BAILEY v. BUTTS
ENTRY Regarding the Due Process Right to Call Witnesses at Prison Disciplinary Proceedings and Directing Further Proceedings in this Action - The respondent shall have through February 15, 2017, in which to provide the required justification for d enying Mr. Bailey the ability to call live witnesses during the challenged disciplinary proceeding. Given Mr. Bailey's current projected release date, the Court does not anticipate granting any extensions of time. (See Entry.) Copy to Petitioner via U.S. Mail. Signed by Judge Tanya Walton Pratt on 2/9/2017.(JLS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Entry Regarding the Due Process Right to Call Witnesses at Prison Disciplinary
Proceedings and Directing Further Proceedings in this Action
Presently before the Court is Petitioner Lucas Bailey’s petition for a writ of habeas corpus
challenging a prison disciplinary proceeding that resulted in the loss of ninety days of good-time
credit. Mr. Bailey raises three claims in his habeas petition, one of which is discussed in this Entry.
Mr. Bailey maintains that he was denied due process because his requested witnesses were not
permitted to testify at his disciplinary hearing; they instead submitted written statements. For the
reasons explained, this claim requires further development.
“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).
acknowledged by the respondent, Mr. Bailey requested four witnesses prior to his disciplinary
proceeding, each of whom provided a written statement prior to the challenged disciplinary
proceeding in lieu of live testimony. The respondent offers two reasons why this did not violate
Mr. Bailey’s due process rights.
First, the respondent argues that Mr. Bailey “submitted no evidence indicating that any
testimony offered in person would be anything other than repetitive based on the statement given
by each of the witnesses.” Filing No. 11 at 8. Similarly, the respondent asserts that Mr. Bailey
“does not suggest how in person testimony was required when the witness statement addressed the
information he sought.” Filing No. 11 at 8. In short, the respondent argues that written witness
statements are always an adequate substitute for live testimony. But the Seventh Circuit has
repeatedly rejected this; only when live testimony is not otherwise feasible do written witness
statements comport with due process. See Whitlock v. Johnson, 153 F.3d 380, 388 (7th Cir. 1998)
(“We are . . . unconvinced by the prison’s assertion that its policy of interviewing requested
witnesses and summarizing their testimony in an unsworn report is a legitimate means of ‘calling
a witness’ even when live testimony would be feasible.”); see also Doan v. Buss, 82 Fed. Appx.
168, 170-71 (7th Cir. 2003) (rejecting the contention that “under Wolff oral testimony is not
required as long as written statements are obtained”); Ashby v. Davis, 82 Fed. Appx. 467, 471 (7th
Cir. 2003) (holding that “[t]he submission of a written [witness] statement is not by itself a valid
reason for not appearing,” and explaining that “[l]ive testimony is the presumption absent a valid
reason for proceeding differently”).
This leads to the respondent’s second argument—namely, that there was a valid reason for
not permitting live witness testimony at Mr. Bailey’s disciplinary hearing. Specifically, the
respondent argues that permitting live testimony “would have threatened the security of the facility
and put the offenders and officers at risk of harm.” Filing No. 11 at 8. While safety concerns
are a valid justification for denying an inmate the ability to present live witnesses, see Wolff, 418
U.S. at 566, the respondent has merely asserted that this justification applies. This conclusory
assertion is not enough. To conclude otherwise, the Supreme Court has recognized, would
eviscerate the already limited right to call witnesses:
[T]o hold that the Due Process Clause confers a circumscribed right on the inmate
to call witnesses at a disciplinary hearing, and then conclude that no explanation
need ever be vouched for the denial of that right, either in the disciplinary
proceeding itself or if that proceeding be later challenged in court, would change
an admittedly circumscribed right into a privilege conferred in the unreviewable
discretion of the disciplinary board. We think our holding in Wolff, meant
something more than that.
Ponte v. Real, 471 U.S. 491, 498-99 (1985); see Hayes v. Walker, 555 F.2d 625, 630 (7th Cir.
1977) (“If we were to allow broad unsupported findings as were offered in the present case to
support the [exclusion of the prisoner’s witnesses], a prisoner’s limited right to call witnesses could
be arbitrarily denied in any case and thereby be rendered meaningless.”).
Therefore, 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, 471 U.S. at 499; 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.
In sum, at least two principles must be considered when an inmate challenges the denial of
his request for witnesses to testify at his prison disciplinary proceeding. First, “[l]ive testimony is
the presumption absent a valid reason for proceeding differently,” and “[t]he submission of a
written [witness] statement is not by itself a valid reason for not” permitting live testimony. Ashby,
82 Fed. Appx. at 471. Second, it is the prison official’s burden to provide a specific justification
on a case-by-case basis for why the inmate’s witnesses were not permitted to provide live
testimony at the disciplinary hearing. See Ponte, 471 U.S. at 499; Wilson, 102 Fed. Appx. at 38.
The respondent shall have through February 15, 2017, in which to provide the required
justification for denying Mr. Bailey the ability to call live witnesses during the challenged
disciplinary proceeding. In providing the required justification, the respondent should ensure that
the justification is sufficiently particularized—that it represents “a determination . . . made on a
case-by-case basis that requested witnesses pose institutional problems.” Forbes v. Trigg, 976
F.2d 308, 317 (7th Cir. 1992); see Hayes, 555 F.2d at 630 (rejecting a prison’s justification for
excluding witnesses because it was “only broad conclusory findings of possible hazard both to
potential witnesses and to institutional security which applied to all of the proposed witnesses on
The Court’s decision to provide respondent this additional opportunity is guided by the
Seventh Circuit’s decision to do the same when similar errors have occurred in other cases. See,
e.g., Ashby, 82 Fed. Appx. at 471. However, the respondent should not rely on this additional
opportunity in every case, given that it is his burden to provide the justification the law requires.
See Ponte, 471 U.S. at 499; Wilson, 102 Fed. Appx. at 38.
Given Mr. Bailey’s current projected release date, the Court does not anticipate granting
any extensions of time.
IT IS SO ORDERED.
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Electronically Registered Counsel
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