Opinion
No. 3:02cv0565 AS
October 24, 2002
MEMORANDUM AND ORDER
On August 12, 2002, pro se petitioner, Charles Reese, an inmate at the Indiana State Prison (ISP) in Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on September 20, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on October 22, 2002, which this Court has carefully examined.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. He was the subject of a Conduct Adjustment Board (CAB)proceeding designated as ISP 02-04-170. In that proceeding, he was found guilty of committing a battery upon another person without a weapon and without inflicting serious injury. He was sanctioned to six months of disciplinary segregation, which generally implicates the teaching of Sandin v. Conner, 515 U.S. 472 (1995) and also sanctioned for the loss of 180 days of earned time credit would implicate Wolff v. McDonnell, 418 U.S. 539 (1974). The Attorney General of Indiana has placed before this Court a series of documents designated as A-1 through A-22, both inclusive which explicate the proceedings mentioned here. These began in April 2002 at the ISP. There was a CAB proceeding following the procedures in Wolff. That proceeding was concluded on July 23, 2002 upon final administrative review. The evidence here is more than sufficient under Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445 (1985), and under the "some evidence" test applicable in this circuit. See Webb v. Anderson, 224 F.3d 649 (7th Cir. 2000), cert. denied, 2000 WL 1512783 (U.S.), McPherson v. McBride, 188 F.3d 784 (7th Cir. 1999), and Meeks v. McBride, 81 F.3d 717 (7th Cir. 1996).
He also raises an issue under Piggie v. McBride, 277 F.3d 922 (7th Cir. 2002) with regard to the inmate's access to a videotape. There is no question that the CAB considered the videotape. There is a question here as to whether the offender, this petitioner, is entitled to it, and under Piggie and its progeny in this circuit, apparently he is not. It is hard to tell exactly what he is arguing about with regard to some kind of access to departmental correction policies and procedures. Certainly this Court is aware of Chavis v. Rowe, 643 F.2d 1281 (7th Cir.), cert. denied, 454 U.S. 907 (1981). More recently, see Gaither v. Anderson, 236 F.3d 817 (7th Cir. 2000) and White v. Indiana Parole Board, 266 F.3d 759 (7th Cir. 2001). The basic guidance here is Wolff, and does not appear that it was violated here. He apparently wanted some policies relating to officer training and inmate escort procedures. He was denied those on a security basis. This Court will not gainsay that determination.
There is a contention here that the CAB improperly found him guilty of a charge other than that with which he was originally charged. He also claims he was denied the 24-hour notification of changed conduct prior to the disciplinary hearing. The Attorney General of Indiana cites and quotes VII (H)(2)(b) of the ADPP:
"If an offender admits guilt or the evidence shows guilt of an equal or lesser disciplinary code violation, the Disciplinary Hearing Body may find the offender guilty of such violation."
It is elementary that the double jeopardy clause of the Fifth Amendment does not apply to CAB proceedings, and certainly such is true under Wolff. Actually the charge was reduced which makes it even less likely to violate any Supreme Court of the United States decision. This Court has revisited Flowers v. Hanks, 941 F. Supp. 765 (N.D.Ind. 1996), and this Court is very hard pressed to find how that case helps this petitioner. Certainly, the statute of limitations law in this circuit has changed decidedly since Flowers.
Likewise this Court has revisited Mayers v. Anderson, 93 F. Supp.2d 962 (N.D.Ind. 2000). But see Piggie v. Hanks, 98 F. Supp.2d 1003 (N.D.Ind. 2000). Since this Court's published opinion in Mayers, the Court of Appeals in this circuit has taken a different view of the law with reference to viewing videotapes in CAB proceedings and this Court is bound by that more recent decision. So this Court cannot adhere to Mayers in this case. This Court also has reexamined Evans v. Deutch, 8 F. Supp.2d 1135 (N.D.Ind. 1998). Here, the charged was reduced. Neither Mayers nor Evans require a decision in favor of this petitioner in this case. This petitioner is to be complimented on the highly professional way that he has researched this dynamic and ever-changing area of the law. However, it remains an obligation of this Court to follow the mandates of the Supreme Court of the United States and the Court of Appeals for this circuit even in areas where there might be some disagreement. That is the way the system is set up, and this Court has no choice but to follow it.
For all of these reasons, upon careful consideration, the petition is DENIED. IT IS SO ORDERED.