SCOTT v. BUTTS

Filing 21

ENTRY Discussing Petition for Writ of Habeas Corpus - Mr. Scott's petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Entry shall now issue. *SEE ENTRY*. Signed by Judge Tanya Walton Pratt on 9/4/2012. Copy Mailed.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KENNETH E. SCOTT,
Petitioner,
v.
KEITH BUTTS,
Respondent.

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No. 1:12-cv-0077-TWP-MJD

Entry Discussing Petition for Writ of Habeas Corpus
Petitioner Kenneth E. Scott (“Mr. Scott”) is a state prisoner who was disciplined
in a proceeding identified as No. ISR 11-06-0098 for violating prison rules by
threatening.
A federal habeas court Awill overturn the . . . [conduct board=s] decision only if no
reasonable adjudicator could have found . . . [the petitioner] guilty of the offense on
the basis of the evidence presented"), Henderson v. United States Parole Comm'n,
13 F.3d 1073, 1077 (7th Cir. 1993) , cert. denied, 115 S. Ct. 314 (1994), The evidence
favorable to the decision of the conduct board is the following: Mr. Scott wrote and
delivered a request for interview. It was addressed and delivered on 6-12-2011 to
Food Service Director Greg Sheward. The request for interview contained the
statement: “All Aramark need to keep looking over their shoulders . . . .” The rule
prohibiting

threatening

provides

in

part

that

threatening

includes

“[c]ommunicating to another person a plan to physically harm, harass, or intimidate
that person or someone else.”

Mr. Scott contends that the proceeding was constitutionally infirm and he
seeks a writ of habeas corpus. His specific contention is that the finding of
misconduct was not based on constitutionally sufficient evidence. He also contends
that the conduct report was issued for retaliatory reasons.
The writ Mr. Scott seeks can be issued only if the court finds that he is Ain
custody in violation of the Constitution or laws or treaties of the United States.@ 28
U.S.C. ' 2254(a). Because he has not made such a showing, his petition for a writ of
habeas corpus must be denied. The reason for this disposition is that the pleadings
and the expanded record show that (1) the procedural protections required by Wolff
v. McDonnell, 418 U.S. 539 (1974), were provided, (2) there was at least Asome
evidence@ to support the decision of the conduct board as required by
Superintendent of Walpole v. Hill, 472 U.S. 445 (1985), and (3) the proceedings were
not otherwise tainted by prejudicial error.
Mr. Scott’s challenge to the sufficiency of the evidence fails. The "some
evidence" standard is lenient, "requiring only that the decision not be arbitrary or
without support in the record." McPherson v. McBride, 188 F.3d 784, 786 (7th Cir.
1999). A conduct report alone may suffice as Asome evidence.@ Id.; see also Webb v.
Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (even Ameager@ proof is sufficient).
Here, the conduct report is clear and provides a direct account of Mr. Scott’s
conduct. A reasonable adjudicator could readily have concluded that the words in
Mr. Scott’s note to Food Service Director Greg Sheward were threatening. Although
the evidence before the disciplinary board must "point to the accused's guilt," Lenea

v. Lane, 882 F.2d 1171, 1175 (7th Cir. 1989), Aonly evidence that was presented to
the Adjustment Committee is relevant to this analysis.@ Hamilton v. O'Leary, 976
F.2d 341, 346 (7th Cir. 1992); see also Hill, 472 U.S. at 457 ("The Federal
Constitution does not require evidence that logically precludes any conclusion but
the one reached by the disciplinary board."). The evidence here was constitutionally
sufficient.
As to the claim of a retaliatory motive in issuing the conduct report, this
claim was not included in Mr. Scott’s administrative appeal and thus has been
waived. Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002); Markham v. Clark, 978
F.2d 993, 995 (7th Cir. 1992). A conduct board (or hearing officer) that follows
established procedures, whose discretion is circumscribed by regulations, and which
adheres to Wolff's procedural requirements, does not pose a hazard of arbitrariness
violative of due process. Wolff, 418 U.S. at 571. Those procedures were followed in
this case and Mr. Scott offers nothing other than the outcome of the matter to
support his claim of bias. The court declines the invitation to adopt this post hoc
rationalization and bootstrapping. See Brown v. Carpenter, 889 F.Supp. 1028, 1034
(W.D.Tenn. 1995) ("Plaintiff has no right protecting him from being charged with a
disciplinary offense . . . . A plaintiff cannot bootstrap a frivolous complaint with a
conclusory allegation of retaliation."). The claim of retaliation, even if procedurally
preserved for argument here, is without factual basis and is rejected as a ground
supporting the award of federal habeas corpus relief.

"The touchstone of due process is protection of the individual against
arbitrary action of the government." Wolff, 418 U.S. at 558. There was no arbitrary
action in any aspect of the charge, disciplinary proceedings, or sanctions involved in
the events identified in this action, and there was no constitutional infirmity in the
proceeding which entitles Mr. Scott to the relief he seeks. Accordingly, Mr.Scott’s
petition for a writ of habeas corpus must be denied and the action dismissed.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
09/04/2012
Date: __________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
Kenneth Edward Scott
No. 910421
Pendleton Correctional Facility
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, IN 46064-9001
[e-mail]