Topp v. Superintendent
OPINION AND ORDER DENYING the habeas corpus petition; The Clerk is directed to close this case; Petitioner is DENIED leave to proceed in forma pauperis on appeal, ***Civil Case Terminated. Signed by Judge Philip P Simon on 10/10/17. (Copy mailed to pro se party)(mlc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CAUSE NO. 3:17-CV-344-PPS-MGG
OPINION AND ORDER
Brad Topp, a prisoner without a lawyer, filed a habeas corpus petition
challenging a disciplinary hearing where a Disciplinary Hearing Officer found him
guilty of possession or use of a controlled substance in violation of Indiana Department
of Correction Policy B-202. As a result, he was docked 90 days earned credit time and
was demoted from Credit Class 1 to Credit Class 2.
Topp argues that he is entitled to habeas corpus relief because there was
insufficient 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
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (quotation marks, citations,
parenthesis, and ellipsis omitted).
IDOC B-202 prohibits the “[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.
The Conduct Report charged Topp as follows:
On 8-4-16 I Sgt Dice was assigned to GHU. Approximately 7:30 am I was
called to cell 219/220. When I arrived Offender Topp, Brad 129104 G-219 was
laying on his bunk screaming in pain. When I enquired (sic) what was wrong
Offender Topp stated that he had a migraine. I called medical and informed
them of the issue but advised them that Offender Topp’s behavior was not
what I know to be normal for a migraine. Once I described the bahavior the
nurse agreed but said she would see him. While I was on the phone I saw
Offender Topp vomit in his toilet. I went back to his cell and offender Topp
had returned to laying on the bottom bunk but had not flushed the vomit. I
did a visual inspection of the vomit and could see what appeared to be a
white chalky residue mixed in the vomit. At this time I began an area search
of the cell looking for clues as to the ingestion of a narcotic. While looking at
Offender Topp’s property on the shelving unit I noticed the back of a Bic pen
laying on the bottom shelf. I picked it up and inspected it. I then started a
search for an altered Bic pen as I know this is an item offenders use to ingest
narcotics up their nose. I located in the same area a clear in color Bic pen that
appeared to have the ink cartridge partially inserted in it. Upon picking up
the pen I could notice a hazy tint to the color of the pen. I examined the pen
closer by removing the ink cartridge and looking inside. Inside the pen is a
white powdery residue. The pen appears to have been used to “snort” a
powder form of intoxicant. When I confronted Offender Topp he became
angry and began yelling at me. This is not normal behavior for someone who
claims to have a migraine. Offender Topp was sent to phase 2 OSB for
medical treatment. I was informed by LPN L. Lees that Offender Topp did
show signs of ingesting a narcotic. A cell search was conducted but no
further narcotics were located. A coax cable was found under Offender
Topp’s mattress located by his pillow area. The coax cable was folded and
tied in a manner that I believe was intended to be used as a weapon.
Offender Topp was moved to the infirmary for observation.
There was sufficient evidence to find Topp guilty. A Conduct Report alone can be
sufficient evidence to support a finding of guilt. McPherson, 188 F.3d at 786. Here, the
hearing officer relied on the Conduct Report, photographs of the pen, and Topp’s
statement at the hearing in determining that Topp was guilty. In light of the evidence of
Topp’s behavior, the items discovered in his cell, and the officer’s description of the
white chalky substance in the toilet, the hearing officer’s finding of guilt was not
arbitrary or unreasonable.
Topp suggests that there was insufficient evidence to find him guilty because the
pen was not tested for intoxicants. Yet, the hearing officer did not need to have the
substance tested to have sufficient evidence that Topp used a substance controlled by
State or federal law;1 the evidence contained in the Conduct Report satisfies this
standard. Thus, Topp is not entitled to habeas corpus relief.
If Topp 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 pursuant to 28 U.S.C. § 1915(a)(3) an appeal in this case
could not be taken in good faith.
For these reasons, the court DENIES the habeas corpus petition (ECF 1). The
Clerk is DIRECTED to close this case. Petitioner is DENIED leave to proceed in forma
pauperis on appeal.
ENTERED: October 10, 2017.
_/s Philip P. Simon_______
United States District Court
Synthetic controlled substances, or look-a-like substances, are also classified as
controlled substances pursuant to Indiana law. See Ind. Code 35-31.5-2-321, 321.5.
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