Bryant v. Warden

Filing 21

OPINION AND ORDER: Court GRANTS 13 Motion to Dismiss and Elmer Bryant's 2 petition is DISMISSED WITH PREJUDICE. Bryant's 11 Motion to suppress, 16 Motion to Appoint Counsel, and 17 Motion for the court to request the video footage of the incident are DENIED AS MOOT. The Clerk is DIRECTED to close the case. Signed by Judge Philip P Simon on 2/6/2019. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ELMER BRYANT,
Petitioner,
v.
WARDEN,
Respondent.

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CAUSE NO. 3:17CV880-PPS/MGG

OPINION AND ORDER
Elmer Bryant, a prisoner without a lawyer, filed this habeas corpus petition
attempting to challenge the prison disciplinary hearing in case IYC 16-11-100 held at the
Plainfield Correctional Facility on December 5, 2016, where he was found guilty of
assaulting and battering a correctional officer in violation of Indiana Department of
Correction (IDOC) policy A-117. ECF 2 at 1, 2-1 at 2. As a result, he was sanctioned
with the loss of 57 days earned credit time. Id. The Warden has moved to dismiss the
petition arguing that Bryant has not exhausted his administrative remedies. ECF 13, 14.
Bryant has responded to the motion. ECF 15, 18. Thus the motion is fully briefed.
Principles of exhaustion that apply to federal review of criminal convictions also
apply to review of prison disciplinary proceedings. Eads v. Hanks, 280 F.3d 728, 729 (7th
Cir. 2002); Markham v. Clark, 978 F.2d 993, 994-95 (7th Cir. 1992). Before seeking federal
habeas relief, a prisoner must take all administrative appeals, and must raise in those
appeals any issue on which he seeks federal review. Eads, 280 F.3d at 729. In other

words, exhaustion requires that a prisoner present each claim he seeks to raise in his
habeas petition at each level of the prison disciplinary process. Moffat v. Broyles, 288
F.3d 978, 981-82 (7th Cir. 2002).
The Indiana Department of Correction has established a two-step administrative
appeals process. The Disciplinary Code for Adult Offenders, Policy & Administrative
Procedure No. 02-04-101, §§ X(A)-(D) (effective June 1, 2015). See https://www.in.gov/
idoc/files/02-04-101_The_Disciplinary_Code_for_Adult_Offenders_6-1-2015.pdf. As to
the first step, an offender is required to file a facility-level appeal within 15 days of the
date of the disciplinary hearing or receipt of the disciplinary hearing report. Id. If the
facility head denies the first appeal, the offender must then file a second-level
appeal—within 15 days of the facility-level response—with the final reviewing
authority. Id. In the second-level appeal, the offender may only assert those claims that
were raised in the first-level appeal. Id.
In his petition, Bryant presents one ground which he claims entitles him to
habeas corpus relief. ECF 2 at 2. In that ground, he argues that prison officials did not
properly consider his mental health conditions during the disciplinary proceedings in
his case. Id. However, in his petition, Bryant himself acknowledges that he did not
raise this issue in either his facility-level appeal with the facility head or his second-level
appeal with the final reviewing authority. Id. In this regard, he states: “This matter was
not raised in the administrative appeal due to [his] mental condition to recognize and
request someone to assist him while in the segregation unit.” Id. In other words,

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Bryant admits he failed to exhaust his administrative appeals as to the single ground he
now raises in his petition.
In opposition to the motion to dismiss, Bryant claims he properly raised his
mental health conditions in his administrative appeals, but his allegations are not
supported by the record in this case. See ECF 15, 18. For example, he states he raised
his mental health conditions in the first-level appeal he filed on December 5, 2016—the
day of his hearing—but the hearing officer never processed his appeal. ECF 15 at 2, 18
at 2. He explains he then filed a grievance against the hearing officer because he failed
to give his appeal documents to the administrative assistant for processing. ECF 13-2 at
10-11, 15 at 2-3. But even if he is correct that the hearing officer did not process his
appeal documents, Bryant appears to have filed another first level-appeal. ECF 13-2 at
4-5. However, there is no mention in Bryant’s handwritten appeal documents that he
suffers from any mental health conditions. See ECF 13-1 at 1-3, 13-2 at 4-5. The court
has thoroughly reviewed the documents contained in the record and can find no
evidence to support Bryant’s claim that he included his mental health conditions in any
of his appeal documents. Accordingly, because Bryant did not raise the issue of his
mental health conditions in his administrative appeals, it is procedurally defaulted.
Nevertheless, procedural default can be excused and the court can consider a
claim that was not properly raised if a petitioner can demonstrate “cause and
prejudice.” Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). Cause is “some
external objective factor, such as interference by officials or unavailability of the factual

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or legal basis for a claim, which impeded compliance with the state’s procedural rule.”
Barksdale v. Lane, 957 F.2d 379, 385 (7th Cir. 1992). The only argument Bryant presents
to overcome his failure to exhaust is that his mental health condition itself prevented
him from properly working with his lay advocate to raise his mental health conditions
in his administrative appeals and prepare his defense. ECF 2 at 2. However, mental
illness is not an external objective factor which meets the requirement of “cause” in the
cause and prejudice analysis. Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003)
(holding that mental retardation, mental deficiencies, and mental illness do not
demonstrate “cause” to excuse procedural default); Cawley v. DeTella, 71 F.3d 691, 696
(7th Cir. 1995). Therefore, Bryant’s alleged mental health conditions do not serve as a
basis by which the court can excuse his procedural default.
As a final matter, to the extent Bryant claims in his petition that his due process
rights were violated because IDOC officials violated prison policy by failing to consider
his mental health conditions, that contention fails. ECF 2 at 2. Here, Bryant relies on a
provision of IDOC policy that states a mental health professional should have been
consulted to determine if his conduct stemmed from his alleged conditions. ECF 18 at
3-4, 10. However, habeas corpus relief can only be granted for “violation[s] of the
Constitution or law or treaties of the United States.” 28 U.S.C. § 2254(a). Failure to
follow prison policy is not a constitutional violation. Estelle v. McGuire, 502 U.S. 62, 68
(1991) (“state-law violations provide no basis for federal habeas relief”) and Keller v.
Donahue, 271 F. App’x 531, 532 (7th Cir. 2008) (inmate’s claim that prison did not follow

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internal policies had “no bearing on his right to due process”). Therefore, the sole
ground Bryant raised in his petition cannot be remedied in a habeas corpus petition.
ACCORDINGLY:
The warden’s motion to dismiss (ECF 13) is GRANTED and Elmer Bryant’s
petition (ECF 2) is DISMISSED WITH PREJUDICE.
Bryant’s motion to suppress (ECF 11), motion to appoint counsel (ECF 16), and
motion for the court to request the video footage of the incident (ECF 17) are DENIED
AS MOOT.
The Clerk is DIRECTED to close the case.
SO ORDERED on February 6, 2019.
/s/ Philip P. Simon
JUDGE
UNITED STATES DISTRICT COURT

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