Merritt v. Superintendent

Filing 27

OPINION AND ORDER: The petition 1 is DENIED. The Clerk is DIRECTED to close this case. Petitioner is DENIED leave to proceed in forma pauperis on appeal. Signed by Judge Philip P Simon on 5/17/2017. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
OMAR S. MERRITT,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:15-CV-414-PPS

OPINION AND ORDER
Omar S. Merritt, a pro se prisoner, filed a habeas corpus petition challenging the
prison disciplinary hearing (ISF 14-11-79) where a Disciplinary Hearing Officer (DHO)
found him guilty of Disorderly Conduct in violation of Indiana Department of
Correction (IDOC) policy B-236. [DE 19-6 at 1.] As a result, Merritt was sanctioned with
the loss of 90 days earned credit time. [Id.] While Merritt identifies in his petition only
two grounds on which he challenges the hearing, his arguments raise three issues.
Merritt first argues that he was denied access to an impartial hearing officer.
According to Merritt, “the hearing officer just had one mind going into this hearing.”
[DE 1 at 2.] Merritt admits that he has a “history with the disciplinary body” and claims
that because of this history, he is always sanctioned with the maximum penalty for any
disciplinary infraction. [Id.] Yet, Merritt’s discipline in this case dispels this claim. Here,
Merritt did not receive the maximum penalty. The DHO could have demoted him to a
lower credit class, but declined to do so. See The Disciplinary Code for Adult Offenders

at 38,
http://www.in.gov/idoc/files/02-04-101_The_Disciplinary_Code_for_Adult_Offenders
___6-1-2015.pdf.
In the prison disciplinary context, adjudicators are “entitled to a presumption of
honesty and integrity,” and “the constitutional standard for improper bias is high.”
Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003). Due process prohibits a prison official
who was personally and substantially involved in the underlying incident from acting as
a decision-maker in the case. Id. However, due process is not violated simply because
the hearing officer knew the inmate, presided over a prior disciplinary case, or had some
limited involvement in the event underlying the charge. Id. Here, even if the DHO had
presided over one of his previous disciplinary hearings, this alone is not sufficient to
prove bias.
Merritt also argues that the sanction he received was too harsh. [DE 1 at 2.] He
argues that he was “over charge[d]” and that his actions were more appropriate to a
lesser offense. [Id.] However, harshness is not a valid basis for challenging a
punishment that is within the range of the offense for which the inmate was found
guilty. See United States ex rel. Long v. Pate, 418 F.2d 1028, 1031 (7th Cir. 1970) (where a
sentence is “within the range established by the legislature . . . this court will not [on
habeas corpus review] question the trial judge’s discretion in imposing sentence, nor will
it question the refusal of the Illinois Supreme Court to reconsider appellant’s petition for
reduction of sentence”). Here, the maximum sanction for the violation of a Class B
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offense is three months. Disciplinary Code for Adult Offenders at 38,
http://www.in.gov/idoc/files/02-04-101_The_Disciplinary_Code_for_Adult_Offenders
___6-1-2015.pdf. Merritt’s sanction was within this range. Therefore, the harshness of
his sanction is not a ground for habeas corpus relief.
Finally, Merritt challenges the sufficiency of the evidence used to find him guilty.
He claims that he should not have been found guilty of violating IDOC B-236 because he
did not make a threat or commit a violent act. [DE 1 at 2.] Respondent contends that
there was sufficient evidence to find Merritt guilty because he admitted to throwing food
out of his cell because he was upset about the type of meal he received. [DE 19 at 5.]
Respondent contends that this admission, with video evidence of the food strewn
outside the cell, was sufficient evidence on which to find Merritt guilty. [Id. at 6.] I
agree.
In the disciplinary context, “the relevant question is whether there is any evidence
in the record that could support the conclusion reached by the disciplinary board.”
Superintendent v. Hill, 472 U.S. 445, 455-56 (1985). “In reviewing a decision for some
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) (internal quotation
marks omitted).
[T]he findings of a prison disciplinary board [need only] have
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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 the record is not so devoid
of evidence that the findings of the disciplinary board were
without support or otherwise arbitrary. It is not our province
to assess the comparative weight of the evidence underlying the
disciplinary board’s decision.
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (internal quotation marks and citations
omitted). A Conduct Report alone can be sufficient evidence to support a finding of
guilt. McPherson, 188 F.3d at 786.
The DHO had sufficient evidence to find Merritt guilty of violating IDOC B-236.
The IDOC defines the offense as, “[d]isorderly conduct: exhibiting disruptive and violent
conduct which disrupts the security of the facility or other area in which the offender is
located.” Adult Disciplinary Process, Appendix I: Offenses at 7,
http://www.in.gov/idoc/files/02-04-101_APPENDIX_I-OFFENSES_6-1-2015(1).pdf.
Merritt admits that he threw the food out of his cell. However, he argues that he was not
violent or threatening and therefore should not have been found guilty of this offense.
[DE 1 at 2.] The IDOC does not define the term “violent.” However, Black’s Law
Dictionary defines the term as: “1. Of, relating to, or characterized by strong physical
force <violent blows to the legs>. 2. Resulting from extreme or intense force <violent
death>. 3. Vehemently or passionately threatening <violent words>.” Black’s Law
Dictionary (10th ed. 2014). The DHO used discretion to find that Merritt’s throwing food
out of his cell constituted a violent and disruptive act. This determination was not
arbitrary or unreasonable. Moreover, it is not the province of this court to re-weigh the
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evidence. There was “some evidence” that Merritt violated IDOC B-236; therefore, he is
not entitled to habeas corpus relief.
If Merritt wants to appeal this order, he does not need a certificate of appealability
because he is challenging a prison disciplinary proceeding. See Evans v. Circuit Court, 569
F.3d 665, 666 (7th Cir. 2009). However, he may not proceed in forma pauperis on appeal
because, pursuant to 28 U.S.C. § 1915(a)(3), an appeal in this case could not be taken in
good faith.
For the reasons set forth above, the petition [DE 1] is DENIED. The Clerk is
DIRECTED to close this case. Petitioner is DENIED leave to proceed in forma pauperis
on appeal.
SO ORDERED.
ENTERED: May 17, 2017.

_s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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