JOHNSON v. RDC INDIANA DEPARTMENT OF CORRECTIONS

Filing 16

Entry Denying Petition for Writ of Habeas Corpus and Directing Entry of Final Judgment - The petition of Darnell Johnson for a writ of habeas corpus challenges a prison disciplinary proceeding identified as No. RDC 17-02-0028. For the reasons explained in this Entry, Mr. Johnson's habeas petition must be denied. (Copy to Petitioner via U.S. Mail) Signed by Judge William T. Lawrence on 10/11/2017.(JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DARNELL LEVON JOHNSON,
Petitioner,
vs.
RDC INDIANA DEPARTMENT OF
CORRECTIONS,
Respondent.

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No. 1:17-cv-01930-WTL-TAB

Entry Denying Petition for Writ of Habeas Corpus and Directing Entry of Final Judgment
The petition of Darnell Johnson for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as No. RDC 17-02-0028. For the reasons explained in this Entry, Mr.
Johnson’s habeas petition must be denied.
A.

Overview

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).

B.

The Disciplinary Proceeding

On February 23, 2017, Officer T. Wilson wrote a Conduct Report charging Mr. Johnson
with disorderly conduct. The Conduct Report states:
On 2-23-17 at approximately 7:50 am I, Officer T. Wilson, was calling out TB reads
in North Pod when a misunderstanding with an offender occurred regarding the TB
read. At this time, offender Johnson, Darnell #219986 yelled from his cell in North
Pod 247 “Shut the fuck up c.o., Beat that c.o.’s ass.” I then ordered the offender to
stop yelling and causing a disruption in the Pod. The offender Johnson then
responded “Roll this door bitch. I’ll beat yo ass. I dare you to walk by my door. I’ll
gunsmoke yo ass.” He then kicked his door several times. The offender kept yelling
profanities despite repeated orders to stop. I then called the pod Sergeant and upon
his arrival offender Johnson was placed in mechanical restrains and escorted to 1st
Range.
Dkt. 9-1 at 1.
Mr. Johnson was notified of the charge and received the Screening Report on the same date
the Conduct Report was written. He plead not guilty to the charge, requested the Nurse on the
range at the time and inmate Joshua Flora as witnesses, and requested video evidence of the
incident to show that Officer Wilson “blew a kiss at me.” The Nurse provided a witness statement
that corroborated Officer Wilson’s Conduct Report, while Mr. Flora’s witness statement said that
he was asleep at that time. Finally, a video evidence review was conducted, and it was concluded
that there was “no video recording at the place of th[e] incident.” Dkt. 9-2 at 4.
A hearing was held on February 28, 2017. At the hearing, Mr. Johnson stated, “I woke up
to North Pod screaming and yelling. I was shaking and sweating due to medical fasting. I did not
exhibit any violent or negative behavior. Upon asking for help from the officer, he blew a kiss
and then gave me a Conduct Report.” Dkt. 9-3 at 1. Based on Mr. Johnson’s statement, the staff
reports, and the evidence from the witnesses, the hearing officer found Mr. Johnson guilty of
disorderly conduct. The sanctions imposed included a thirty-day earned-credit-time deprivation
and a suspended credit-class demotion.

Mr. Johnson appealed to Facility Head and 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.
C.

Analysis

Mr. Johnson raises the following three claims in his habeas petition : (1) he was denied his
requested witness statement from inmate Mr. Flora; (2) he was not provided an adequate written
basis for the decision; and (3) he was denied the requested video evidence. The respondent argues
that Mr. Johnson’s first two arguments were not raised in his administrative appeals and are
therefore procedurally defaulted. The Court will address the issue of procedural default before
turning to the merits of the remaining claims.
1.

Procedural Default

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). “Indiana does not
provide judicial review of decisions by prison administrative bodies, so 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). To meet this requirement, a petitioner “must raise the issue at
each and every level in the state court system[.]” Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th
Cir. 2004). “[W]hen the habeas petitioner has failed to fairly present . . . the claim on which he
seeks relief in federal court and the opportunity to raise that claim in state court has passed, the
petitioner has procedurally defaulted that claim.” Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir.
2004).
The administrative appeals process involves, first, an appeal to the Facility Head and,
second, an appeal to the IDOC Final Reviewing Authority. Mr. Johnson filed both of these

appeals, but he raised different claims in each. In his first appeal, he argued that (1) he did not
receive an adequate written basis for the decision; (2) he was denied the requested video evidence;
and (3) he was charged in retaliation for complaining about sexual harassment. See dkt. 9-4 at 1.
In his second appeal, he argued that (1) he was denied an impartial decisionmaker; (2) he was
denied the requested video evidence; (3) Mr. Flora’s witness statement was not considered; and
(4) he was charged in retaliation for complaining about sexual harassment. See dkt. 9-5 at 1. This
shows that only two claims were raised at “each and every level in the state court system,” Lewis,
390 F.3d at 1025-26—namely, his claims about the video evidence and retaliation. Raising a claim
in only one of the two appeals is insufficient to adequately exhaust it. See id. The respondent is
therefore correct that Mr. Johnson’s claims that he was denied his requested witness statement
from inmate Mr. Flora and that he was not provided an adequate written basis for the decision are
procedurally defaulted and cannot form the basis for habeas relief.
Mr. Johnson did not raise his properly exhausted retaliation claim in his habeas petition.
This leaves his claim regarding the denial of video evidence as the only properly exhausted claim
at issue here.
2.

Video Evidence

Mr. Johnson argues that he was improperly denied video evidence of the incident, which
prevented him from adequately defending himself. The respondent contends that because there
was no video evidence available, it cannot violate Mr. Johnson’s due process rights to not produce
any.
Due process requires “prison officials to disclose all material exculpatory evidence,” unless
that evidence “would unduly threaten institutional concerns.” Jones v. Cross, 637 F.3d 841, 847
(7th Cir. 2011) (citation and quotation marks omitted). But, as noted above, the officer who was

requested to review the video stated that there was no video recording at the place of the incident.
See dkt. 9-2 at 4. It cannot violate due process to fail produce evidence that does not exist. See
Colwell v. Knight, 2016 WL 2989056, *3 (S.D. Ind. 2016) (“The [Prison] Facility cannot produce
video that does not exist.”); Foster v. Brown, 2014 WL 4539984, *2 (S.D. Ind. 2014) (“An inmate
does not have the right [under Wolff] to evidence that does not exist.”).
Accordingly, Mr. Johnson is not entitled to habeas relief on this claim.1
D.

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. Johnson to the relief he seeks.
Accordingly, Mr. Johnson’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: 10/11/17

1

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

To the extent that Mr. Johnson’s claim is based on a violation of IDOC policy, relief pursuant to
§ 2254 is available only on the ground that a prisoner “is being held in violation of federal law or
the U.S. Constitution.” Caffey v. Butler, 802 F.3d 884, 894 (7th Cir. 2015). Prison policies,
regulations, or guidelines do not constitute federal law; instead, they are “primarily designed to
guide correctional officials in the administration of a prison . . . not . . . to confer rights on inmates.”
Sandin v. Conner, 515 U.S. 472, 481-82 (1995). Therefore, claims based on prison policy, are not
cognizable and do not form a basis for habeas relief. See Keller v. Donahue, 271 Fed. Appx. 531,
532 (7th Cir. 2008); Rivera v. Davis, 50 Fed. Appx. 779, 780 (7th Cir. 2002).

Distribution:
DARNELL LEVON JOHNSON
219986
PENDLETON - CIF
CORRECTIONAL INDUSTRIAL FACILITY
Inmate Mail/Parcels
5124 West Reformatory Road
PENDLETON, IN 46064
Frances Hale Barrow
DEPUTY ATTORNEY GENERAL
[e-mail]