FULLER BEY JR. v. ZATECKY

Filing 25

ORDER denying 22 Respondent's Motion to Alter or Amend. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 3/24/2015. Copy sent to Petitioner via U.S. Mail. (BGT)

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

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

Entry on Respondent’s Motion to Alter or Amend Judgment
Judgment dismissing this action was entered on the docket January 7, 2015, when the Court
granted the petitioner’s petition for writ of habeas corpus. On February 3, 2015, the respondent
filed a motion to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure.
“A motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e) may be
used to draw the district court's attention to a manifest error of law or fact or to newly discovered
evidence.” United States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010). The respondent argues that
the Court’s decision in granting Mr. Fuller-Bey’s petition for writ of habeas corpus was erroneous
because it was based on critical findings not supported by the evidence and because it did not
properly apply the principles of constructive possession enunciated in Hamilton v. O’Leary, 976
F.2d 341 (7th Cir. 1992).
The dispositive facts in this case as reported in the conduct report are that “brew” was
found in a property box under a bed in the cell belonging to Mr. Fuller-Bey and his cell-mate. The
evidence presented by Mr. Fuller-Bey at and before his disciplinary hearing denied having a
property box and denied any knowledge of the brew. (Ex. H7, G2). His lack of knowledge was

supported by specific facts, including his unique sleep schedule, wearing ear plugs, and having no
desire or incentive to make brew. He admitted to smelling a scent of oranges, but saw orange peels
in the trash, so he assumed that the smell came from there. On appeal, indeed, his cell-mate
admitted to making the brew.
The respondent first argues that the record does not support the Court’s findings of fact.
The respondent asserts that the Court misstated that the property box was “locked,” as alleged by
Mr. Fuller-Bey in his written statement when he was screened (Ex. H7) and in his petition. Whether
or not the property box was locked, however, was not dispositive to the Court’s decision. Rather,
the issue is which offender(s) had possession of the intoxicants. While both inmates could have
had access to the property box, other evidence presented by Mr. Fuller-Bey, as discussed in the
Court’s decision, showed that Mr. Fuller-Bey did not participate in making the intoxicants.
“Proximity is not possession.” Austin v. Pazera, No. 14-2574, 2015 WL 710356 (7th Cir. Feb.
19, 2015) (Even if a petitioner knew there was contraband tobacco, “if he had no interest in
trafficking in tobacco and so would never become an actual possessor, he would not be guilty of
constructive possession, for obviously a bystander who merely notices something is not in
constructive possession of it.”).
With respect to the cell-mate’s statement acknowledging that he was the one making the
brew and that Mr. Fuller-Bey was unaware of the intoxicants, the respondent argues that this
statement was presented on appeal, and only evidence presented to the hearing officer may be
considered by the Court on review. This defense, however, was not made in the respondent’s return
to order to show cause, and a Rule 59(e) motion does not allow a party to “advance arguments that
could and should have been presented to the district court prior to the judgment.” United States v.
Resnick, 594 F.3d at 568. In his return, the respondent had argued that even though the cell-mate

confessed that the intoxicants were his, Mr. Fuller-Bey could still be found guilty “because he
shared the cell with another inmate.” Dkt. 11 at p. 5. The respondent further argued that even if a
due process error had been made, the burden was on Mr. Fuller-Bey “to show that the error had a
substantial and injurious effect on the outcome of the proceeding.” Dkt. 11 at pp. 5-6. Finding that
Mr. Fuller-Bey was guilty of possessing intoxicants in the face of evidence that he had no
knowledge of it and his cell-mate admitted to being the only one aware of and involved in making
the intoxicants, and being sanctioned with a loss of 90 days of earned credit time, loss of privileges,
and 30 days in disciplinary segregation, certainly amounted to a “substantial and injurious effect
on the outcome.”
For these reasons, the respondent’s motion to alter or amend [dkt. 22] is denied.
IT IS SO ORDERED.
_______________________________

Date: March 24, 2015
Distribution:
Electronically registered counsel
Dana C. Fuller-Bey, Jr.
#978697
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