BOWERS v. SUPERINTENDENT

Filing 42

Entry Discussing Evidentiary Hearing, Denying Petition for Writ of Habeas Corpus, and Directing Entry of Final Judgment - The petition of Eugene Bowers for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. WVD 16-0 1-0084. For the reasons explained in this Entry, Mr. Bowers's habeas petition 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 w as 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. Bowers to the relief he seeks. The Court concludes that Mr. Bowers received advance written notice of the charges, did not suffer a double jeopardy violation, waived his right to attend the disciplinary hearing, and any denial of evidence or witnesses did not violate his due pro cess rights as he has failed to demonstrate that this error was harmful. Accordingly, Mr. Bowers'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). Signed by Judge Jane Magnus-Stinson on 1/2/2019.(JDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
EUGENE BOWERS,

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Petitioner,
v.
WARDEN,
Respondent.

No. 1:17-cv-01695-JMS-TAB

Entry Discussing Evidentiary Hearing,
Denying Petition for Writ of Habeas Corpus,
and Directing Entry of Final Judgment
The petition of Eugene Bowers for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as No. WVD 16-01-0084. 1 For the reasons explained in this Entry, Mr.
Bowers’s habeas petition must be denied.
I. Findings of Fact
A. Procedural History
The disciplinary action that underlies Mr. Bowers’s habeas petition began with a January
19, 2016 Conduct Report, in which Matthew Siekkiner charged Mr. Bowers with threatening –
B213. The Conduct Report states:
On 1-15-2016 at approximately 2:25 pm, Offender Bowers was in session in
FHU Retherm. He became frustrated due to being denied transfer to CCU via
mental health. At which point he stated, “You don’t understand, with the way
things are going they ‘officers’ will put hands on me. Then I will have to kill a
mother fucker.[”]
Dkt. 6-1.

1

Mr. Bowers currently has two petitions for writ of habeas corpus pending before this Court
challenging disciplinary proceedings at Wabash Valley Correctional Facility (Wabash Valley).
WVD 16-01-0084 is pending in this action. WVD 16-01-0085 is pending in Bowers v. Warden,
1:18-cv-271-JMS-TAB.
1

Mr. Bowers previously filed a petition for writ of habeas corpus in Bowers v. Brown, 2:16cv-148-JMS-MJD, challenging the disciplinary proceedings in WVD 16-01-0084. In that petition,
Mr. Bowers stated that he did not receive written notice of the charges at least twenty-four hours
before the disciplinary hearing. The respondent vacated the sanctions on March 6, 2017, subject
to rehearing. Id., dkt. 13-1. The Court dismissed the petition as moot on March 9, 2017, after the
respondent filed a motion to dismiss. Id., dkt. 13; dkt. 14. After the Court’s dismissal of Mr.
Bowers’s initial petition, the Indiana Department of Corrections (“IDOC”) began disciplinary
proceedings related to WVD 16-01-0084 anew, which are outlined below.
B.

The Disciplinary Proceeding

In March 2017, Officer Shaye Byers was the conduct adjustment board screening officer
at New Castle Correctional Facility (New Castle). 2 As screening officer, Officer Byers reviews the
conduct reports with the offenders, explains the charges, notifies the offenders of their rights,
determines whether the offenders want to call any witnesses or present any evidence, obtains their
pleas, and notifies offenders of the date of the disciplinary hearing. 3 The IDOC has a screening
checklist that the screening officer uses during screening. Ex. 2, p. 7. 4 The purpose of the checklist
is to ensure that the screening officer follows the screening guidelines. When screening is
completed, the screening officer gives the checklist to the hearing officer.

2

The incidents that give rise to the conduct report occurred at Wabash Valley Correctional Facility.
Mr. Bowers was transferred to New Castle on February 15, 2016.
3

This process is commonly referred to as screening.

4

Exhibit 2 was introduced by the respondent without objection at the evidentiary hearing.
2

On March 8, 2017, Sgt. Logan escorted Mr. Bowers into a conference room at New Castle.
Officer Byers was in the room when Mr. Bowers arrived. 5 Mr. Bowers sat down, and Officer Byers
immediately notified him of the order issued on March 6, 2017 by J. Lyttle vacating the sanctions
imposed in WVD 16-01-0084 and setting the matter for a rehearing. Ex. 1, p. 8; Bowers v. Brown,
2:16-cv-148-JMS-MJD, dkt. 13-1. Although Mr. Bowers had previously read the letter from
Lyttle, he stated he was not going to sign the document and directed Officer Byers’s attention to
the entry issued by this Court that dismissed the first disciplinary proceedings as moot when the
IDOC vacated the sanctions. Officer Byers refused to read the Court’s entry. Officer Byers then
read each conduct report to Mr. Bowers.
However, at some point in the screening process, Mr. Bowers stopped Officer Byers and
refused to proceed with screening. Mr. Bowers again refused to sign the document setting the
matter for rehearing, so Officer Byers told him to leave. Officer Byers wrote on each conduct
report that Mr. Bowers refused screening. Ex. 2, p. 2. Officer Byers also wrote on the screening
report that Mr. Bowers refused screening. Ex. 2, p. 3. Sgt. Logan signed next to where Officer
Byers wrote “refused.” Id. In the box where the offender’s signature is to appear, Officer Byers
also wrote “refused” and Sgt. Logan’s signature appears below that. Id. Copies of the screening
report and conduct report are sent back with the offender once the screening process is over. If the
offender is restrained, it is Officer Byers’s habit to send the papers back with the escorting officer.

5

Mr. Bowers and Officer Byers both state that Sgt. Logan remained in the conference room but
Sgt. Logan states he escorted Mr. Bowers to the room and stood outside. Sgt. Logan does not have
a good memory of this event. Sgt. Logan has no independent knowledge of whether Mr. Bowers
refused screening. He signed his name on the conduct report and screening report based on Officer
Byers’s statement to him that Mr. Bowers refused screening. However, Sgt. Logan assumed that
Mr. Bowers refused screening because he left the conference room before being instructed to do
so by staff.
3

On Mr. Bowers’s screening checklist in WVD 16-01-0084, Officer Byers verified Mr.
Bowers’s name and IDOC number. Ex. 2, p. 7. She circled “no” to the question “Does the offender
wish to be screened[.]” Id. Then for the next seven questions that followed, Officer Byers wrote
“refused to be screened.” Id.
Mr. Bowers states that he never received the conduct report or screening report relating to
disciplinary proceeding WVD 16-01-0084 and was never given an opportunity to sign them. Ex.
2, pp. 2-3. Mr. Bowers also states he never received a copy of the notices of lay advocate or
witness. Ex. 2, p. 4. Mr. Bowers states that he did not refuse to sign these documents.
A disciplinary hearing was held on March 15, 2017, for both WVD 16-01-0084 and WVD
16-01-0085. IDOC employees, Officers Nickoe Rucker and Donald Taylor, arrived at Mr.
Bowers’s cell on March 15, 2017 to escort him to the disciplinary hearing. They instructed him to
cuff up and he told them he was not leaving his cell. Officers Rucker and Taylor signed the report
of disciplinary hearing which stated that Mr. Bowers refused to attend the disciplinary hearing.
Dkt. 6-5. A hearing was held in Mr. Bowers’s absence and he was found guilty of threatening in
WVD 16-01-0084. Id.
Officer Thompson joined Officers Rucker and Taylor on March 15, 2017, to escort Mr.
Bowers to his disciplinary hearing. Mr. Bowers refused to leave his cell. Officer Thompson signed
the bottom of the report of disciplinary hearing which stated that Mr. Bowers refused to attend the
disciplinary hearing. Id. IDOC staff do not force an offender to attend a disciplinary hearing.
The disciplinary hearing was held on March 17, 2017. Based on the staff reports, the
hearing officer found Mr. Bowers guilty of threatening. The grievous sanctions imposed included
90 days of earned credit-time deprivation and demotion in credit class from 2 to 3. Dkt. 6-5.

4

Mr. Bowers appealed to the Facility Head and his appeal was denied. Dkt. 6-6. He appealed
to the IDOC Final Reviewing Authority and his appeal was denied. Dkt. 6-7. Mr. Bowers then
brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
C. Mr. Bowers’s Petition and the Evidentiary Hearing
In his petition, Mr. Bowers argues that he did not receive written notice of the charges at
least twenty-four hours before the disciplinary hearing. The respondent responded by introducing
a Screening Report dated March 8, 2017, which states that Mr. Bowers was notified of the
threatening charge but refused screening. Dkt. 6-2.
The Court issued an Entry Discussing the Need for Evidentiary Hearing or Vacation of
Disciplinary Sanctions. Dkt. 15. The respondent elected to proceed with an evidentiary hearing.
Mr. Bowers was appointed counsel and a hearing was held on September 20, 2018. Mr. Bowers
appeared in person and by counsel, Mario Garcia and Terry Tolliver. The respondent was
represented by Deputy Attorney General David Arthur. The parties submitted proposed findings
of fact and conclusions of law.
II. Conclusions of Law
In his petition, Mr. Bowers raises three grounds. Specifically, Mr. Bowers alleges: 1) a due
process violation because he was never given advance written notice of the charges and was denied
the opportunity to present witnesses and evidence; 2) a double jeopardy violation because he was
serving two different commitments when each disciplinary hearing occurred; and 3) a due process
violation because he was forced to participate in a disciplinary hearing despite not being screened
and he was not permitted to present witnesses and evidence.

5

A.

Ground One – Due Process at Screening

In ground one, Mr. Bowers argues that he was not given advance written notice of the
charge and was not allowed to request witnesses and evidence at screening. 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).
1. Advance Written Notice
Based on the evidence presented at the evidentiary hearing, the Court finds that Officer
Byers did not complete the IDOC screening checklist. Ex. 2, p. 7. 6 While proper completion of the
IDOC checklist ensures that inmates are properly advised of their rights, completion is not
necessary to comport with the protections in Wolff. And the Wolff protections are the only issues
reviewable here. With respect to advance written notice, the Court finds that Mr. Bowers had

6

Based on Mr. Bowers’s history in these (and other) disciplinary proceedings, the Court is
incredulous that the IDOC did not take better care to ensure that Mr. Bowers was thoroughly
screened the second time around. Even if Mr. Bowers refused to sign the conduct report or
screening report, the IDOC needed to take care that the screening staff went through the
disciplinary process checklist. For example, a witness in the room or a video recording of the
screening staff person presenting the conduct report to Mr. Bowers and notifying him of his due
process rights would have been helpful. While the Court concludes that Mr. Bowers did receive
notice of the charges here, the IDOC did not manage the second disciplinary proceedings well.
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advance written notice of the charges because this was the second time he received a conduct
report on the same charge and his protests concerning his (mis)understanding 7 of the Court’s
dismissal in the earlier related action establish that he knew exactly what conduct report was at
issue. Mr. Bowers previously received the conduct report attached to the respondent’s response
in Bowers v. Brown, 2:16-cv-148-JMS-MJD. And the screening report and conduct reports are
identical in the current proceedings and the initial proceedings.
Moreover, the Court does not find Mr. Bowers credible. He testified that on previous
occasions in relation to different disciplinary proceedings he refused to sign the paperwork
approximately twenty percent of the time. He has also been through the disciplinary proceeding
process more than 15 times and knows that IDOC staff will be handing him papers to sign. In fact,
on previous occasions, Officer Byers gave Mr. Bowers papers to sign and he requested witnesses,
a lay advocate, and he was given twenty-four hours’ notice of when the disciplinary hearings would
be held. Mr. Bowers cannot refuse to participate in the screening process and then call foul when
the process continues without him.
2. The Right to Present Witnesses and Evidence
A more significant concern presented by the circumstances of the failed screening is that
Officer Byers did not notify Mr. Bowers of his right to present evidence and witnesses. Even this
failure will not entitle Mr. Bowers to relief, as due process only requires access to witnesses and
evidence that are exculpatory. Rasheed–Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992).

7

Mr. Bowers misinterprets the previous Entry from this Court in Bowers v. Brown, 2:16-cv-148JMS-MJD, dkt. 14. The Entry dismissed the petition for writ of habeas corpus that challenged the
disciplinary sanctions in WVD 16-01-0084 because the respondent notified the Court that he
vacated the sanctions. Mr. Bowers relied on the Court’s Entry for the proposition that the IDOC
was not permitted to set this matter for rehearing, but the Entry did not prevent or prohibit the
IDOC from holding a rehearing based on the same report of conduct.
7

“Exculpatory” in this context means evidence that “directly undermines the reliability of the
evidence in the record pointing to [the prisoner’s] guilt.” Meeks v. McBride, 81 F.3d 717, 721 (7th
Cir. 1996). The denial of the right to present evidence will be considered harmless, unless the
prisoner shows that the evidence could have aided his defense. See Jones v. Cross, 637 F.3d 841,
847 (7th Cir. 2011).
Mr. Bowers has never asserted that he would have presented exculpatory evidence but was
prevented from doing so. In fact, throughout these proceedings, Mr. Bowers has never proffered
what witnesses or evidence he was prevented from presenting as a result of the alleged failure to
provide him with advance notice of the hearing. The Court concludes that any denial of the right
to present evidence was harmless because Mr. Bowers failed to show how the evidence could have
aided his defense.
Accordingly, Mr. Bowers is not entitled to relief on this ground.
B. Ground Two – Double Jeopardy
In ground two, Mr. Bowers claims that he was subjected to a double jeopardy violation
because the rehearing on the instant charge occurred when he was under a different commitment
than he was under when the original disciplinary hearing took place. More specifically, he claims
he was serving a sentence under Cause No. 49G06-0008-CF-149750 when the original sanctions
were imposed but was serving a sentence under Cause No. 49F24-1211-FD-79190 when the
sanctions were imposed at rehearing. He argues he filed a petition for restoration of good time
credit but was denied because he was serving a new commitment.
Mr. Bowers’s argument fails to acknowledge that the sanctions imposed from the original
disciplinary conviction were vacated when the rehearing was ordered. Because all lost credit time
and credit class demotions were restored prior to the rehearing, Mr. Bowers did not suffer a loss
of liberty interest with respect to the initial disciplinary proceedings.
8

Moreover, the Seventh Circuit has long held that “disciplinary proceedings do not implicate
double jeopardy concerns.” United States v. Morales, 312 Fed. Appx. 823, 824 (7th Cir. Feb. 20,
2009) (inmate could be disciplined by prison and prosecuted by the government for same conduct);
Meeks v. McBride, 81 F.3d 717, 722 (7th Cir. 1996) (“an acquittal in an earlier prison disciplinary
hearing is no bar to a subsequent hearing to consider the very same charge.”). “If an acquittal in
an earlier hearing were to preclude a subsequent hearing on the same charge, the overriding interest
of prison administrators to act swiftly to maintain institutional order could be compromised in the
interest of developing the evidence needed to obtain a conviction.” Meeks, 81 F.3d at 722. See also
Portee v. Vannatta, 105 Fed.Appx. 855, 858 (7th Cir. 2004) (“double jeopardy protections do not
attach in prison disciplinary proceedings.”). The double jeopardy claim is denied as meritless.
C.

Ground Three – Hearing Issues

Finally, in ground three, Mr. Bowers claims that he was forced to attend the disciplinary
hearing despite not being screened and was denied the right to present any witnesses and evidence.
1. Refusal to Attend the Hearing
The Court does not find Mr. Bowers credible when he testified that he initially attended
the disciplinary hearing on March 15, 2017, but then asked for a break to return to his cell to obtain
evidence. Three IDOC staff members testified that they arrived at Mr. Bowers’s cell to escort him
to the disciplinary hearing on March 15, 2017, and he refused. The Court finds these witnesses
credible and that Mr. Bowers refused to attend the disciplinary hearing. Accordingly, the Court
finds that Mr. Bowers waived his right to attend the disciplinary hearing when he refused to leave
his cell. See Domka v. Portage County, 523 F.3d 776, 781 (7th Cir. 2008) (stating that “[i]t is
without question that an individual may waive his procedural due process rights.”).

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2. The Right to Present Witnesses and Evidence
Mr. Bowers argues that he was denied the right to present witnesses and evidence at the
hearing and this was a violation of due process. As discussed above, due process only requires
access to witnesses and evidence that are exculpatory. Rasheed–Bey, 969 F.2d at 361. Mr. Bowers
has never argued or claimed that the witnesses and evidence he was denied from presenting were
exculpatory. In fact, Mr. Bowers has never identified the witnesses or evidence he was denied from
presenting or explained why they were exculpatory.
The Court concludes that any denial of the right to present witnesses and evidence was
harmless because Mr. Bowers failed to show how the evidence could have aided his defense.
Accordingly, Mr. Bowers is not entitled to relief on this ground.
III. Conclusion
“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. Bowers to the relief he seeks.
The Court concludes that Mr. Bowers received advance written notice of the charges, did
not suffer a double jeopardy violation, waived his right to attend the disciplinary hearing, and any
denial of evidence or witnesses did not violate his due process rights as he has failed to demonstrate
that this error was harmful. Accordingly, Mr. Bowers’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.

Date: 1/2/2019

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Distribution:
David A. Arthur
INDIANA ATTORNEY GENERAL
[e-mail]
Katherine A. Cornelius
INDIANA ATTORNEY GENERAL
[e-mail]
Mario Garcia
BRATTAIN MINNIX GARCIA
[e-mail]
Terry Wayne Tolliver
BRATTAIN MINNIX GARCIA
[e-mail]

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