AVERITTE v. BUGHER et al
ENTRY Denying Petition for Writ of Habeas Corpus and Directing Entry of Final Judgment - 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 w as no constitutional infirmity in the proceeding which entitles Mr. Averitte to the relief he seeks. Accordingly, Mr. Averitte's petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Entry shall now issue. Signed by Judge Larry J. McKinney on 8/3/2017. (GSO)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Entry Denying Petition for Writ of Habeas Corpus and Directing Entry of Final
The petition of Derrick Averitte for a writ of habeas corpus challenges a prison
disciplinary proceeding identified as No. IYC 16-01-0032. For the reasons explained in
this Entry, Mr. Averitte’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); Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Webb
v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000).
The Disciplinary Proceeding
On January 7, 2016, Investigator Gaskin wrote a Conduct Report charging Mr.
Averitte with use or possession of a cellular communications or other wireless device.
The Conduct Report states:
On 12-08 & 09 2015 a study was conducted with Shawntech, a
telecommunications company that assisted with a Cellular Interdiction
Operation for the Plainfield Correctional Facility. During this two day
surveillance approximately 22 cell phones were detected operating illegally
within the Facility. Several phone numbers were detected as being called
from a cell phone. 3 of the numbers dialed during the two day test were from
numbers on offender Derrick Averitte #978398 phone list. During an
interview with this inmate he did admit that number ending in 9269 was a
family friend, but he denied using a cell phone during the time of the
Dkt. 11-1 at 1. The Conduct Report concluded by stating, “See report of investigation.”
Id. The Investigation Report states:
On 12-08 & 09 2015 [a] study was conducted with Shawntech, a
telecommunications company that assisted with a Cellular Interdiction
Operation at Plainfield Corr. Facility. During this two day surveillance
operation approx. 22 cell phones were detected as operating illegally within
the facility. Several phone numbers were detected as being cell phone calls
from the North and South dorm area. 3 of the numbers recorded by the
equipment were from the numbers recorded on an IYC inmate phone list.
The numbers came back to Derrick Averitte #978398. During an interview
with this inmate prior to the report coming out we discussed one number
ending in 9269, Averitte did admit that the number ending in 9269 is a family
friend on his phone list. The report list 3 numbers that appears [sic] on
Averitte’s phone list. Offender Averitte denied making any calls, or using a
cell phone during the time of the study. The inmate did not provide any
alternate reason on why his contact information was being used. During on
text transfer the inmate phone replied, “This is Derrick and you are steady
hitting me . . . .”
Dkt. 11-2 at 1.
Mr. Averitte was notified of the charge on January 9, 2016, when he received the
Screening Report. He plead not guilty to the charge and requested the Investigation
Report as evidence.
A hearing was held on January 14, 2016. Mr. Averitte stated that he was not guilty,
noting that “[t]here are a lot of offenders in here from my neighborhood who know me and
know this girl. There are also a lot of ‘Derricks’ in South Dorm.” Dkt. 11-5 at 1. Based
on, among other things, Mr. Averitte’s statement, the staff report, and the Investigation
Report, the hearing officer found Mr. Averitte guilty. The sanctions imposed included a
one-hundred-eighty-day earned-credit-time deprivation and a suspended demotion in
Mr. Averitte appealed to Facility Head and then to the IDOC Final Reviewing
Authority, but both of his appeals were denied. He then brought this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
Although the respondent characterizes Mr. Averitte’s petition as raising only a
sufficiency of the evidence claim, he actually raises two claims. First, he argues that there
was insufficient evidence to find him guilty of use or possession of cellular phone.
Second, he argues that he was not given evidence explaining how the Cellular Interdiction
Operation used by prison officials to identify cell phone use in the prison worked, which
prevented him from adequately defending himself. The Court will address each claim in
Sufficiency of the Evidence
Mr. Averitte advances two primary arguments regarding the sufficiency of the
evidence. First, he contends that there was no evidence that he physically possessed a
cell phone. Second, he maintains that there is reasonable doubt as to his guilt because
the phone number ending in 9269 referenced in the Investigation Report was also on two
other inmates’ phone lists, and he alleges that the person whose number it is denied
knowing Mr. Averitte.
Challenge to the sufficiency of the evidence are governed by the “some evidence”
standard. “[A] hearing officer’s decision need only rest on ‘some evidence’ logically
supporting it and demonstrating that the result is not arbitrary.” Ellison v. Zatecky, 820
F.3d 271, 274 (7th Cir. 2016); see Eichwedel v. Chandler, 696 F.3d 660, 675 (7th Cir.
2012) (“The some evidence standard . . . is satisfied if there is any evidence in the record
that could support the conclusion reached by the disciplinary board.”) (citation and
quotation marks omitted). The “some evidence” standard is much more lenient than the
“beyond a reasonable doubt” standard. Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir.
2002). “[T]he relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56.
As an initial matter, the disciplinary code forbids “[u]se and/or possession” of a
See Indiana Department of Correction Adult Disciplinary Process,
Thus Mr. Averitte’s argument that there is no evidence he physically possessed a cellular
phone is unavailing because the information contained in the Conduct Report and
Investigation Report constitutes “some evidence” that Mr. Averitte used a cellular phone.
The Cellular Interdiction Operation revealed that three of the numbers being called
from a cellular phone within the prison were on Mr. Averitte’s phone list, and Mr. Averitte
admitted to prison staff that one of the numbers was a family friend. Moreover, a text
message was sent from the phone that identified the sender as “Derrick.” While perhaps
not evidence definitely proving that Mr. Averitte was the inmate using the cellular phone
to call those numbers, it is certainly “some evidence” that it was.
Mr. Averitte resists this conclusion by arguing that the evidence does not prove he
was the one making the calls at issue because the numbers called are also on two other
inmates’ phone lists and there are other inmates named Derrick. Even if both of these
assertions are true, it does not mean that there was not “some evidence” of his guilt. The
Seventh Circuit has suggested that evidence showing that an inmate had only a twenty
percent change of being guilty, without more, does not constitute “some evidence” of guilt.
See Austin v. Pazera, 779 F.3d 437, 439 (7th Cir. 2015) (“[I]t seems odd, to say the least,
that someone should be punished when there is an 80 percent probability that he is
innocent.”); but see Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir. 1992) (holding that
evidence showing a twenty-five percent chance of guilt constitutes “some evidence” under
the circumstances). But Mr. Averitte was not merely one of three inmates with the phone
numbers on his call log. The evidence also shows that an inmate used the phone to send
a text message, which acknowledged that the sender was “Derrick.” Taken together,
these facts certainly constitute “‘some evidence’ logically supporting” his guilt “and
demonstrating that the result [wa]s not arbitrary.” Ellison, 820 F.3d at 274; see House v.
Daniels, 637 Fed. Appx. 950, 951 (7th Cir. 2016) (holding that “some evidence” existed
because the evidence did not rest on “shared access alone”—that is, a probability of
guilt—but also additional evidence increasing the likelihood that the specific petitioner
was actually guilty).
Denial of Evidence
Mr. Averitte next argues that he was denied evidence explaining how the Cellular
Interdiction Operation used during the investigation worked such that he could adequately
defend himself. “[W]hen a prisoner contends that he was denied access to evidence
necessary to defend against a disciplinary charge, his claim is properly understood as
one of procedural due process rather than sufficiency of the evidence.” Ellison, 820 F.3d
at 274 (citation and quotation marks omitted).
The problem with Mr. Averitte’s position is that he never requested this evidence
during the disciplinary process. The Screening Report reflects that the only evidence Mr.
Averitte requested was the Investigation Report, see dkt. 14-3 at 1, which he received.
Moreover, the Screening Report states that “[t]he failure to request witness(es) or physical
evidence may waive your right to have the witness’ testimony or physical evidence
presented/considered at your hearing.” Id. Thus Mr. Averitte was aware that his failure
to request any additional evidence could result in a waiver, but never raised his desire for
any evidence in addition to the Investigation Report until after the hearing.
The Seventh Circuit has made clear that an inmate’s due process rights are not
violated by the failure to provide the inmate with evidence that was not requested within
the required timeframe. See Hamilton v. O’Leary, 976 F.2d 341, 346-47 (7th Cir. 1992);
Miller v. Duckworth, 963 F.2d 1002, 1004 n.2 (7th Cir. 1992). Not only did Mr. Averitte
not request the evidence in question on the Screening Report, but he did not request it
up to and through the disciplinary hearing. It thus did not violate his due process rights
to not be provided this evidence.
Accordingly, Mr. Averitte is not entitled to habeas relief on this basis.
“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. Averitte to the relief he seeks. Accordingly, Mr. Averitte’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.
PLAINFIELD - CF
PLAINFIELD CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Abigail T. Rom
OFFICE OF THE ATTORNEY GENERAL
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
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