LONG v. WARDEN

Filing 17

ENTRY DENYNG PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING ENTRY OF FINAL JUDGMENT - Courtney Long's petition for a writ of habeas corpus challenges his conviction in prison disciplinary case NCN 19-04-0013. Accordingly, Mr. Long's petition for a writ of habeas corpus must be denied and the action dismissed.Judgment consistent with this Entry shall now issue (SEE ORDER). Signed by Judge James Patrick Hanlon on 1/6/2021. Copy to Petitioner via US Mail. (DWH)

Case 1:19-cv-03723-JPH-DLP Document 17 Filed 01/06/21 Page 1 of 8 PageID #: 73

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
COURTNEY LONG,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
WARDEN,
Respondent.

No. 1:19-cv-03723-JPH-DLP

ENTRY DENYNG PETITION FOR WRIT OF HABEAS CORPUS
AND DIRECTING ENTRY OF FINAL JUDGMENT
Courtney Long's petition for a writ of habeas corpus challenges his conviction in prison
disciplinary case NCN 19-04-0013. For the reasons explained in this Entry, Mr. Long's petition is
denied.
A. Overview
Prisoners in Indiana custody may not be deprived of good-time credits or of credit-earning
class without due process. Ellison v. Zatecky, 820 F.3d 271, 274 (7th Cir. 2016); Scruggs v. Jordan,
485 F.3d 934, 939 (7th Cir. 2007); see also Rhoiney v. Neal, 723 F. App'x 347, 348 (7th Cir. 2018).
The due process requirement is satisfied with: 1) the issuance of at least 24 hours advance written
notice of the charge; 2) a limited opportunity to call witnesses and present evidence to an impartial
decision-maker; 3) a written statement articulating the reasons for the disciplinary action and the
evidence justifying it; and 4) "some evidence in the record" to support the finding of guilt.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); see also Wolff v. McDonnell,
418 U.S. 539, 563-67 (1974).

1

Case 1:19-cv-03723-JPH-DLP Document 17 Filed 01/06/21 Page 2 of 8 PageID #: 74

B. Disciplinary Proceedings
On April 17, 2019, Indiana Department of Correction (IDOC) Correctional Officer
LeMaster wrote a Report of Conduct charging Mr. Long with a violation of Code B-240/212,
Attempted Assault on Staff as follows:
On the above date and approximate time I Officer LeMaster told Off. Long,
Courtney (108201) to return to his cell. Off. Long then came at me in an aggressive,
threatening manner. Off. Long, Courtney (108201) had to be restrained, physically,
by multiple inmates. Off. Long, Courtney (108201) has been advised of this
conduct report.
Dkt. 7-1.
On April 22, 2019, Mr. Long received the Notice of Disciplinary Hearing Screening Report
notifying him of the charge. Dkt. 7-2. Mr. Long pleaded not guilty. Id. He requested three
witnesses: (1) Craig, Larry, (2) Petry, Antonio, and (3) an unidentified "white guy," presumably
Officer Hensley, to make statements regarding whether Mr. Long attempted to assault the officer.
Id. Mr. Long also requested physical evidence of the video of the dayroom on April 16, 2019, from
17:10 to 17:40 stating that it would "show another offender was just talking to him and getting him
to go to his cell." Id. Multiple witnesses provided written statements in lieu of appearing at the
hearing.
Officer Hensley provided the following statement:
On the above date and approximate time officer LeMaster gave offender Long
108201 a direct order to lock up. Offender Long then began screaming and walking
towards officer LeMaster. Offender Long then walked away from officer LeMaster
still yelling profanities.
Dkt. 7-8.
Offender Michael Campbell provided the following statement:
He never attempted to assault the officer in any type of way! We was all standing
there having a conversation with the officers & not once did he attempt to do
anything like that.
2

Case 1:19-cv-03723-JPH-DLP Document 17 Filed 01/06/21 Page 3 of 8 PageID #: 75

Dkt. 7-9.
Offender Petry provided the following statement:
Long did not threaten or attempt to assault officer LeMaster. I told Long to not pay
officer LeMaster any attention and to just go back to his room because officer was
provoking Long.
Dkt. 7-10.
Offender Craig provided the following statement:
Offender Long never attempted to assault any officer[.] He cut the phone off on
offender Long and offender Long was telling the officer that you need to talk and
respect people more that was all it was[.] He never tried to assault the officer.
Dkt. 7-11.
Mr. Long was not allowed to view the video evidence for security reasons, but the
disciplinary hearing officer (DHO) reviewed the video of the incident and summarized it as
follows:
The video for the above case was reviewed from 17:10 to 17:40 as the offender
requested. Video shows the Officers walk into the pod and a group of offenders
gather around them. The camera is too far away and the video quality is too poor to
identify anyone or see any details. Camera does not record sound.
Dkt. 7-6. The Court has reviewed the video footage provided for in camera review and finds that
the summation accurately depicts the events that occurred.
Mr. Long's disciplinary hearing was initially postponed, and then occurred on May 1, 2019.
Dkt. 7-5. Mr. Long submitted a written statement and commented that he "didn't attempt to assault
[the officer]. He was messin with me. He cut the phone off on me." Id.
The DHO found Mr. Long guilty based upon the conduct report, statement of offender,
evidence from witnesses, and video evidence. The Court notes that the DHO modified the charge

3

Case 1:19-cv-03723-JPH-DLP Document 17 Filed 01/06/21 Page 4 of 8 PageID #: 76

to a violation of Code B-236, Disorderly Conduct. 1 Id. Mr. Long's sanctions included a deprivation
of 45-days earned credit time and a credit class demotion. Id.
Mr. Long appealed to the Facility Head and the IDOC Final Reviewing Authority, but
neither appeal was successful. Dkt. 7-12; dkt. 7-13. He then filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Dkt. 1.
C. Analysis
Mr. Long raises three grounds in his petition: (1) he did not receive a hearing by an
impartial decision-maker; (2) he was denied the ability to present evidence he requested; and (3)
the sanctions imposed were excessive. Id. at 2. For the first time in his reply, Mr. Long states that
the record is "devoid of any reliable evidence" that he was disorderly and disrupted the security of
the facility. Dkt. 15 at 2. The Court will not consider this argument as "[a]rguments raised for the
first time in a reply brief are waived." Stechauner v. Smith, 852 F.3d 708, 721 (7th Cir. 2017).
1. Impartial Decision-Maker
Mr. Long argues that because the sanctions were being completed as he was walking into
the hearing and before the DHO heard any live witnesses, and because he denied the allegation in
his statement, the DHO was partial in his decision. Dkt. 1 at 2; dkt. 16 at 4. In his reply, he contends
that the DHO "played the role of a prosecutor" by writing a summation of the video evidence and
withheld evidence of Sgt. Seye, who would have testified about the reporting officer's history of
grievances and falsification of this report against Long. Dkt. 16 at 4-5.
A prisoner in a disciplinary action has the right to be heard before an impartial decisionmaker. Hill, 472 U.S. at 454. However, hearing officers "are entitled to a presumption of honesty

1

Disorderly conduct is defined as "exhibiting conduct which disrupts the security of the facility or
other area in which the offender is located." See Dkt. 7-14 at 1, 02-04-101 Appendix I: Offenses
(June 4, 2018).
4

Case 1:19-cv-03723-JPH-DLP Document 17 Filed 01/06/21 Page 5 of 8 PageID #: 77

and integrity" absent clear evidence to the contrary. Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir.
2003); see Perotti v. Marberry, 355 F. App'x 39, 43 (7th Cir. 2009) (citing Withrow v Larkin, 421
U.S. 35, 47 (1975)). Moreover, the "constitutional standard for impermissible bias is high," and
hearing officers "are not deemed biased simply because they presided over a prisoner's previous
disciplinary proceeding" or because they are employed by the prison. Piggie, 342 F.3d at 666. The
presumption is overcome—and an inmate's right to an impartial decision-maker is breached—in
rare cases, such as when the hearing officer has been "directly or substantially involved in the
factual events underlying the disciplinary charges, or in the investigation thereof." Id. at 667.
Simply put, Mr. Long has not presented clear evidence to overcome the presumption that
his hearing officer was impartial. The DHO's preparation of a written summary of the video
evidence prior to a disciplinary hearing is a part of his or her overall role to review and consider
available evidence in disciplinary cases. Moreover, it is not out of the ordinary for a DHO to review
evidence in the record prior to a disciplinary hearing in order to prepare and preside over such
hearing. Mr. Long admits that the DHO did "base" his decision off of his statement. Dkt. 1 at 2.
The DHO articulated his basis for his decision as a culmination of staff reports, Mr. Long's
statement, all of the witness statements, and the video. Dkt. 7-5. The Court notes that Mr. Long
did not request any evidence from Sgt. Seye at screening.
As a result of this review, the DHO modified the charge against Mr. Long to a less serious
offense and reduced the sanction from a deprivation of 90-days earned credit time to 45 days. Id.
Mr. Long has not shown that the DHO was directly or substantially involved in the factual events
underlying his charge or the investigation of such.
Accordingly, habeas relief on this ground is denied.

5

Case 1:19-cv-03723-JPH-DLP Document 17 Filed 01/06/21 Page 6 of 8 PageID #: 78

2. Denial of Evidence
Mr. Long contends only generally that he was denied evidence of camera footage and
witness statements in his petition. Dkt. 1 at 2. Mr. Long's petition states this ground for relief as:
"I asked for camera footage and witness statements that was not presented nor used in the decision
making process." Dkt. 1 at 2. In his reply, he claims that he requested "live testimony" from Officer
Hensley and Offenders Campbell, Petry, and Craig, and that this failure to present these witnesses
in person violated his due process rights. Dkt. 16 at 7. The respondent did not address the issue of
live testimony because this contention was not raised in the petition. Mr. Long waived this
argument regarding "live testimony" by not raising it in his petition, but only in the reply.
Stechauner, 852 F.3d at 721.
But even if this argument had not been waived, Mr. Long cannot show the lack of "live
testimony" prejudiced him, so any error would be harmless error. See Jones v. Cross, 637 F.3d
841, 846-47 (7th Cir. 2011). Mr. Long wanted his witnesses to state whether he had attempted to
assault the officer. The witnesses uniformly said that he had not. This evidence apparently
persuaded the DHO to modify the charge to disorderly conduct, a charge that does not encompass
any attempted assault. Mr. Long has not identified what else his witnesses would have said and,
therefore, has not shown that any denial of live testimony resulted in prejudice. The DHO
considered the witness statements that Mr. Long had requested. There is no due process error in
this regard.
Although Mr. Long was not allowed to view the video evidence, the DHO explained that
this was based on security concerns. Moreover, the Court has reviewed the video in camera, and
has concluded that the DHO's summary was accurate. The video evidence was not clear enough to
add any substance to the record.

6

Case 1:19-cv-03723-JPH-DLP Document 17 Filed 01/06/21 Page 7 of 8 PageID #: 79

Accordingly, habeas relief on this ground is denied.
3. Excessive Sanctions
The respondent argues that Mr. Long failed to exhaust his administrative remedies as to
excessive sanctions, and this ground is now procedurally defaulted. The Court has reviewed Mr.
Long's first level appeal 2 and finds that Mr. Long did not raise this ground in his appeals, nor has
he explained why he did not do so.
In Indiana, only the issues raised in a timely appeal to the Facility Head and then to the
Final Reviewing Authority may be raised in a subsequent petition for writ of habeas corpus unless
a showing of "cause and prejudice or a miscarriage of justice (meaning conviction of an innocent
person)" has been made. See 28 U.S.C. § 2254(b)(1)(A); Washington v. Boughton, 884 F.3d 692,
698 (7th Cir. 2018); Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002); Moffat v. Broyles, 288 F.3d
978, 981 (7th Cir. 2002). Mr. Long has not shown cause and prejudice.
Accordingly, habeas relief on this ground is denied.
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. Long to the relief he seeks.

2

Mr. Long's first level appeal on May 8, 2019 reads: "The record is completely devoid of any
evidence that Long was disorderly while exercising oral grievances of racial discrimination which
is in his job description as program mentor; 2. Denial of live witness testimony denies due process;
3. denial of physical evidence complete video review; 4. denial of exculpatory evidence (Sgt. Seye)
that proved Long innocent; 5. denial of impartial decision-maker for prevaricating video report; 6.
Denial of a reasoned explanation as to why it believed an officer that racially discriminated against
Long, retaliated against Long by filing false conduct report and then quit his job over Long's
credible witness and 7. Violation of I.C. 11-11-5-5(a) right to confront[.]" Dkt. 7-12.
7

Case 1:19-cv-03723-JPH-DLP Document 17 Filed 01/06/21 Page 8 of 8 PageID #: 80

Accordingly, Mr. Long's petition for a writ of habeas corpus must be denied and the action
dismissed.
Judgment consistent with this Entry shall now issue.
SO ORDERED.
Date: 1/6/2021

Distribution:
COURTNEY LONG
108201
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Frances Hale Barrow
INDIANA ATTORNEY GENERAL
[e-mail]

8