Niemann v. Warden

Filing 16

OPINION AND ORDER: The Petition for Writ of Habeas Corpus is GRANTED. The Warden is ORDERED to file documentation by February 28, 2019, showing that the guilty finding in WCC 15-03-152 has been vacated and that any earned credit time or demotion in credit class that Niemann lost because of the guilty finding is restored. Signed by Judge Jon E DeGuilio on 1/29/19. (Copy mailed to pro se party)(ksp)

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

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CAUSE NO. 3:17-CV-968-JD-MGG

OPINION AND ORDER
Bradley Niemann, a prisoner without a lawyer, filed a habeas corpus petition
challenging a disciplinary hearing (WCC 15-03-152) where a Disciplinary Hearing
Officer (DHO) found him guilty of trafficking in violation of Indiana Department of
Correction (IDOC) policy A-113 on March 11, 2015. ECF 1 at 1. As a result, he was
sanctioned with the loss of 180 days earned credit time and a one-step demotion in
credit class. Id. However, after Niemann filed his petition with this court and stated
why he thought the DHO was wrong, the IDOC’s Final Reviewing Authority
reconsidered Niemann’s appeal and reduced his offense from trafficking (A-113) to
bribing/giving (B-233) because he possessed a thing of value—a protein shake mix—
without proper authorization. ECF 6-10 at 1. His 180 days earned credit time
deprivation was reduced to 90 days, but his other sanctions remained the same. Id. The
Warden has filed the administrative record and Niemann has filed a traverse. Thus,
this case is fully briefed.

The Fourteenth Amendment guarantees prisoners certain procedural due
process rights in prison disciplinary hearings: (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 the fact-finder
of evidence relied on and the reasons for the disciplinary action. Wolff v. McDonnell, 418
U.S. 539 (1974). To satisfy due process, there must also be “some evidence” in the
record to support the guilty finding. Superintendent, Mass Corr Inst. v. Hill, 472 U.S. 445,
455 (1985).
In the context of a prison disciplinary hearing, “the relevant question is whether
there is any evidence in the record that could support the conclusion reached by the
disciplinary board.” Hill, 472 U.S. at 455-56. “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

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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, Niemann was originally charged with and found guilty of trafficking in
violation of IDOC offense A-113. ECF 6-7 at 1. Specifically, IDOC offense A-113
prohibits inmates from “[e]ngaging in trafficking (as defined in IC 35-44.1-3-5) with
anyone who is not an offender residing in the same facility.” Indiana Department of
Correction, Adult Disciplinary Process, Appendix I. http://www.in.gov/idoc/files/
02-04-101_APPENDIX_I-OFFENSES_6-1-2015(1).pdf. However, on February 20, 2018,
the IDOC’s Final Reviewing Authority reconsidered Niemann’s appeal and modified
the charge from trafficking (offense A-113) to bribing/giving (B-233) because he
possessed a thing of value without proper authorization. ECF 6-10 at 1. IDOC offense
B-233 prohibits inmates from “[g]iving or offering a bribe or anything of value to a staff
member, authorized volunteer, visitor or contractor or possessing, giving to or
accepting from any person anything of value without proper authorization.” Appendix
I, supra.
The Conduct Report charged Niemann as follows:
On the above date and approximate time, I, Sgt. C. Sipich, along with Ofc.
M. Edwards were inventorying Offender Niemann’s #252188 property.
Inside his property box I found a “Universal Super Whey Pro.” This is a
protein shake mix. After some investigation, it was confirmed this item
cannot be obtain thru commissary or “I Care.”

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ECF 6-1 at 1.
Officer Edwards provided the following witness statement regarding the
incident: “Along with Sgt. C. Sipich, we were inventorying offender Niemann’s #252188
property. Sgt. Sipich found inside his property box ‘Universal Super Whey Pro.’ This is
a protein shake mix.” ECF 6-2 at 1. This evidence was then confiscated and sent to the
prison’s internal affairs office. ECF 6-3 at 1. Two photographs documented the
discovery of the protein shake mix. ECF 6-4 at 1-2.
On March 11, 2015, the DHO held a hearing in case WCC 15-03-152. ECF 6-7 at 1.
At that time, Niemann provided the following statement: “I don’t have anything to
say.” Id. After considering the evidence, the DHO found Niemann guilty of trafficking
in violation of offense A-113. Id.
In his petition, Niemann asserts there was insufficient evidence for the DHO to
find him guilty of violating offense A-113. ECF 1 at 2. In this regard, he explains the
“[c]onduct report does not establish trafficking as defined by law or prison rules of
conduct.” Id. In the return to the order to show cause, the Respondent concedes this
point and states: “Niemann is correct that the evidence did not support that he was
guilty of offense A-113, trafficking.” ECF 6 at 6. However, at the same time, the
Respondent contends there is sufficient evidence to sustain the modified charge—B233—possessing a thing of value without proper authorization. Id. The Respondent
explains the B-233 criteria was satisfied because the shake mix was found in Niemann’s
property box and could not be purchased at the commissary or through “I Care.” Id. at
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6-7. Furthermore, the Respondent states that Niemann was properly notified of the new
charge because the facts from the trafficking charge gave him notice that he could be
charged with the modified bribing/giving charge. Id. at 5.
A crucial issue and one that is central to the court’s due process analysis is
whether Niemann was properly notified of the new charge against him. Prisoners are
entitled to advance notice of the charges against them. Wolff, 418 U.S. at 563-64. This
requirement is satisfied so long as the underlying basis of the charge was adequate to
give the prisoner notice of the allegations against him. Northern v. Hanks, 326 F.3d 909,
910 (7th Cir. 2003). However, that is not what happened in this case. While Niemann
was properly notified of the original charge of trafficking (A-113) when he received the
screening report (ECF 6-5 at 1) and conduct report (ECF 6-1 at 1), he was not notified of
the new charge until after he received the letter from the Final Reviewing Authority on
February 20, 2018. ECF 6-10 at 1. In fact, this change in the charge did not occur until
almost two months after Niemann filed the petition in this case. ECF 1 at 1, 6-10 at 1.
Thus, after seeing Niemann’s argument in this case, the Respondent modified the
charge to something very different.
However, the Respondent asserts Niemann did have notice of the modified
charge and Northern v. Hanks is dispositive here. ECF 6 at 5. This is because the facts in
the conduct report put Niemann on sufficient notice of the charge and gave him the
information he needed to defend against a charge of possessing something of value
without proper authorization. Id. In Northern, the petitioner was charged with
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conspiracy and bribery in connection with an investigation revealing that he and two
other inmates were smuggling tobacco into the facility. 326 F.3d at 909-10. Prior to the
hearing, he was given a copy of the investigation report detailing the factual basis for
the charges. Id. at 910. The investigation report described a scheme whereby a staff
member brought tobacco into the facility and hid it in a place that Northern could
access. Id. At the disciplinary hearing, Northern was found guilty of conspiracy. Id.
Northern appealed, and the reviewing authority determined that the facts more
appropriately supported a finding that Northern had committed “attempted
trafficking.” Id. They modified the charge accordingly. Id.
Northern then filed a federal habeas corpus petition claiming that the reviewing
authority’s action violated his due process rights because it denied him adequate notice
of the charge and prevented him from mounting an appropriate defense. 326 F.3d at
910. The Seventh Circuit rejected this argument, relying on the fact that Northern had
been given a copy of the investigation report, which “inform[ed] him of the facts
underlying the charge.” Id. The Seventh Circuit concluded, “Because the factual basis
of the investigation report gave Northern all the information he needed to defend
against the trafficking charge, the reviewing authority’s modification did not deprive
Northern of his due process rights.” Id. at 911 (citing Holt v. Caspari, 961 F.2d at 1370,
1373 (8th Cir. 1992) (finding prison disciplinary committee did not deny due process by
elevating charge from “possession of contraband” to “possession of dangerous
contraband” because the factual basis for both charges was the same)). In other words,
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when an inmate is sufficiently notified of the factual basis for a charge, he is also on
notice that he could face another charge based on the same set of facts. Id.
This case is different from Northern. In Northern, the modified charge related
directly to the same set of facts as the original charge for which the petitioner had
received notice. In this case, the factual basis for the new charge of possessing
something of value without proper authorization, is very different from the factual
basis for the original charge of trafficking. The elements or facts underlying the original
charge pertain to Niemann’s alleged activities related to trafficking contraband into the
prison with someone who is not an offender residing in the same facility. On the other
hand, the elements or facts underlying the new charge pertain to Niemann’s possessing
or accepting something of value without proper authorization—a protein shake mix
which was found in his property box in his cell. True, both offenses involve the
possession of a prohibited item. But the original charge focuses on trafficking while the
revised charge focuses merely on possession. Given the difference in these critical
elements one cannot say that Niemann’s defense would not have changed under these
circumstances. Because the factual basis for the two charges are very different,
Niemann’s due process rights were violated because he did not receive appropriate
notice of the new charge and, as a consequence, could not mount a proper defense
against the charge. Hill v. Hobart, No. 06-C-57-C, 2006 WL 768521, *6-7 (W.D. Wis. Mar.
23, 2006) (granting habeas relief where petitioner was not on notice that he would have
to defend himself against a different charge); Evans v. Deuth, 8 F.Supp.2d 1135, 1137
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(N.D. Ind. 1998) (granting habeas relief based on lack of notice where screening report
stated the charge was “giving anything of value,” but that charge was crossed out on
the disciplinary report and replaced with the charge of “extortion.”).
As discussed supra, Niemann did not receive notice of the new charge until
almost two months after he filed his petition with this court. ECF 1 at 1, 6-10 at 1.
Therefore, because Niemann was entitled to notice of the factual allegations of the new
charge at least 24 hours before the hearing but did not receive it, he is entitled to habeas
corpus relief in this case. Wolff, 418 U.S. at 564.
For these reasons, the habeas corpus petition is GRANTED. The Warden is
ORDERED to file documentation by February 28, 2019, showing that the guilty finding
in WCC 15-03-152 has been vacated and that any earned credit time or demotion in
credit class that Niemann lost because of the guilty finding is restored.
SO ORDERED on January 29, 2019

/s/ JON E. DEGUILIO
JUDGE
UNITED STATES DISTRICT COURT

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