FOX v. SUPT
Entry Denying Petition for Writ of Habeas Corpus - The petition of Ramon Fox for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. IYC 16-01-0275. For the reasons explained in this entry, Mr. Fox's habeas p etition must be denied. "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 proceedin gs, or sanctions involved in the events identified in this action, and there was no constitutional infirmity in the proceeding which entitles Mr. Fox to the relief he seeks. Mr. Fox's petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Entry shall now issue. (See Entry). Copy to Petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 7/19/2017.(APD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
) Case No 1:16-cv-00808-JMS-MPB
Entry Denying Petition for Writ of Habeas Corpus
The petition of Ramon Fox for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as No. IYC 16-01-0275. For the reasons explained in this entry, Mr. Fox’s
habeas petition must be denied.
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, 64445 (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).
B. The Disciplinary Proceeding
On January 27, 2016, Investigator P. Prulhiere wrote a Report of Conduct in case IYC 1601-0275 charging Mr. Fox with violation of state law, I.C. 35-42-2-1.5, aggravated battery. The
Conduct Report states:
As a result of an investigation completed on January 15, 2016, there is sufficient
evidence to charge Offender Fox with a violation of State Law IC 35-42-2-1.5 (1)
aggravated battery, a level 3 felony.
The Investigation Report states:
On December 18, 2015 at approximately 5:50 am (Ref: incident report filed with
same date), Officer R. Thomas was advised by an offender in Housing Unit South
F Unit that an offender was injured and needed medical care. This offender’s
condition indicated that he had been assaulted. From this point on, this offender
will be referred to as the victim. The victim had injuries to his eyes, face, torso and
arms that were bleeding and bruised. The victim also had wounds consistent with
having been stabbed with a spike type weapon. Supervisory staff attempted to
question the victim about his condition, but due to incoherent behavior and speech,
no accurate information was obtained. The victim was evaluated by Plainfield
Correctional Facility medical staff and it was determined that the victim needed to
be taken to an Emergency Room for treatment.
Upon discovery of the victim’s condition, Housing Unit South was placed on
Lockdown status. Investigator Feldkamp and Lieutenant Kent began a systemic
process of interviewing Offenders assigned to Housing Unit South Dorm, F Unit.
Leads were gradually acquired to aid in the process of reviewing closed circuit
surveillance video. Information received from unit interviews provided a possible
location and time of the victim’s assault, between 7:00 pm and 8:00 pm on
December 17, 2015 near or at bed location F4-8L or F4-9L. I, Investigator
Prulhiere, began a systematic process of reviewing the unit video and did find
activity occurring near the location that was provided. After observing this activity
(the activity did appear to be an active assault), I attempted to locate the victim on
unit video. At approximately 6:54 pm, I observed the victim near his assigned bunk
moving in a normal manner. I observed the victim walk to the row of bunks into
the aisle between rows F3 and F4 stopping between beds F4-10 and F4-11. At
approximately 7:01 pm, the victim walked to the space between F4-8/F4-9 and sat
down. The victim remained there until the observed time of the assault which was
found to be approximately 7:33 pm. At approximately 7:06 pm, Housing Unit South
began their recreation movement to the facility gym. During this time, it was found
in the review of surveillance video, that four offenders from Housing Unit South G
Unit evaded security and entered into Housing Unit South F Unit. Three identified
suspects and Offender Ramon Fox 932844 entered F unit and blended into the unit
with other offenders. (All of the suspects and victim are named in case number 16IYC-0007. A key for the names is included separately in the case file). As time
approached 7:30 pm, these four (4) offenders began to assume what appeared to be
preplanned positions in proximity to the victim. Suspect 4, from the middle
camera’s perspective went to a position that was just to the left of the bed
area/latrine hallway entrance door and waited. Suspect 1 went to the victim’s
current located standing at the opening between beds F4-8 and F4-9 directly in front
of the victim. Offender Fox, suspect 2, stood directly in the middle camera’s view
with Suspect 3 speaking to an F Unit Offender. At approximately 7:33 pm, suspect
2 and suspect 3 proceed to the area where the victim was currently located.
Suspect 4, moved in behind Offender Fox, suspect 2 and suspect 3 which placed
the three of them with suspect 1 in the area with the victim. Using video
surveillance, I observed that Offender Fox, suspect 2, was the first aggressor to
move in and attack the victim. From approximately 7:33pm consistently through
7:39 pm the assault barrage from these four offenders was made on the victim. The
assault was contained to the space between F4-8L and F4-9L, included F4-9L and
merged into the space between F4-9L and F4-10L.
Interviews were conducted with all four suspects and the victim. These interviews
yielded confirmation that all of the suspects identified on unit video were active
participants in the incident. All of these suspects struck the victim with closed fists,
kicked or held the victim while the others struck or kicked the victim. Upon a more
clear review of the video, using this information, at approximately 7:38:40 I
observed Suspect 4, begin a highly active kicking barrage on the victim that
continued for approximately 30 seconds. As a result of this investigation, there is
sufficient evidence to charge Offender Fox with a violation of State Law IC35-422-1.5(1) Aggravated Battery, a level 3 felony.
[Dkt. 13-2, at pp. 1-2].
On January 31, 2016, Mr. Fox was notified of the charge and was given a copy of the
Conduct Report and the Notice of Disciplinary Hearing “Screening Report.” He was notified of
his rights and pled not guilty. He requested the victim be called as a witness. He also requested the
video of the assault. He alleges it would show he was only in the vicinity of the area where the
assault occurred. [Dkt. 13-3].
The hearing officer reviewed the requested video and wrote a summary that stated,
On the date of 2/6/2016 at approximately 2:00pm. I, DHO L. Glenn did review
video of an incident that took place on 12/17/2015 at approximately 7:30 pm that
involved offender Fox, Ramon #932844. The video was viewed in confidentiality
in the I.I. Office as part of I.I. case file 16-IYC-0007. The video that was viewed is
consistent with the Report of Investigation of Incident that is attached to the Report
of Conduct for Case Number IYC 16-01-0275 and I am able to positively identify
offender Fox, Ramon #932844 during the video review.
[Dkt. 13-4]. The hearing officer conducted a disciplinary hearing in IYC 16-01-0275 on February
20, 2016. Mr. Fox’s comment was “I know I didn’t assault him, I didn’t see in the write-up that
they clearly observed me assault anyone. I went down there to talk to someone. I think this is pure
circumstantial speculation.” [Dkt. 13-5]. The hearing officer found Mr. Fox guilty of a violation
of federal/state/local law. He considered all evidence including the offender’s statement, the IA
casefile, and the video. The hearing officer recommended the following sanctions that were
approved: a transfer to a more secure facility; 360 days of disciplinary segregation; restitution in
the amount of $9,611.72; 360 days of earned credit time deprivation; a demotion from credit class
2 to credit class 3; and the imposition of a suspended sentence in IYC 15-12-0128 of a demotion
from credit class 1 to credit class 2. [Dkt. 13-5].
Mr. Fox appealed the disciplinary proceeding through the administrative process. The Final
Reviewing Authority modified the charges from a violation of state law to a violation of Code A102, with the same sanctions. [Dkt. 13-6]. He now seeks relief pursuant to 28 U.S.C. § 2254
arguing that his due process rights were violated.
Mr. Fox is not entitled to habeas relief because he was afforded due process. He raises three
issues in his petition: 1) he was denied the right to a fair hearing; 2) he was denied the right to
present documentary evidence; and, 3) he received an inadequate postponement.
First, Mr. Fox argues he was denied the right to a fair hearing because the Internal Affairs
Officer and the Hearing Officer provided false facts. He bases this argument on alleged
discrepancies in the evidence such as the video review, the investigation report, and the conduct
report. This argument is interpreted by the Court as a challenge to the sufficiency of the evidence.
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.
Here, Mr. Fox was found guilty of battery causing serious injury. The evidence in this
action shows that Mr. Fox was implicated by another individual also involved in the assault. This
individual confirms in an interview, that is part of the IA case file relied on by the hearing officer,
that Mr. Fox spearheaded and coordinated the attack as payment for a debt. The victim had injuries
to his eyes, face, torso and arms. The victim also had wounds consistent with having been stabbed
with a spike type weapon. This is some evidence to support a guilty finding.
Second, Mr. Fox argues he was denied the right to present documentary evidence – the
video summary. The Court interprets this argument as a challenge to the brevity of the video
summary. Although the video summary was brief, the report of investigation of incident, attached
to the conduct report of which Mr. Fox was provided a copy, described in detail the investigation
of the incident as well as the evidence used to charge and find Mr. Fox guilty of the charge of
battery. Mr. Fox was provided this evidence, and was not denied an opportunity to present evidence
as he claims. Moreover, the Court reviewed the video evidence and determined that it is neither
exculpatory nor inculpatory. In fact, the Court was unable to see an assault on the video submitted
by the respondent. 1 Because there is no evidence of an assault on the video, the video cannot be
characterized as exculpatory. Mr. Fox was entitled only to exculpatory evidence, and therefore the
brief nature of the video summary did not constitute a due process violation. Jones v. Cross, 637
F.3d 841, 848 (7th Cir. 2001).
Mr. Fox also argued the reference to an unknown offender in the investigation report was
a violation of due process. However, there is no reference to an unknown offender in the conduct
report, report of investigation of incident, or video summary. And in the evidence provided to the
Court, all of the suspects involved in the attack are identified by name. As such there was no due
process violation in this respect and Mr. Fox is not entitled to habeas relief.
Finally, Mr. Fox argues the postponement of his hearing was inadequate and refers the
Court to pages 3 and 4 of the disciplinary appeal. Mr. Fox’s argument in the disciplinary appeal
Because the Court did not see an assault on the video evidence or on the still shots of the assault
submitted by the respondent, [dkts. 15, 24], the Court did not rely on the video in evaluating Mr.
Fox’s sufficiency of the evidence claim. Rather, as discussed in Section C above, the only evidence
the Court considered was the interview with the individual involved in the assault that implicated
The Court interprets this argument as one challenging the time frame between the issuance
of the screening report and the disciplinary hearing. Due process is satisfied with the issuance of
advance written notice of the charge. Mr. Fox received the screening report on January 31, 2016,
the disciplinary hearing was held on February 20, 2016. Mr. Fox received advance written notice
of the charge. There was no due process violation in this regard and Mr. Fox is not entitled to
“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 Mr. Fox to the relief he seeks.
Accordingly, Mr. Fox’s petition for a writ of habeas corpus must be denied and the action
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
Marjorie H. Lawyer-Smith
INDIANA ATTORNEY GENERAL
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