WHITE v. ZATECKY

Filing 19

ENTRY Directing Additional Response Regarding Exculpatory Evidence Claim. The respondent shall have through March 10, 2017, in which to respond to the claim that the hearing officer failed to consider exculpatory evidence consisting of James White 's statement and video evidence. In other words, the respondent shall have through that deadline in which to show cause why Mr. White's petition should not be granted and the disciplinary proceeding vacated and set for a rehearing. Signed by Judge William T. Lawrence on 2/13/2017.(MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBERT WHITE,
Petitioner,
vs.
DUSHAN ZATECKY,
Respondent.

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Case No. 1:15-cv-02066-WTL-DML

Entry Directing Additional Response Regarding Exculpatory Evidence Claim
The petition of Robert White for a writ of habeas corpus challenges a prison disciplinary
proceeding, ISR 15-07-0106, in which he was found guilty of assault/battery. For the reasons
explained in this entry, a supplemental response must be provided by the respondent.
I. Overview
Prisoners in Indiana custody may not be deprived of credit time, 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); Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011); 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 July 29, 2015, Internal Affairs Officer Poer issued a Report of Conduct charging Mr.
White with assault/battery in violation of Code A-102. Dkt. 13-1. The Report of Conduct refers
to the Report of Investigation and a confidential case file, which detail an attack on offender
James White that resulted in injuries requiring transportation to a hospital. Id.; dkt. 15 (ex parte).
Mr. White was notified of the charge on July 31, 2015, when he was served with the
Report of Conduct and the Notice of Disciplinary Hearing (Screening Report). Dkt. 13-2. The
Screening Officer noted that Mr. White requested a lay advocate. One was provided. Dkt. 13-5.
Mr. White also wanted to call three offender witnesses, James White, Michael Smith, and
Nicholas LzCruze, and requested the video as evidence. Witness offender Michael Smith stated,
“Robert White was not around James White when he was assaulted[.] Robert and James were
friends and got along well.” Dkt. 13-3. Witness offender Nicholas LaCruze stated, “Robert
White #205276 did not participate[] in the assault on James White #248220. Robert White
#205276 is not a STG member. I Nicholas LaCruze #239236 made this statement and statement
(remaining words marked out).” Dkt. 13-4. There is no record of the victim, James White,
providing a statement.
III. Discussion
Mr. White alleges that his due process rights were violated during the disciplinary
proceeding. His claims as stated in his petition overlap but are discerned as follows: 1) the
hearing officer’s finding of guilt was not supported by sufficient evidence because no evidence
suggested that he participated in the assault and there was exculpatory evidence consisting of the
victim’s statement and video (showing he was not present at the time and place of the assault); 2)
he and his lawyer were not allowed to view exculpatory video evidence; 3) there was no

evidence showing that he was a gang member; and 4) the hearing officer failed to consider
exculpatory evidence.
The respondent argues that Mr. White failed to exhaust all of his claims by raising them
in his administrative appeals. In his appeal to the Facility Head, Mr. White stated:

The respondent contends that the only claim raised on appeal was a challenge to the sufficiency
of the evidence. The Court finds that Mr. White’s appeal also included his claim that exculpatory
evidence (the victim’s statement -“Mr. White will also tell you I didn’t touch him” - and the
video) was ignored. Dkt. 13-8. The respondent has not addressed that claim on the merits.
The video report to which Mr. White refers is docket 13-6. The hearing officer reviewed
a video and reported that “[d]ue to the rotation of the camera all I saw was at 1:47 pm I saw
numerous offenders headed toward room 28-2E with their backs to the camera. At 1:48 pm I saw
numerous offenders exit 28-2E and walk away from the camera and it rotated and I lost them.”
Dkt. 13-6.
As noted, there is no record of James White, the victim, providing a witness statement or
any explanation for that evidence not being permitted. “Inmates have a due process right to call
witnesses at their disciplinary hearings when doing so would be consistent with institutional
safety and correctional goals.” Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003) (citing Wolff
v. McDonnell, 418 U.S. 539, 566 (1974)). However, “prisoners do not have the right to call

witnesses whose testimony would be irrelevant, repetitive, or unnecessary.” Pannell v. McBride,
306 F.3d 499, 503 (7th Cir. 2002).
When a prisoner challenges the denial of witnesses in a prison disciplinary proceeding, it
is the prison official’s burden to provide a “justification”—not a conclusion—for the denial.
Ponte v. Real, 471 U.S. 491, 499 (1985); see Wilson v. Davis, 102 Fed. Appx. 37, 38 (7th Cir.
2004) (“The burden is on the state to offer a rational explanation for the denial of an inmate’s
request for witnesses.”). This justification may be “presented to the Court in camera,” but it must
be presented. Ponte, 471 U.S. at 499.
IV. Further Response
The respondent shall have through March 10, 2017, in which to respond to the claim
that the hearing officer failed to consider exculpatory evidence consisting of James White’s
statement and video evidence. In other words, the respondent shall have through that deadline in
which to show cause why Mr. White’s petition should not be granted and the disciplinary
proceeding vacated and set for a rehearing.
IT IS SO ORDERED.
_______________________________
Date: 2/13/17

Distribution:
Electronically registered counsel
ROBERT WHITE
205276
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana