BAILEY v. BUTTS

Filing 18

ENTRY GRANTING PETITION FOR WRIT OF HABEAS CORPUS - For the reasons explained above, Mr. Bailey's Petition for Writ of Habeas Corpus (Filing No. 1 ) is GRANTED. The disciplinary sanctions imposed as a result of prison disciplinary proceeding NCF 16-04-0263 are VACATED, meaning his lost good-time credits and demotion of credit class must be immediately restored, and his new release date must be calculated accordingly. Final judgment consistent with this Entry shall now issue. (See Entry.) Copy to Petitioner via U.S. Mail. Signed by Judge Tanya Walton Pratt on 3/09/2017.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LUCAS BAILEY,
Petitioner,
v.
KEITH BUTTS,
Respondent.

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Case No. 1:16-cv-02625-TWP-MJD

ENTRY GRANTING PETITION FOR WRIT OF HABEAS CORPUS
This matter is before the Court on pro se Petitioner Lucas Bailey’s (“Mr. Bailey”) Petition
for Writ of Habeas Corpus challenging a prison disciplinary proceeding identified as NCF 16-040263, which resulted in the loss of ninety days of good-time credit and a demotion in credit class.
(Filing No. 1.) Mr. Bailey raises three claims in his Petition, one of which is dispositive. 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 in this Entry, the Court concludes that Mr. Bailey was denied due process and
his Petition for habeas corpus is granted.
I. OVERVIEW
“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).

As

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 at the hearing.
In the initial round of briefing regarding Mr. Bailey’s claim, the Respondent offered two
reasons why the proceedings did not violate Mr. Bailey’s due process rights. (See Filing No. 11
at 6-8.) The Court explained in its Entry dated February 9, 2017 (Filing No. 14), why neither of
those two reasons were sufficient. First, the Court noted that the Seventh Circuit has repeatedly
rejected the argument that written witness statements are an adequate substitute for live testimony.
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”).
The Respondent’s second argument was also rejected.

The Court explained that

Respondent’s conclusory assertion that permitting live testimony from other inmates “would have
threatened the security of the facility and put the offenders and officers at risk of harm,” (Filing
No. 11 at 8), was insufficient. While safety concerns are a valid justification for denying an inmate
the ability to present live witnesses, see Wolff, 418 U.S. at 566, a conclusory assertion that security
concerns were present essentially forecloses judicial review of whether the petitioner’s due process
rights were infringed, see Ponte v. Real, 471 U.S. 491, 498-99 (1985); see also Hayes v. Walker,

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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, the Court made clear that it was the Respondent’s burden to provide a “justification”—
not a conclusion—for the denial of witnesses. 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.”).
In light of the deficiencies in the Respondent’s submission, the Court gave the Respondent
an additional period of time in which to provide the required justification for denying Mr. Bailey
the ability to call live witnesses during the challenged disciplinary proceeding. The Court made
clear that, in providing the required justification, the Respondent should ensure that the
justification is sufficiently particularized—that it represents “a determination . . . made on a caseby-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 plaintiff’s
list”).
The Respondent submitted a supplemental brief and evidence (Filing No. 15), and Mr.
Bailey submitted a reply brief (Filing No. 17).
II. ANALYSIS
A.

Procedural Default
In the Respondent’s supplemental brief, he argues for the first time that Mr. Bailey’s

witness claim is procedurally defaulted because he did not raise it during the administrative appeals

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process (Filing No. 15 at 1-2). The Respondent is correct that, to succeed on a petition for a writ
of habeas corpus, a petitioner must first “exhaust[] the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). Since “Indiana does not provide judicial review of decisions
by prison administrative bodies, . . . the exhaustion requirement in 28 U.S.C. § 2254(b) is satisfied
by pursuing all administrative remedies.” Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002).
However, “[p]rocedural default is an affirmative defense and can be waived.” Weddington v.
Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). “As with any other right or defense, the State will
waive procedural default by intentionally relinquishing its right to assert that defense, either
explicitly or implicitly.” Blackmon v. Williams, 823 F.3d 1088, 1100 (7th Cir. 2016) (citation and
quotation marks omitted).
Here, the Respondent explicitly waived its reliance on Mr. Bailey’s alleged failure to
exhaust and the consequential procedural default in his initial return to the Court’s show cause
order. Specifically, the Respondent stated that Mr. Bailey “exhausted his available administrative
appeals with regard to the issues raised in the Petition,” and then went on to address the merits of
this claim. (Filing No. 11 at 2.) Accordingly, the Respondent has waived its affirmative defense
that this claim is procedurally defaulted.
The Court notes, however, that even if this defense was not waived, the Court would reject
it. This is because the Respondent has failed to submit sufficient evidence to refute Mr. Bailey’s
contention that he raised this issue in his final administrative appeal. The Court was presented
with only the decision from the final appeal—which does not settle the matter one way or
another—and thus it is not clear whether or not this issue was raised in the final appeal. For this
additional reason, Mr. Bailey’s claim is not deemed defaulted and the Court will address it on the
merits.

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B.

Merits
The Respondent submitted additional evidence in an attempt to comply with the Court’s

order requiring a sufficiently particularized justification for denying Mr. Bailey’s request for live
witnesses. The Respondent’s evidence is a declaration from Tyrone Thompson, the Disciplinary
Hearing Chairman for the disciplinary hearing at issue. He attests the following: at the time of
the hearing Mr. Bailey was housed in the Restricted Housing Unit; Mr. Bailey was restrained via
handcuffs behind the back and in leg restraints during his hearing; and “[i]t is common correctional
practice, for the safety and security of offenders and staff, to not intermingle restrained and
unrestrained offenders.” (Filing No. 15-1 at 1.)
This evidence is insufficiently particularized to justify denying Mr. Bailey live testimony
from his witnesses. The Court made clear in its previous order that, in providing the required
justification, the Respondent should ensure that the justification 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) (emphasis added). All that the Respondent has offered
here is the fact that Mr. Bailey was shackled during the hearing and that it is a “common
correctional practice” for safety and security reasons to “not intermingle restrained and
unrestrained offenders.” (Filing No. 15-1 at 1.) But sole reliance on a “common correctional
practice” by definition does not evince a case-by-case decision as to whether live witness
testimony is feasible.
Moreover, even if the common correctional practice not to intermingle restrained and
unrestrained offenders is in theory a sufficient justification, there is no evidence regarding whether
the requested inmate witnesses would be unrestrained at the hearing, and if they would, whether
they would be restrained to avoid security concerns. The Seventh Circuit has made clear that

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prison officials must “look at each proposed witness and determine whether or not he should be
allowed to testify.” Hayes, 555 F.2d at 630. Yet all that is offered here is a broad justification that
was applied (assuming that the witnesses would not be restrained) to all of Mr. Bailey’s requested
witnesses. This is simply not enough. See id. (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 plaintiff’s
list”).
In sum, the Respondent has been given two opportunities to justify denying Mr. Bailey live
testimony from his requested witnesses at the disciplinary hearing, but has failed to sufficiently do
so. Accordingly, the denial of live witnesses without sufficient justification resulted in the
violation of Mr. Bailey’s due process rights.
III. CONCLUSION
For the reasons explained above, Mr. Bailey’s Petition for Writ of Habeas Corpus (Filing
No. 1) is GRANTED. The disciplinary sanctions imposed as a result of prison disciplinary
proceeding NCF 16-04-0263 are VACATED, meaning his lost good-time credits and demotion of
credit class must be immediately restored, and his new release date must be calculated
accordingly. Final judgment consistent with this Entry shall now issue.
SO ORDERED.
Date: 3/09/2017

DISTRIBUTION:
Lucas Bailey, #203083
New Castle Correctional Facility
1000 Van Nuys Road
New Castle, Indiana 47362

Kyle Hunter
OFFICE OF INDIANA ATTORNEY GENERAL
[e-mail]

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