THOMPSON v. LEMMON

Filing 12

Entry Discussing Petition for Writ of Habeas Corpus - Richard Brown, in his official capacity only, is substituted as the proper respondent in this action. The clerk is directed to update the docket to reflect this change. The petition for a writ of habeas corpus must be denied and the action dismissed. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 6/13/2013.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

ANTHONY THOMPSON,
Petitioner,
vs.
RICHARD BROWN, Superintendent of Wabash
Valley Correctional Facility,1
Respondent.

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Case No. 2:12-cv-237-JMS-WGH

Entry Discussing Petition for Writ of Habeas Corpus
Anthony Thompson seeks a writ of habeas corpus with respect to a prison disciplinary
proceeding identified as No. WVD 12-04-0095. In that proceeding, Thompson was found guilty
of threatening. The relevant sanctions imposed included the loss of earned credit time and
demotion of his credit-earning class. Contending that the disciplinary proceeding is tainted by
constitutional error, Thompson seeks a writ of habeas corpus. The Court finds, however, that
there was no error of that nature and that Thompson’s habeas petition must therefore be denied.
Thompson is entitled to a writ of habeas corpus if he is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. ' 2254(a). 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. Meeks v. McBride, 81 F.3d 717, 719 (7th Cir. 1996) (citing
Wolff v. McDonnell, 418 U.S. 539, 557 (1974)). In these circumstances, Thompson was entitled
to the following process before being deprived of his liberty interests: (1) advance (at least 24
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Richard Brown, in his official capacity only, is substituted as the proper respondent in this action. See Hogan v.
Hanks, 97 F.3d 189, 190 (7th Cir. 1996) (prison warden is the proper respondent in habeas action brought by
incarcerated offender). The clerk is directed to update the docket to reflect this change.

hours before hearing) written notice of the claimed violation; (2) the opportunity to be heard
before an impartial decision-maker; (3) the opportunity to call witnesses and present
documentary evidence (when consistent with institutional safety); and (4) a written statement by
the fact-finder of the evidence relied on and the reasons for the disciplinary action. Rasheed-Bey
v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). In addition, there is a substantive component to
the issue, which requires that the decision of a conduct board be supported by “some evidence.”
Superintendent v. Hill, 472 U.S. 445 (1985).
Thompson received all the process to which he was entitled. That is, the charge was clear,
adequate notice was given, and the evidence was sufficient. In addition, (1) Thompson was given
the opportunity to appear before an impartial decision-maker and make a statement concerning
the charge, (2) the decision-maker issued a sufficient statement of its findings, and (3) the
decision-maker issued a written reason for his decision and for the sanctions imposed.
Thompson’s arguments that he was denied due process are either refuted by the expanded record
or based on assertions which do not entitle him to relief. The three specific arguments raised by
Thompson are addressed below.
First, Thompson argues that he was denied witnesses because the screening officer did
not find witnesses for him. This argument is rejected. Thompson was given an opportunity to call
witnesses but he did not do so. Due process does not require prison officials to search for
unidentified witnesses. Further, Thompson does not explain how witness testimony would have
helped him or would have changed the outcome of his proceeding. See Piggie v. Cotton, 344
F.3d 674, 678 (7th Cir. 2003) (when there is no indication of what witness testimony might have
been or how it would have added prisoner’s defense any error in not calling witness was
harmless).

Second, Thompson claims that he suffered double jeopardy because he was issued two
conduct reports for the same occurrence. The record reflects, however, that Thompson was
charged with and found guilty of two different offenses, both of which occurred on the same
date. In this case, the conduct Thompson was charged with and found guilty of was threatening
to spit on a correctional officer. In case number WVD-12-04-0096, Thompson was charged with
and found guilty of disorderly conduct for refusing to put his hands down when ordered by an
officer, “getting in [the officer’s] face,” and calling the officer a profane name. These are
separate offenses involving separate conduct. Thompson’s double jeopardy claim does not entitle
him to habeas relief.
Finally, Thompson claims that the evidence was insufficient to find him guilty of
threatening. In a prison disciplinary proceeding, a verdict of guilt must be supported by at least
“some evidence.” Hill, 472 U.S. at 454. The “some evidence” standard is lenient, “requiring only
that the decision not be arbitrary or without support in the record.” McPherson v. McBride, 188
F.3d 784, 786 (7th Cir. 1999). The conduct report states:
On 4-23-12 at approximately 12:00 pm, I, Ofc T Willey did witness offender
Anthony Thompson #956287 threaten to spit on Ofc A McLaughlin. Offender
Thompson could be seen and heard gathering snot and saliva in his mouth.
Offender Thompson was removed from the area and taken to CCU
In a witness statement, Officer McLaughlin explained that Thompson threatened to spit on her. A
rational adjudicator could readily conclude from the conduct report and witness statements that
Thompson threatened the correctional officer. See Henderson v. United States Parole Comm’n,
13 F.3d 1073, 1077 (7th Cir. 1993) (a federal habeas court “will overturn the [Disciplinary
Hearing Officer’s] decision only if no reasonable adjudicator could have found . . . [the
petitioner] guilty of the offense on the basis of the evidence presented”), cert. denied, 115 S. Ct.
314 (1994); see also Hill, 472 U.S. at 457 (“The Federal Constitution does not require evidence

that logically precludes any conclusion but the one reached” by the decision-maker). A guard’s
written report alone can fulfill the requirements of “some evidence.” See McPherson, 188 F.3d at
786. Thompson’s claim that he was just clearing his throat is an invitation to reweigh the
evidence, which the Court will not do in reviewing a disciplinary decision. See id.
“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 proceeding, or sanctions involved in the events identified in this action, and
there was no constitutional infirmity in the proceeding which entitles Thompson to the relief he
seeks. Accordingly, his 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.

06/13/2013
Date: __________________

Distribution:

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

ANTHONY THOMPSON
956287
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
All Electronically Registered Counsel
Note to Clerk: Processing this document requires actions in addition to docketing and distribution.