Elmore v. Superintendent

Filing 3

OPINION AND ORDER: The habeas corpus petition is DENIED. The clerk is DIRECTED to enter judgment and close this case. Kevin Elmore is DENIED leave to proceed in forma pauperis on appeal. Signed by Judge Joseph S Van Bokkelen on 4/18/2017. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEVIN ELMORE,
Petitioner,
v.

Case No. 3:16-cv-178 JVB

SUPERINTENDENT,
Respondent.
OPINION AND ORDER
Kevin Elmore, a pro se prisoner, filed a habeas corpus petition challenging the prison
disciplinary hearing (IYC 15-09-0220) where a disciplinary hearing officer (DHO) found him
guilty of Rioting, in violation of A-103. (ECF 1 at 1.) As a result, he was sanctioned with the loss
of 360 days earned credit time and was demoted from Credit Class 1 to Credit Class 3. Elmore
identifies two grounds in his petition.
In Ground One, Elmore argues that “the Conduct Report does not fit the charge of
Rioting, a Class A-103.” (ECF 1-1 at 3.) Elmore claims that there was not sufficient evidence to
find him guilty of A-103, and instead he should have been charged with B-212, Assault/Battery.
(ECF 1-1 at 2.) The imposition of prison discipline will be upheld so long as there is some
evidence to support the finding. Superintendent v. Hill, 472 U.S. 445, 455–56 (1985). “[T]he
relevant question is whether there is any evidence in the record that could support the conclusion
reached by the disciplinary board.” Id. “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) (quotation marks omitted).
[T]he findings of a prison disciplinary board [need only] 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 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. 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) (quotation marks, citations, parenthesis,
and ellipsis omitted).
Here, the DHO had sufficient evidence on which to find Elmore guilty of A-103. The
Indiana Department of Corrections (IDOC) defines the A-103 offense as follows:
Encouraging, directing, commanding, coercing or signaling one or more
other persons to participate in a disturbance to facility order caused by a
group of two (2) or more offenders which creates a risk of injury to persons
or property or participating in such a disturbance or remaining in a group
where some members of the group are participating in such a disturbance.
Adult Disciplinary Process, Appendix I. http://www.in.gov/idoc/files/02-04-101_APPENDIX_IOFFENSES_6-1-2015(1).pdf. The Conduct Report charges Elmore as being a participant in a
violent altercation that spanned the course of two hours. (ECF 1-1 at 6.) The Conduct Report
states that “several offenders were engaged in multiple assaults that included weapons to include
prison shanks, broom sticks, trash cans and chairs.” Id. The Conduct Report notes that “the level
of extreme violence” resulted in offenders with “broken bones, stab wounds, lacerations and
abrasions.” Id. The Conduct Report identifies Elmore as one of the “active participants” in the
altercation. Id. Furthermore, Elmore is captured on video hitting another inmate with closed fists
in the head and face. (ECF 1-1 at 9.) The evidence from the Conduct Report and video recording
were sufficient for the DHO to determine that Elmore was guilty of “participating” in “a

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disturbance to facility order caused by a group of two (2) or more offenders which creates a risk
of injury to persons or property” in violation of A-103.
Elmore also asserts that he should not have been found guilty because the offender he
punched “gave a written statement on behalf of petitioner stating that they were horse playing.”
(ECF 1-1 at 2.) However, it is not the province of this court to re-weigh the evidence considered
by the DHO. See Hill, 472 U.S. at 455. It was not arbitrary or unreasonable for the DHO to
decline to credit the statement by the assaulted offender. Ground One is therefore not a basis for
habeas corpus relief.
In Ground Two, Elmore argues that his demotion from Credit Class 1 to Credit Class 3
exceeded the maximum allowable sanction pursuant to IDOC policy. The harshness of the
punishment imposed is not a valid basis for challenging a DHO’s decision, so long as the
punishment is within the range designated for the offense. Cf. 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 …”). Here, IDOC policy states, “[o]ffenders found guilty of certain egregious
Class A offenses (Codes…103…) shall be subject to sanctions of up to a three (3)-step demotion
in Credit Class with justification by the Hearing Officer.” Disciplinary Code for Adult
Offenders. http://www.in.gov/idoc/files/02-04101_The_Disciplinary_Code_for_Adult_Offenders___6-1-2015.pdf. Elmore was found guilty of
A-103 and was sanctioned with a two-step demotion in Credit Class. The DHO sentenced
Elmore within the appropriate guidelines. Therefore Elmore is not entitled to habeas corpus relief
based on Ground Two.

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If Elmore wants to appeal this decision, 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 the
court finds pursuant to 28 U.S.C. § 1915(a)(3) that an appeal in this case could not be taken in
good faith.
For these reasons, the habeas corpus petition is DENIED. The clerk is DIRECTED to
enter judgment and close this case. Kevin Elmore is DENIED leave to proceed in forma pauperis
on appeal.
SO ORDERED on April 18, 2017.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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