MUKKA v. BUTTS
ENTRY Discussing Petition for Writ of Habeas Corpus - "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 cha rge, disciplinary proceedings, or sanctions involved in the events identified in this action, and there was no constitutional infirmity in the proceeding which entitles Mukka to the relief he seeks. Accordingly, Mukka's petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Entry shall now issue.**SEE ORDER** Copy to Petitioner via U.S. Mail. Signed by Judge Tanya Walton Pratt on 9/21/2016.(JLS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Case No. 1:14-cv-01526-TWP-DKL
Entry Discussing Petition for Writ of Habeas Corpus
The petition of Richard Mukka for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as No. IYC 14-05-0149. For the reasons explained in this Entry, Mukka’s
habeas petition must be denied.
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 May 14, 2014, Kelly Hofman, of the New Castle Correctional Facility, wrote a Report
of Conduct in case number IYC 14-05-0149 (“conduct report”) charging Mukka with Code A-116
for his refusal to participate in a mandatory program, i.e., the Department’s Sex Offender
Management and Monitoring (“SOMM”) Program. 1 SOMM Program participants are “required to
discuss and take responsibility for past acts of sexual violence and abuse that [they] have
committed in order to benefit from the program.” requires offenders to take responsibility for acts
of sexual violence and abuse). The conduct report states the following:
On Wednesday 5/14/14, Offender Richard Mukka #103641 was sent a call out pass
to discuss his participation in the SOMM program. This writer told Offender
Richard Mukka #103641 that he was being offered the SOMM program and this
meant he would agree to participate in the program by honestly taking
responsibility for the sexual offence. Offender Richard Mukka #103641 was
informed that he was not meeting program expectations and was being written up
on a Code 116A for refusing to take accountability for his sexual offense.
On May 18, 2014, Mukka was served with the Notice of Disciplinary Hearing (Screening
Report) (“screening report”), which notified him of his rights. He pled not guilty to the charge and
did not waive 24 hours’ notice of the hearing date. He asked for a lay advocate, and that Officer
Morefield and Cari Rezman serve as witnesses. On May 21, 2014, a hearing officer conducted a
disciplinary hearing in Mukka’s case. Mukka had the assistance of a lay advocate. At the hearing,
Offender Mukka stated: “They threw me out before they let me in. All she said I did wrong was
use the word apparently.” Cari Rezman, part of the SOMM Program administration, stated as
On this date, 5/14/14, Mr. Richard Mukka #103641 stated that he “apparently”
committed his sexual offence. The program requirements were explained to Mr.
There is class action case pending in this Court in Lacy v. State of Indiana, case 1:13-cv-00811-RLY-DML, in which
the petitioners assert a challenge on constitutional grounds to the SOMM Program, but the parties agree that Mukka
is not part of the proposed class.
Mukka whom was not willing to respond directly about taking responsibility for his
instant sexual offense. Mr. Mukka was informed that he would be written up on a
Code 116A for refusing to meet program expectations.
Witness C. M. Morefield stated:
The above offender came into my office on 5/14/2014 to tell me he was being
written up on an A-116 from his SOMM instructor. The offender stated that he is
willing to participate in the program and that he told his instructor that he would
say anything that she wanted him to say. He went on to state that she said he was
not being sincere.
At the conclusion of the proceeding, the hearing officer relied upon staff reports, the
statement of the offender, and evidence from witnesses in finding Mukka guilty. At the end of the
hearing and based upon the hearing officer’s recommendations, the following sanctions were
imposed: a loss of commissary and phone privileges, one month of disciplinary segregation, 180
day earned credit time deprivation, and a credit class demotion.
Mukka’s appeals were denied and he filed the present petition for a writ of habeas corpus.
Mukka challenges his habeas conviction arguing that the evidence against him was
insufficient, that the decision-maker was not impartial, that his double jeopardy rights were
violated, and that he was coerced to sign SOMM program contract.
1. Sufficiency of the Evidence
Mukka argues that his conviction was based on an executive direction and not “the
preponderance of the evidence.” This argument is understood to be a challenge to the sufficiency
of the evidence against him.
In reviewing the sufficiency of the evidence, “courts are not required to conduct an
examination of the entire record, independently assess witness credibility, or weigh the evidence,
but only determine whether the prison disciplinary board’s decision to revoke good time credits
has some factual basis.” McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999); see also Meeks
v. McBride, 81 F.3d 717, 720 (7th Cir. 1996) (“because the ‘some evidence’ standard . . . does not
permit courts to consider the relative weight of the evidence presented to the disciplinary board, it
is ‘[g]enerally immaterial that an accused prisoner presented exculpatory evidence unless that
evidence directly undercuts the reliability of the evidence on which the disciplinary authority
relied’ in support of its conclusion”)(quoting Viens v. Daniels, 871 F.2d 1328, 1335 (7th Cir.
1989)). Instead, the “some evidence” standard of Hill is lenient, “requiring only that the decision
not be arbitrary or without support in the record.” McPherson, 188 F.3d at 786. The conduct report
prepared by Dr. Kelly Hofman, SOMM team leader and Mukka’s instructor, as supported by the
witness statements of record, show that Mukka knew about the SOMM Program requirements and
expectations and that he refused to take responsibility for his offense in compliance with the
applicable requirements and expectations. This is sufficient to satisfy the “some evidence”
2. Impartial Decision-Maker
Mukka also argues that his disciplinary case was not heard by an impartial decision-maker.
A prisoner in a disciplinary action has the right to be heard before an impartial decision maker.
Hill, 472 U.S. at 454. A “sufficiently impartial” decision maker is necessary in order to shield the
prisoner from the arbitrary deprivation of his liberties. Gaither v. Anderson, 236 F.3d 817, 820
(7th Cir. 2000) (per curiam); Redding v. Fairman, 717 F.2d 1105, 1112, 1116 (7th Cir. 1983).
“[T]he requirement of impartiality mandates the disqualification of an official who is directly
involved in the incident or is otherwise substantially involved in the incident but does not require
the disqualification of someone tangentially involved.” Merritt v. De Los Santos, 721 F.2d 598,
601 (7th Cir. 1983). His assertion that the sanctions were excessive is insufficient to show partiality
on the part of the decision-maker. Mukka has not presented any evidence that the decision-maker
was substantially involved in the incident or was otherwise not impartial.
3. Double Jeopardy
Mukka also asserts that the disciplinary action violates his right against double jeopardy.
But it is well-established that prison disciplinary proceedings do not implicate double jeopardy
concerns. United States v. Morales, 312 Fed.Appx. 823, 824 (7th Cir. 2009) (citing cases).
Finally, Mukka suggests that he was coerced into signing the SOMM agreement. The
evidence, including the Informal Complaint submitted by Mukka, indicates to the contrary – that
Mukka agreed to participate in the SOMM program. In the Informal Complaint, Mukka states that
he agreed to participate in the program and that he never refused to comply. He has therefore not
shown that his due process rights were violated.
“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 Mukka to the relief he seeks.
Accordingly, Mukka’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.
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