ROPER v. ZATECKY
Filing
17
ENTRY Discussing Petition for Writ of Habeas Corpus. The petition of Lawrence Roper for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. ISR 13-12-0015. For the reasons explained in this Entry, Roper's habeas petition must be denied. SEE ORDER. Signed by Judge Larry J. McKinney on 7/7/2015. Copy sent to Petitioner via U.S. Mail. (BGT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LAWRENCE ROPER,
Petitioner,
vs.
DUSHAN ZATECKY,
Respondent.
)
)
)
) Case No. 1:14-cv-00883-LJM-DML
)
)
)
)
Entry Discussing Petition for Writ of Habeas Corpus
The petition of Lawrence Roper for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as No. ISR 13-12-0015. For the reasons explained in this Entry, Roper’s
habeas petition must be denied.
Discussion
A. Standard
Prisoners in Indiana custody may not be deprived of good-time credits, Cochran v. Buss,
381 F.3d 637, 639 (7th Cir. 2004) (per curiam), 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).
B. The Disciplinary Hearing
On November 26, 2013, Investigator B. Eloiza wrote a Report of Conduct that charged
Roper with class A offenses 111/113, conspiracy/attempting/aiding or abetting/trafficking. The
Conduct Report states:
Offender Roper, Lawrence # 978911 provided a sufficient amount of information
during recorded telephone calls made on the offender phone system which led to
the trafficking incident on November 15th 2013 involving Offender Nelson, Ronald
#973922. Offender Roper, Lawrence was interviewed on November 22, 2013 after
being placed on “HPI” status. During the interview Offender Roper claimed the
conversations leading to the trafficking incident were other circumstances not
related to the facility. After a thorough examination of the recorded phone calls
mentioned above, as well as the package intercepted on November 15th, 2013. I
find there is sufficient evidence supporting that Offender Roper did aid and attempt
to successfully traffic contraband into the facility on November 15th, 2013.
On December 3, 2013, Roper was notified of the charge of class A offenses 111/113, aiding or
abetting/trafficking, when he was served with the Conduct Report and the Notice of Disciplinary
Hearing (Screening Report). Roper was notified of his rights and pleaded not guilty. He indicated
that he wished to call Offender Nelson as a witness, and as physical evidence requested the audio
recording of the calls. Another offender agreed to serve as a lay advocate. Offender Nelson
provided the following as a written statement: “I Ronald Nelson wasn’t trafficking on the 15th of
Nov 2013. So how yall come up with trafficking, conspiracy/aiding or abetting can’t be true”.
The hearing officer listened to an audio of the recorded conversations, assisted by
Investigator Eloiza. The hearing officer determined that, due to the safety and security of the
facility. Roper would not be allowed to review the audio. The hearing officer summarized the
audio recordings as follows:
DHO listened to audio recordings of calls with Mr. Eloiza of IA. Mr. Eloiza
explained the use/meaning of the coded words in the conversations. In the first
conversation it was noted the Ofd and his visitor were monitoring another female
in the visiting room along with the Ofd. she was visiting. In the later phone
2
conversation, the female tells the Ofd. about her being talked with and any
involvement she or the Ofd had in the incident earlier in the day.
The hearing officer conducted a disciplinary hearing in ISR13-12-0015 on December 5, 2013.
Roper’s comment was as follows:
The audio wasn’t no big discovery & everytime his visitor comes when mine does
& mine gives her a ride but I don’t know her. Me & my visitor talked & no pkg had
been found & we never discussed any drugs & no code word could ever put me &
Nelson together. There’s no way IA can say I’m guilty. IA is conspiring to get me.
No evidence links me & Nelson.
The hearing officer found Roper guilty of class A offenses 111/113, aiding, abetting/trafficking.
The reason for the decision was that the conduct report was supported by the audio. In making this
determination, the hearing officer considered staff reports, the statement of the offender, and the
audio. The hearing officer recommended and approved sanctions including an earned credit time
deprivation of 180 days and demotion from credit class 1 to credit class 2. The hearing officer
imposed the sanctions due to the seriousness and frequency of the offense, the offender’s attitude
and demeanor during the hearing, and the degree to which the violation disrupted and endangered
the security of the facility.
Roper’s appeals were denied and he filed the present petition for a writ of habeas corpus.
C. Analysis
Roper challenges the disciplinary action against him arguing 1) that his hearing did not
comply with the minimal standards of due process; 2) that the hearing officer improperly denied
his request to have the audio recorded phone calls; and 3) the notice he received was
constitutionally inadequate.
1. Due process
Roper first argues that he was denied due process. He received 24-hour notice of the charge
against him, and, at the time he received notice of the charge, he was given the opportunity to
3
request witnesses and evidence. The staff reports, Roper’s statement, and the audio recordings of
conversations were presented to and considered by the hearing officer. Roper’s petition does not
claim he was denied an impartial hearing officer.
Roper asserts more specifically that the hearing officer’s decision was not supported by
some evidence as required. Due process requires only that the Hearing Officer’s decision be
supported by “some evidence.” 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). “[T]he relevant question is whether there is any evidence in the record that could support
the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56. 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.” Id. A conduct report alone may provide “some
evidence” of guilt, notwithstanding its brevity or the presence of conflicting evidence. McPherson
v. McBride, 188 F.3d 784, 786 (7th Cir. 1999). Although the evidence before the hearing officer
must “point to the accused’s guilt,” Lenea v. Lane, 882 F.2d 1171, 1175 (7th Cir. 1989), the
standard of some evidence “does not require evidence that logically precludes any conclusion but
the one reached by the disciplinary board.” Hill, 472 U.S. at 457. The determination should be
upheld if “there is any evidence in the record that could support the conclusion reached.” Id.
This evidence in this case consists of the six audio recordings, along with the Report of
Conduct, Roper’s statement, and Offender Nelson’s statement. In the Report of Conduct,
Investigator Eloiza relied on the recorded conversations and concluded that Roper attempted to
traffic contraband into the facility. The hearing officer listened to the audio recordings of Roper’s
conversations and noted in his summary that in the first conversation Roper and his visitor were
monitoring another female in the visiting room along with the offender she was visiting. The
4
hearing officer also noted that in the later phone conversation, the female tells Roper about being
talked with and any involvement she or Roper had in the incident earlier in the day, which would
have been November 15, 2013.
Here, there was “some evidence,” including the conduct report and the audio recordings,
to support the guilty finding. The Court will not reweigh this evidence. Roper has therefore failed
to show that his conviction is not support by sufficient evidence.
2. Recorded conversations
Roper also argues that the hearing officer improperly denied his request for the audio
recordings. The hearing officer determined that Roper would not be allowed to review the audio
“[d]ue to the safety and security of the facility.” The right to obtain evidence may be denied when
such production of evidence is inconsistent with institutional safety and correctional goals. Hill,
472 U.S. at 454; White v. Ind. Parole Bd., 266 F.3d 759, 767 (7th Cir.2001) (The Supreme Court
in “Wolff concluded that disciplinary boards need not place on the record all of the evidence that
influences their decisions. The Court recognized that considerations of institutional security may
militate against full disclosure.”). Roper’s due process rights were not violated by the denial of his
request to listen to the audio recordings.
3. Notice
Finally, Roper argues that he did not receive adequate notice of the charges against him
because the Conduct Report failed to clarify what he did and how it was a conduct violation. On
December 3, 2013, Roper was notified of the charge of class A offenses 111/113, aiding or
abetting/trafficking, when he was served with the Conduct Report and the Notice of Disciplinary
Hearing. The Conduct Report stated that Roper provided information during recorded telephone
5
calls that led to the trafficking incident with offender Nelson. Roper was aware of the acts he was
accused of. Roper stated the following at the hearing:
The audio wasn’t no big discovery & everytime his visitor comes when mine does
& mine gives her a ride but I don’t know her. Me & my visitor talked & no pkg had
been found & we never discussed any drugs & no code word could ever put me &
Nelson together. There’s no way IA can say I’m guilty. IA is conspiring to get me.
No evidence links me & Nelson.
This statement shows that Roper was aware that he was suspected of participating in trafficking
through use of his visitor and Nelson’s visitor. He also knew that the source of suspicion was the
recorded conversations in which he and his visitor used code words. Accordingly, Roper was
sufficiently made aware of the charges against him and there was no due process violation in the
notice given to him.
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 proceeding which entitles Roper to the relief he seeks.
Accordingly, Roper’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.
07/07/2015
Date: _________________
Distribution attached.
6
Distribution:
Lawrence Roper
DOC # 978911
Pendleton Correctional Facility
4490 West Reformatory Road
Pendleton, IN 46064
Electronically registered counsel
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?