearing. (DE # 14-6.) The DHO also wrote that “fax with notary” was a basis
for the decision. Id. However, the Respondent did not provide a copy of that fax even
though ordered to provide “the complete administrative record.” (DE # 10.)
Nevertheless, Perosky did submit it and the Respondent has neither objected nor
disputed its authenticity. The fax is a notarized statement from Perosky’s girlfriend. She
writes: “To whom it may concern; I gave Stephen T. Perosky & Norman Clark
permission to use my social security number for files for Stephen’s Post Conviction . . .
We have dated for five years.” (DE # 16-1 at 2.) Despite this fax, the response Perosky’s
administrative appeal stated: “The conduct report is clear that you had possession of
unauthorized personal information. There is no documented evidence indicating you
had prior authorization.” (DE # 14-8 at 1.)
The Respondent argues:
[In Perosky’s] note to the library clerk he provided his girlfriend’s social
security number and then specifically asked him to pull her records and
court cases. [Citation omitted.] His request was not related to his case or
his post-conviction proceeding. This evidence supporting the decision was
sufficient to satisfy the “some evidence” standard to establish that his
possession of the personal information was unauthorized.
(DE # 14 at 7-8.) However, he was not charged with unauthorized use, he was charged
with unauthorized possession. Though a DHO is not required to believe every
undisputed statement submitted during a hearing,
the findings of a prison disciplinary board [must] have the support of
some evidence in the record. This is a lenient standard, requiring no more
than a modicum of evidence. Even meager proof will suffice, so long as
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the record is not so devoid of evidence that the findings of the disciplinary
board were without support or otherwise arbitrary. Although some
evidence is not much, it still must point to the accused’s guilt.
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (quotation marks, citations,
parentheses, and ellipsis omitted). A DHO can make reasonable inferences based on the
facts presented, but here, the Respondent has simply not pointed to any evidence in the
record from which it could be plausibly inferred that Perosky was not authorized to
have his girlfriend’s social security number.
In addition, to the extent that the Respondent might be arguing that using the
social security number to request his girlfriend’s court records is sufficient to sustain the
solicitation of personal information prong of the charge—but any such argument is
difficult to discern—court records are public, not personal, information. Moreover, the
conduct report against Perosky states that he was “not authorized to give personal
information,” (DE # 14-1 at 1), and giving information is the opposite of soliciting
information.
It is understandable why finding a social security number of another person in
an inmate’s possession would prompt an investigation. Based on the evidence of record
here, however, it is not understandable why the results of this investigation resulted in
Perosky having been found guilty of unauthorized possession.
For these reasons, the Amended Habeas Corpus petition (DE # 4) is GRANTED.
The Respondent is ORDERED to file documentation by May 26, 2016, showing that the
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guilty finding in WCC 14-10-1 has been vacated and Stephen T. Perosky’s earned credit
time restored.
SO ORDERED.
Date: April 14, 2016
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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