Lear v. Superintendent

Filing 14

OPINION AND ORDER DENYING 1 PETITION for Writ of Habeas Corpus filed by Petitioner Timothy Lear. Clerk DIRECTED to close this case. Signed by Judge Philip P Simon on 9/14/17. (Copy mailed to pro se party).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TIMOTHY LEAR,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:17CV149-PPS

OPINION AND ORDER
Timothy Lear, a pro se prisoner, filed a habeas corpus petition challenging the prison
disciplinary hearing (ISP 16-09-164) where a Disciplinary Hearing Officer (DHO) found
him guilty of using a controlled substance in violation of Indiana Department of Correction
(IDOC) policy B-202. ECF 1 at 1. As a result, he was sanctioned with the loss of 30 days
earned credit time and was demoted from Credit Class 1 to Credit Class 2.
Lear argues that the DHO did not have sufficient evidence to find him guilty. 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) (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).
An inmate violates IDOC B-202 by, “[p]ossession or use of any unauthorized
substance controlled pursuant to the laws of the State of Indiana or the United States Code
or possession of drug paraphernalia.” Adult Disciplinary Process, Appendix I: Offenses.
http://www.in.gov/idoc/files/02-04-101_APPENDIX_I-OFFENSES_6-1-2015(1).pdf.
Indiana State law prohibits possession of any synthetic drug. Ind. Code § 35-48-4-11.5. The
Conduct Report charged Lear as follows: “On 9/1/16, at approximately 12:40pm, while in
medical, Offender Lear admitted to Officer Parnell and nursing staff that he had just
smoked K2 (Synthetic marijuana).” ECF 8-1. Lear’s medical records note that Lear was
excessively drowsy, “slumping in [his] chair, being held up by custody and this writer
[Nurse Luther].” ECF 8-6 at 3. Nurse Luther also noted in the medical records that, “Patient
admits that he smoked K2 x 1 hour ago and that is all he has taken.” Id. The DHO
subsequently reached out to Officer Parnell, who confirmed that Lear admitted to having
smoked synthetic marijuana. ECF 8-5.

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The DHO had sufficient evidence to find Lear guilty of violating IDOC B-202. The
DHO had two first-hand accounts that Lear admitted to having smoked synthetic
marijuana. Furthermore, it would have been reasonable for the DHO to have been
persuaded of Lear’s guilt based on his physical state in the health care unit. The DHO’s
ultimate finding of guilt was not unreasonable or arbitrary in light of the two eyewitness
accounts and Lear’s medical records, and thus Lear is not entitled to habeas corpus relief
based on the sufficiency of the evidence.
Lear argues that he should not have been found guilty because two other witnesses,
Sergeant Ryne Robinson and Nurse Morganne Bush, stated that Lear had not told them
that he had smoked synthetic marijuana. It was the exclusive province of the DHO to
weigh the credibility of the evidence, McPherson, 188 F.3d at 786, and it would not have
been unreasonable for the DHO to afford this evidence little weight. Evidence that Lear did
not reiterate an admission he made to other witnesses does little to refute the evidence
against him.
Lear also argues that he was improperly denied access to his drug screen test results.
Inmates have a right to present relevant, exculpatory evidence in their defense. Miller v.
Duckworth, 963 F.2d 1002, 1005 (7th Cir. 1992). Exculpatory in this context means evidence
which “directly undermines the reliability of the evidence in the record pointing to [the
prisoner’s] guilt.” Meeks v. McBride, 81 F.3d 717, 721 (7th Cir. 1996). However, prisoners do
not have a due process right to the creation of evidence. “Prison officials must have the
necessary discretion to keep the hearing within reasonable limits.” Id.; see also Freitas v.
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Auger, 837 F.2d 806, 812 n.13 (8th Cir. 1988) (“Freitas was not entitled to a polygraph
examination . . ..”); Rhatigan v. Ward, 187 Fed. Appx. 889, 890-891 (10th Cir. 2006); and
Arthur v. Ayers, 43 Fed. Appx. 56, 57 (9th Cir. 2002) (inmates not entitled to laboratory
testing of substances). The DHO reported in the Report of Disciplinary Hearing that there
was “no drug test or admission of guilt done” and “no drug test, or admission of guilt
available.” ECF 8-8. The DHO could not review evidence that did not exist. Thus, Lear has
not identified a basis for habeas corpus relief.
For these reasons, the petition (ECF 1) is DENIED. The clerk is DIRECTED to close
this case.
SO ORDERED.
ENTERED: September 4, 2017.

/s/ Philip P. Simon
Judge
United States District Court

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