Pierce v. Superintendent

Filing 14

OPINION AND ORDER: The Court DENIES 1 Petition for Writ of Habeas Corpus. The clerk is DIRECTED to close this case. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 01/25/2017. (cc: Pierce)(nae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RONALD J. PIERCE,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:16-CV-032

OPINION AND ORDER
This matter is before the Court on a Petition under 28 U.S.C.
Paragraph 2254 for Writ of Habeas Corpus by a person in State
Custody Seeking Review of a Prison Disciplinary Sanction, filed by
Ronald J. Pierce, a pro se prisoner, on January 22, 2016. Here,
Pierce challenges a disciplinary determination made by a hearing
officer at Indiana State Prison (“ISP”) under case number ISP 1505-0203. For the reasons set forth below, the Court DENIES the
petition (DE #1). The Clerk is DIRECTED to close this case.

BACKGROUND
On May 26, 2015, Correctional Officer R. Westman prepared a
conduct report charging Pierce with possession of a cellular
device. (DE #6-1 at 1.) The conduct report stated:
On 5/26/15 at approximately 7:55 am Ofc Zimmerman and
myself Ofc Westman conducted a shakedown of Offender
Pierce DOC #903145 cell C325. During the shakedown I
found a box that was painted black to match the back of
the cell door. Inside the box I found an LG cell phone
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and charger. The item was confiscated, photographed and
sent to IA. Also confiscated was the part of the cell
phone charger that plugs into the wall it was be[ing]
used to power a hand held video game. It was LG also the
same brand as the phone.
(Id.) Photos were taken of the phone and charger and the items were
confiscated.(DE

#6-1

at

2,

3.)

Officer

Zimmerman

provided

a

statement:
On 5/26/15 I Ofc. Zimmerman witnessed Ofc. Westman pull
a small black card board box from the inside of offender
Pierce #903145 W 325 CCH door at approximately 6:55 AM.
It was located on the back side of the locking device of
the door. Within the box was a cell phone and a charger.
(DE #6-1 at 4.)
On June 1, 2015, Pierce was notified of the charge and served
with a copy of the conduct report and the screening report. (DE #62 at 1.) The screening report reflects that he pled not guilty,
requested a lay advocate, and requested to call Offenders Rogers
and Sharp as witnesses. He also asked for the reason for the
search, a photo of where the phone was found, and video footage as
physical evidence. (Id.) A witness statement was obtained from
Offender Rogers (DE #6-2 at 4) and video footage was reviewed and
a summary of its contents was prepared (DE #6-2 at 5).
On June 3, 2015, a hearing officer conducted a disciplinary
hearing and found Pierce guilty of the charge of possessing a cell
phone. (DE #6-3 at 1.) Relying on staff reports, photos, camera
footage, evidence slip and confiscation slip, the hearing officer
imposed a penalty of 60 days lost earned time credits and demoted

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him from credit class 1 to credit class 2. (Id.) Pierce appealed to
the facility head and the final reviewing authority, but his
appeals were denied. (DE ##6-4; 6-5.)

DISCUSSION
When

prisoners

lose

earned

time

credits

in

a prison

disciplinary hearing, they are entitled to certain protections
under the Due Process Clause: (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
documentary evidence in defense when consistent with institutional
safety and correctional goals; and (4) a written statement by a
fact

finder

of

evidence

relied

on

and

the

reasons

for

the

disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 563 (1974).
To satisfy due process, there must also be “some evidence” to
support the hearing officer’s decision. Superintendent, Mass. Corr.
Inst. v. Hill, 472 U.S. 445, 455 (1985).
Here, Pierce raises three claims in his petition: (1) he was
denied evidence; (2) there was insufficient evidence to support the
conviction; and (3) he was denied an impartial hearing officer.
First, Pierce argues that he was denied a photograph showing
the location where the cell phone and charger was found, and that
he was denied a conduct report written in a case involving offender
Rogers. An inmate has a right to present relevant, exculpatory

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evidence. Wolff, 418 U.S. at 566. At the disciplinary hearing,
Pierce’s request for a photo of where the contraband was found was
denied because one was not taken. (DE #6-2 at 4; DE #6-3 at 1.)
Because the evidence was not in existence, Pierce was not entitled
to that evidence. Freitas v. Auger, 837 F.2d 806, 812 n. 13 (8th
Cir. 1988); Hester v. McBride, 966 F.Supp. 765, 773 (N.D. Ind.
1997). Furthermore, Pierce does not claim how a photo, if it
existed, would have aided his defense.
At the hearing, Pierce was also denied the opportunity to
review

offender

Rogers’

file.1

(DE

#6-3

at

1.)

A

prison

disciplinary committee may deny witness or evidence requests that
threaten institutional goals or are irrelevant, repetitive, or
unnecessary. Piggie v. Cotton, 342 F.3d 660, 678 (7th Cir. 2003).
The hearing officer denied Pierce’s request to review offender
Rogers’ file because he found it was irrelevant to the charges in
this case. Pierce claims that offender Rogers’ conduct report is
relevant because the item Rogers was charged with possessing was
found in a common area and, therefore, the charge was dismissed.
However, whether another offender’s disciplinary case has been
dismissed is irrelevant here. Thus, the hearing officer properly
denied

Pierce’s

request

to

review

1

Offender

Rogers’

file.

A witness statement from offender Rogers gave permission for Pierce to
review his file he claims contains a conduct report where he was charged with
possession of a knife, but the case was dismissed because the knife was found
in a common area. (DE #6-2 at 3, 4.)

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Furthermore, a hearing officer’s improper exclusion of evidence
will be deemed harmless unless there is some indication from the
record

that

the

evidence

“might

have

aided

[the

prisoner’s]

defense.” Id. at 666. This is not the case here. Thus, Pierce’s due
process rights could not have been violated with respect to this
evidence.
Second, Pierce claims there was insufficient evidence to find
him guilty of possessing a cellular telephone. 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.”

Superintendent v. Hill, 472 U.S. 445, 455-56 (1985). The court will
overturn the hearing officer’s decision 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).
Here, it is clear that the record in this case contains at
least

“some

evidence”

to

support

the

hearing

officer’s

determination. The conduct report alone is some evidence that

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Pierce possessed a cellular telephone. McPherson, 188 F.3d at 786
(7th Cir. 1999) (conduct report alone provided some evidence to
support disciplinary determination). Further, the court viewed the
video, which shows Pierce being led out of his cell, and Officer
Westman searching the inside of Pierce’s cell, where he seems to
find and put something in his pocket. (DE #8.)
Nevertheless, Pierce claims that the evidence was insufficient
to find him guilty of possession because the area where the phone
and charger was found was accessible to other people. However, 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). Furthermore, the record need not contain evidence of
actual possession of contraband, as long as there is sufficient
evidence of constructive possession. Id. at 345-46. There is
sufficient evidence of constructive possession in this case, since
the contraband was found in his cell rather than in a common area.
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.”); Hamilton, 976
F.2d at 345-46 (evidence of constructive possession was sufficient,
since contraband was found in a location where only the petitioner
and three other inmates could have left it); see also Pigg v.

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Finnan, 289 Fed. Appx. 945, 947 (7th Cir. Aug. 18, 2008) (“When
only a few inmates have access to the place contraband is found,
constructive possession is ‘some evidence’ sufficient to sustain a
disciplinary conviction.”).
Third, Pierce complains that he was denied an impartial
hearing officer.

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, 342
F.3d at 666. 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, Pierce believes that the hearing officer was generally
biased, but there is no indication that he was involved in any way
in the events underlying the charge. He appears to believe the
hearing officer was impartial because the officer made adverse
rulings against him. But adverse rulings alone do not establish
impermissible bias. Liteky v. United States, 510 U.S. 540, 555–56
(1994). Pierce complains that the hearing officer found him guilty
without sufficient evidence, and denied him the requested evidence.
However, none of these things warrant habeas relief.

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CONCLUSION
For the reasons set forth above, the Court DENIES the petition
(DE #1). The Clerk is DIRECTED to close this case.

DATED: January 25, 2017

/s/ RUDY LOZANO, Judge
United States District Court

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