FISH v. KNIGHT

Filing 17

ENTRY Denying Petition for Writ of Habeas Corpus - 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 proceedings. Accordingly, Fish's petition for a writ of habeas corpus must be denied. Judgment consistent with this Entry shall now issue. ***SEE ENTRY***. Signed by Judge Larry J. McKinney on 8/6/2014. (copy to Petitioner via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARK FISH,
Petitioner,
vs.
WENDY KNIGHT,
Respondent.

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) Case No. 1:13-cv-1831-LJM-DKL
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Entry Denying Petition for Writ of Habeas Corpus
The petition of Mark Fish for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as No. CIC 13-08-0089. For the reasons explained in this entry, Fish’s
habeas petition must be denied.
A. Overview
Prisoners in Indiana custody may not be deprived of good-time credits, Cochran v. Buss,
381 F.3d 637, 639 (7th Cir. 2004), without due process. The due process requirement is satisfied
with the issuance of advance written notice of the charges, a limited opportunity to present
evidence to an impartial decision maker, a written statement articulating the reasons for the
disciplinary action and the evidence justifying it, and “some evidence in the record” to support
the finding of guilt. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); Wolff v.
McDonnell, 418 U.S. 539, 570-71 (1974); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003);
Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000).

B. The Disciplinary Proceeding
On August 6, 2013, Correctional Officer R. Foust wrote a Report of Conduct in case CIC
13-08-0089 charging Fish with unauthorized possession/theft. The conduct report states:
On 8-6-2013 I Officer R. Foust was doing a routine shakedown in Cell 30-4B. I
[Officer] R. Foust found 55 guitar picks that were taken from the recreation
department. I called the recreation department they said he (Offender Mark Fish
964381 30B-4B) was not to take any picks from recreation. Offender Mark Fish
did tell this Officer that he took the picks from recreation.
[Filing no. 13-1].
On August 9, 2013, Fish was notified of the charge and was given a copy of the conduct
report and the Notice of Disciplinary Hearing “Screening Report.” He was notified of his rights
and pled not guilty. He requested a lay advocate and requested to call witness LeBlanc. Fish did
not request any physical evidence.
The hearing officer conducted a disciplinary hearing in case CIC 13-08-0089 on August
15, 2013, and found Fish guilty of the charge of unauthorized possession. In making this
determination, the hearing officer considered the staff reports, the offender’s statement, and
physical evidence. The hearing officer imposed the following sanctions: a written reprimand, a
thirty-day loss of phone/commissary privileges, and a fifteen-day loss of earned credit time.
These sanctions were imposed because of the nature of the offense. [Filing no. 13-4].
Fish appealed the disciplinary proceeding through the administrative process. His appeals
were denied. He now seeks relief pursuant to 28 U.S.C. § 2254 arguing that his due process
rights were violated.

C. Analysis
Fish is not entitled to habeas relief because he was afforded due process. He only asserts
the following claims: 1) he was denied evidence; and 2) the Adult Disciplinary Procedure (ADP)
was violated.
First, Fish argues that he was denied evidence. He alleges that he was denied a witness
statement from Recreation Director Don LeBlanc. Due process requires that a prisoner be
allowed to call witnesses and present documentary evidence. Wolff, 418 U.S. at 539. Fish
requested that LeBlanc appear as a witness at the hearing and wrote the question “Leblanc – ‘Did
you give me picks to give guitar lessons with/talent show?’’ on the Screening Report. This
request was denied because LeBlanc no longer works for Correctional Industrial Facility. [Filing
no. 13-2]. However, at the hearing, witness Caldwell, who the State asserts is a staff member,
(dkt. 13), gave the following testimony:
Offender Fish has fixed all rec/chapel guitars since 2005 (9 years), he also
gave free guitar lessons to offenders, and helped set-up both talent shows @ C.I.F.
Offender Fish was given guitar pics for these services to provide guitar players
with pics to learn guitar and use for music programs, praise team, Rec, C.I.F.
band, etc. . . .
[Filing no. 13-3].
Thus, while LeBlanc did not appear as a witness to explain the presence of guitar picks in
Fish’s possession, witness Caldwell instead provided a written statement that explained why Fish
had guitar picks in his possession. As such, Fish was not denied evidence.
Second, to the extent Fish argues that it was a violation of the ADP to deny him the right
to call a witness or present documentary evidence in his defense at the hearing, this claim also
fails. Alleged violations of state policies are not cognizable claims. Hester v. McBride, 966 F.
Supp. 765, 775 (N.D. Ind. 1997).

Fish’s also asserts it was error for the hearing officer not to consider his conduct history
and the nature of the offense before imposing severe sanctions, and cites the ADP as support.
[Filing no. 1, at ECF p. 3]. However, again, violations of the ADP are not cognizable.
Finally, the return to order to show cause in this matter was due on April 11, 2014,
pursuant to the respondent’s third request for an extension of time. The respondent filed this
return seven days late and requested only in a footnote that this Court file it instanter on April 18,
2014. This Court accepts the return as timely filed as of April 18, 2014.
D. Conclusion
“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 proceedings. Accordingly, Fish’s petition for a writ of
habeas corpus must be denied. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

08/06/2014
Date: __________________
Distribution:
Mark Fish, # 964381
Pendleton Correctional Facility
Inmate Mail/Parcels
5124 West Reformatory Road
Pendleton, In 46064
Electronically registered counsel

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LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana