Pannell v. Warden

Filing 31

OPINION AND ORDER: The court DENIES the 1 habeas corpus petition, DIRECTS the clerk to enter judgment and close this case and DENIES David Pannell leave to appeal in forma pauperis. Signed by Magistrate Judge Michael G Gotsch, Sr on 5/6/22. (Copy mailed to pro se party). (nal)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAVID PANNELL,
Petitioner,
v.

CAUSE NO. 3:21-CV-773-MGG

WARDEN,
Respondent.
OPINION AND ORDER
David Pannell, a prisoner without a lawyer, filed a habeas corpus petition
challenging the disciplinary decision (CIC-21-5-203) at the Correctional Industrial
Facility in which a disciplinary hearing officer (DHO) found him guilty of threatening
in violation of Indiana Department of Correction Offense 213. Following a hearing, he
was sanctioned with a loss of ninety days earned credit time and a demotion in credit
class.
Pannell argues that he is entitled to habeas relief because the administrative
record lacks sufficient evidence for a finding of guilt. He contends that the testimony of
Officer Carey and the video recording summary show that he did not threaten Officer
Carey as charged.
[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

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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). A conduct report, by itself, is
sufficient to satisfy the “some evidence” standard. McPherson v. McBride, 188 F.3d 784,
786 (7th Cir. 1999) (“That report alone provides “some evidence” for the CAB’s
decision.”).
The administrative record includes a conduct report in which Officer Carey
represents that Pannell began arguing with her and a library clerk at the law library.
ECF 14-1. When Officer Carey told Pannell to return to his housing unit, Pannell
pointed at her and said, “You are denying all my rights, and I will do something about
it.” Id. As he left the law library, he turned again pointed at her. Id. The administrative
record also includes a video recording summary stating that, at 8:39 a.m., Pannell was
in an agitated state, went to the clerk’s desk, and spoke to the library clerk and Officer
Carey. ECF 14-6. At 8:40, the library clerk and Officer Carey went to Pannell’s
workstation. Id. At 8:43, Pannell turned as he left the law library and spoke to Officer
Carey while aggressively pointing at her. Id. The administrative record includes the
video recording itself, which the court has reviewed and found to be consistent with the
video recording summary as well as the conduct report. ECF 18. The administrative
record also includes Officer Carey’s testimony in which she did not recall many of the
details of the threatening incident, including the nature of the argument preceding it.
ECF 14-7.

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The conduct report constitutes some evidence that Pannell threatened Officer
Carey. To Pannell’s point, the video recording summary and Officer Carey’s testimony
do not corroborate every detail in the conduct report, but they also do not undermine
the material allegations that Pannell threatened Officer Carey by telling her that he
would “do something about it” and pointing at her. Therefore, the claim that the
hearing officer did not have sufficient evidence is not a basis for habeas relief.
Pannell argues that he is entitled to habeas relief because the hearing officer
denied him the right to present testimony from three witnesses: (1) Sergeant Murray,
who would have testified that Officer Carey did not tell her by radio that Pannell had
threatened her; (2) Lieutenant Disney, who would have testified that Officer Carey did
not tell him by radio that Pannell had threatened her; and (3) Inmate Thomas, the
library clerk, who would have testified that Pannell did not argue with him.
Correctional staff denied the request for testimony from Sergeant Murray and
Lieutenant Disney because they were not at the law library when the threatening
incident occurred. ECF 14-5. The hearing officer attests that he did not recall Pannell’s
request for testimony from Inmate Thomas. ECF 14-15.
“[T]he inmate facing disciplinary proceedings should be allowed to call
witnesses and present documentary evidence.” Wolff v. McDonnell, 418 U.S. 539, 566
(1974). However, “[p]rison officials must have the necessary discretion to keep the
hearing within reasonable limits and to refuse to call witnesses that may create a risk of
reprisal or undermine authority, as well as to limit access to other inmates to collect
statements or to compile other documentary evidence.” Id. The court agrees that the
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testimony of Sergeant Murray and Lieutenant Disney that Officer Carey did not tell
them that Pannell threatened her would have been of limited probative value. These
correctional officers had no personal knowledge of the threatening incident, and
Pannell offers no explanation as to why he believes that the failure to inform these
particular correctional officers of the offense by radio would have meaningfully
undermined the finding of guilt. Similarly, even if Inmate Thomas testified that Pannell
did not argue with him or Officer Carey, it is unclear how this would have undermined
the material allegations that Pannell threatened Officer Carey by telling her that he
would “do something about it” and pointing at her when she told him to return to his
housing unit. Because correctional staff reasonably denied these requests for witnesses,
this claim is not a basis for habeas relief.
Pannell argues that he is entitled to habeas relief because he did not receive
adequate notice of the disciplinary charges against him. He contends that the conduct
report did not indicate that Pannell communicated “the intent to physically harm or
intimidate” Officer Carey as required for the offense of threatening. He also argues that
he is entitled to habeas relief because he received the video recording summary less
than twenty-hours before the hearing. To satisfy procedural due process, “written
notice of the charges must be given to the disciplinary-action defendant in order to
inform him of the charges and to enable him to marshal the facts and prepare a
defense.” Wolff v. McDonnell, 418 U.S. 539, 564 (1974). “At least a brief period of time
after the notice, no less than 24 hours, should be allowed to the inmate to prepare.” Id.
Contrary to Pannell’s assertion, the conduct report adequately describes the threatening
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conduct that is the subject of the disciplinary charges -- specifically, that Pannell told
Officer Carey that he would “do something about it” and pointed at her when she told
him to return to his housing unit. ECF 14-1. Moreover, notice of particular articles of
evidence at least twenty-four hours before the hearing is not listed among the
requirements for procedural due process for prison disciplinary proceedings
enumerated in Wolff, and the Supreme Court of the United States has indicated that this
list of requirements is exhaustive. White v. Indiana Parole Bd., 266 F.3d 759, 768 (7th Cir.
2001) (citing Baxter v. Palmigiano, 425 U.S. 308, 324 (1976)). Therefore, the claims that
Pannell received inadequate notice are not a basis for habeas relief.
Pannell argues that he is entitled to habeas relief because the hearing officer did
not provide an adequate written explanation of the disciplinary decision. Procedural
due process requires a “written statement by the factfinders as to the evidence relied on
and reasons for the disciplinary action.” Wolff v. McDonnell, 418 U.S. 539, 564. (1974). “A
prison disciplinary committee is required to give a brief statement of the evidentiary
basis for its decision to administer discipline, so that a reviewing court, parole
authorities, etc. can determine whether the evidence before the committee was adequate
to support its findings concerning the nature and gravity of the prisoner’s misconduct.”
Saenz v. Young, 811 F.2d 1172, 1174 (7th Cir. 1987). Though the hearing officer’s
explanation is not particularly detailed, it identifies the evidentiary basis for the finding
of guilt and the reasons for the sanctions imposed and thus satisfies procedural due
process. ECF 14-5. Therefore, this claim is not a basis for habeas relief.

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If Pannell 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 court:
(1) DENIES the habeas corpus petition (ECF 1);
(2) DIRECTS the clerk to enter judgment and close this case; and
(3) DENIES David Pannell leave to appeal in forma pauperis.
SO ORDERED on May 6, 2022
s/ Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

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