FULLER BEY JR. v. ZATECKY

Filing 20

Entry Granting Petition for Writ of Habeas Corpus - The petition of Dana C. Fuller-Bey, Jr. for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. ISR 13-11-0040. For the reasons explained in this Entry, Mr. Full er-Bey's habeas petition must be GRANTED. Because there was insufficient evidence of Mr. Fuller-Bey's guilt, the disciplinary finding of guilt was arbitrary and that finding and the sanctions imposed must be VACATED AND RESCINDED. Acco rdingly, Mr. Fuller-Bey's petition for a writ of habeas corpus is GRANTED. No rehearing of the misconduct charged in No. ISR 13-11-0040 is permitted. This decision shall be considered with respect to the permanent modification of visiting privileges issued on November 19, 2013. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 1/6/2015.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DANA C. FULLER BEY, JR.,
Petitioner,
vs.
DUSHAN ZATECKY,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 1:14-cv-0277-JMS-TAB

Entry Granting Petition for Writ of Habeas Corpus
The petition of Dana C. Fuller-Bey, Jr. for a writ of habeas corpus challenges a prison
disciplinary proceeding identified as No. ISR 13-11-0040. For the reasons explained in this Entry,
Mr. Fuller-Bey’s habeas petition must be GRANTED.
I. Overview
Prisoners in Indiana custody may not be deprived of good-time credits, Cochran v. Buss,
381 F.3d 637, 639 (7th Cir. 2004), or of credit-earning class, Montgomery v. Anderson, 262 F.3d
641, 644-45 (7th Cir. 2001), 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).

II. The Disciplinary Proceeding
On November 6, 2013, Correctional Officer McClish wrote a conduct report that charged
Mr. Fuller-Bey with class B offense 231, possession of intoxicants. The conduct report states:
At roughly 12:30 AM Ofc. McClish was doing a routine walk to wake up kitchen
workers when he went to E1 203 to wake up [O]ffender Fuller #978697. Upon
opening door smelled what appeared to be brew. Notified Ck. Pt. 2 [O]fc. Warner
of this. Ofc. Warner came over to E-Bldg and preformed (sic) a walk thru and also
smelled brew around E1-203. Ofc. Warner then notified unit 51 and Lt. Smith. Both
advised that we had to wait until offender was out for breakfast. Breakfast line went
out at 4:16 am and Ofc. McClish notified Ofc. Warner that both offenders were
gone. Ofc. Warner came to controll (sic) room as Ofc. McClish went to check cell.
Found property box under bed opened it and smelled brew. Check box and found 2
bags of brew cooking, orange in color with oranges inside and burping device, and
2 pieces of rubber tubing approx. 2ft in length, and shampoo bottle with liquad (sic)
and 6 lbs of sugar.
Officer Warner also provided a statement:
On 11-6-13 at 4:27 AM I, Ofc. D. Warner, observe[d] Ofc. P. McClish remove grey
property box from E1-203. The property box contained 2 bags of orange homemade
intoxicant, 2-2FT sections of white hose, and homemade burping device. The items
were wrapped in white blanket. E1-203 is occupied by OFN. Dana Fuller # 978697
[and] Ellis, Michael #922017.
On November 13, 2013, Mr. Fuller-Bey was notified of the charge and served with the
conduct report and the notice of disciplinary hearing “screening report.” Mr. Fuller-Bey was
notified of his rights, pled not guilty, and requested the appointment of a lay advocate. During the
screening, Mr. Fuller-Bey did not request any witnesses or physical evidence. After screening,
however, Mr. Fuller-Bey submitted a written request for “the kitchen countletter to show I was at
work on the day the alleged incident occurred.” This request was denied because “[i]t does not
matter if you were in the room or at work. It was found in your housing area.” Ex. E.

The hearing officer conducted a disciplinary hearing in No. ISR 13-11-0040 on November
15, 2013, and found Mr. Fuller-Bey guilty of the charge of possession of intoxicants. At the
hearing, Mr. Fuller-Bey provided a written statement asserting that he had no knowledge of the
“brew” being in the cell. He stated that he did not have a property box assigned to him on that day.
The intoxicants were found in his cellmate’s closed, locked property box. Mr. Fuller-Bey admitted
to smelling a faint scent of oranges when he woke up that morning and seeing orange peels in the
trash, so he assumed that is where the smell came from. When he left the cell for his work
assignment, his cellmate was asleep. Mr. Fuller-Bey works from 1 a.m. until 8:30 a.m. and stays
up until noon and then goes to sleep. He does not drink nor does he need money, he was conduct
charge free for a year and a half, he has had a job for about two years, he has been in an
apprenticeship program through Aramark, attends religious services regularly, has regular visitors,
and got married July 10. He stated that he does not know what his cellmate does during the day
while he sleeps and when he wakes up for work, his cellmate is asleep. He stated that it would
make no sense for him to involve himself with making intoxicants. If he had known that “brew”
was in his cell, he would have said something to his cellmate. Ex. G-2, dkt. 11-7.
In making the guilty determination, the hearing officer relied on the conduct report, the
officer’s witness statement, the pictures, and Mr. Fuller-Bey’s written statement at the hearing.
The hearing officer imposed the following sanctions: a written reprimand, a 30 day loss of
telephone and commissary privileges, a suspended 3 months in disciplinary segregation, and a 90
day earned credit time deprivation. The sanctions were imposed because of the seriousness and
nature of the offense and the degree to which the violation disrupted and endangered the security
of the facility.

Mr. Fuller-Bey’s appeals through the administrative process were denied. On appeal, he
submitted a statement from his cellmate, Mr. Ellis, dated November 20, 2013, which confirmed
that the intoxicants belonged to Mr. Ellis and that Mr. Fuller-Bey did not know about the
intoxicants. Nonetheless, the guilty finding was affirmed because “[a]ccording to policy this item
was in your possession because it was in your living quarters.” Ex. H-8, dkt. 11-8. Mr. Fuller-Bey
now seeks relief pursuant to 28 U.S.C. § 2254, arguing that his due process rights were violated.
III. Analysis
Mr. Fuller-Bey brings the following claims for habeas relief: 1) his cellmate Michael Ellis
admitted that the intoxicants were his and he stated that Mr. Fuller-Bey was unaware of the
intoxicants being in Mr. Ellis’ property box; 2) he was restricted to permanent non-contact
visitation as a result of the guilty finding.
Mr. Fuller-Bey challenges the sufficiency of the evidence. The “some evidence”
evidentiary standard in this type of case is much more lenient than “beyond a reasonable doubt”
or even “by a preponderance.” See Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002) (hearing
officer in prison disciplinary case “need not show culpability beyond a reasonable doubt or credit
exculpatory evidence.”). The “some evidence” standard requires “only that the decision not be
arbitrary or without support in the record.” McPherson v. McBride, 188 F.3d 784, 786 (7th Cir.
1999).
Mr. Fuller-Bey argues that there was no evidence that the intoxicants belonged to him.
Both Mr. Fuller-Bey and his cellmate Mr. Ellis were written up on the “possession of intoxicants”
charge and both were found guilty. The respondent argues that the required sufficiency of
evidence, “some evidence,” may be satisfied when an illegal item is found in a cell shared by more
than one offender, citing Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir. 1992) (“constructive

possession provides ‘some evidence’ of guilt when contraband is found where only a few inmates
have access”). Each offender may be found guilty by joint or constructive possession. Id.
Hamilton involved a situation where contraband was found in a cell occupied by and under
the control of the petitioner and three cellmates. There was “no direct evidence identifying one of
the four cellmates as the owner of the contraband.” Id. at 346. This meant that there was a 25%
chance that the contraband belonged to the petitioner, and that was sufficient to constitute “some
evidence.” Id.
Unlike Hamilton, however, in this case, there is direct evidence in the record identifying a
single owner of the “brew.” The record is undisputed that Mr. Ellis was the inmate who was
making the brew. The contraband was found in Mr. Ellis’ closed, locked property box. Mr. FullerBey did not have a property box. He was unaware of any intoxicant. The conduct report stated that
the officer “found property box under bed.” The conduct report did not identify Mr. Fuller-Bey’s
bed nor did it state that it was his property box. All of the evidence is exculpatory in relation to
Mr. Fuller-Bey. If there were no direct evidence as to which cellmate possessed the property box
and the contraband inside, then the “some evidence” standard would have been satisfied. Under
these circumstances, however, the doctrine of constructive possession is not applicable and the
record is devoid of evidence showing that Mr. Fuller-Bey was in possession of intoxicants.
Even under the liberal standard of “some evidence,” there was not sufficient evidence in
the record to support the finding of guilt. Under these circumstances, Mr. Fuller-Bey’s due process
rights were violated in finding him guilty of possessing intoxicants. His petition for writ of habeas
corpus must be granted.

IV. Conclusion
“The touchstone of due process is protection of the individual against arbitrary action of
the government.” Wolff, 418 U.S. at 558. Because there was insufficient evidence of Mr. FullerBey’s guilt, the disciplinary finding of guilt was arbitrary and that finding and the sanctions
imposed must be VACATED AND RESCINDED. Accordingly, Mr. Fuller-Bey’s petition for a
writ of habeas corpus is GRANTED. No rehearing of the misconduct charged in No. ISR 13-110040 is permitted. This decision shall be considered with respect to the permanent modification of
visiting privileges issued on November 19, 2013. Pet’r Ex. C (dkt. 19-13).
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

January 6, 2015
Date: __________________

Distribution:
Electronically registered counsel
Dana C. Fuller-Bey, Jr.
#978697
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana