Opinion
No. 3:01cv0520 AS.
January 23, 2002
MEMORANDUM AND ORDER
On July 19, 2001, pro se petitioner, Douglas Sweatt, an inmate at the Miami Correctional Facility (MCF) in Bunker Hill, 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 December 10, 2001, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982).
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. He was the subject of a disciplinary proceeding, designated as MCF 01-04-0541. That proceeding involved the violation of Adult Disciplinary Procedures 241, namely, refusing to submit to a controlled substance or alcohol test. As a part of the sanctions imposed by the Conduct Adjustment Board (CAB), this petitioner was deprived of 90 days earned time credit, which is enough to trigger the applicability of Wolff v. McDonnell, 418 U.S. 539 (1974). The Attorney General of Indiana has placed before this Court Exhibits 1 through 9 which document this procedure at the MCF.
This all commenced on or about April 24, 2001, when a correctional sergeant instructed this petitioner to submit to a urinalysis test to determine the presence of a controlled substance or alcohol, and the petitioner refused. This was witnessed by another correctional officer. There was a form signed by the petitioner confirming the refusal. A Report of Conduct was written on April 25, 2001, charging this petitioner with refusing to submit to a controlled substance or alcohol test. There is no assertion here that these nine documents are fraudulent or inaccurate, and they certainly manifest a compliance with Wolff. A Conduct Adjustment Board hearing was held, and this petitioner entered a plea of not guilty, admitting, however, that he refused to submit to the urinalysis. He claimed that he was not guilty of any earlier marijuana offense, so he refused the test. He further argued some state law issue with regard to the delivering of the conduct report to the screening officer within three days. The case has been through the necessary internal appellate review and was final on or about June 5, 2001.
Neither of the assertions made by this petitioner invoke the Constitution, statute or treaties of the United States. See Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988), cert. den., 489 U.S. 1088 (1989). One has to do with the failure to give a sentencing hearing, which is clearly not required under Wolff, and the second one is a state law issue for allegedly violating the time period with regard to the reporting officer. See Estelle v. McGuire, 502 U.S. 62 (1991).
Certainly, this circuit has recently reordered the judicial approach to this species of proceedings in White v. Indiana Parole Board, 266 F.3d 759 (7th Cir. 2001), and Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001). See also Gaither v. Anderson, 236 F.3d 817 (7th Cir. 2000). The evidence is sufficient under Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445 (1985), and particularly the so-called "some evidence" test under 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).
This Court is historically familiar with the due process involved in this species of urinalysis. See Wykoff v. Resig, 613 F. Supp. 1504 (N.D.Ind. 1985), aff'd by unpub. order, 819 F.2d 1143 (7th Cir. 1987).
Wykoff has found favor in at least two other circuits. See Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 1986); Chaney v. Southern Railway Co., 847 F.2d 718, 721 (11th Cir. 1988). District Courts in the Second, Sixth, Seventh, and Ninth circuits have also cited to this court's decision in Wykoff with approval, See Fowler v. New York City Dept. of Sanitation, 704 F. Supp. 1264, 1272 (S.D.N.Y. 1989); Loworn v. City of Chattanooga, Tennessee, 647 F. Supp. 875, 877 (E.D.Tenn., S.D. 1986); Holm v. Haines, 734 F. Supp. 366, 371 (W.D.Wis. 1990); Pella v. Adams, 638 F. Supp. 94, 97 (D. Nev. 1986); Amalgamated Transit Union, Local 1277, AFL-CIO v. Sunline Transit Agency, 663 F. Supp. 1560, 1570 (C.D.Cal. 1987); as have state courts in Alabama, Idaho, Indiana, Maryland, and New York. See Martin v. State, 616 So.2d 384, 387 (Ala.Crim.App. 1993); Works v. State, 575 So.2d 622, 624 (Ala.Crim.App. 1991); Driver v. State, 576 So.2d 675, 677 (Ala.Crim.App. 1991); Martin v. State, 562 So.2d 294, 296 (Ala. Crim App. 1990); Bourgeois v. Murphy, 809 P.2d 472, 474 (Idaho Sup.Ct. 1991); Penrod v. State, 611 N.E.2d 653, 654 (Ind.Ct.App. 1993); Wilson v. State, 521 A.2d 1257, 1261 (Md.Ct.Spec.App. 1987); Lahey, et al. v. Kelly, 524 N.Y.S.2d 30, 33 (N.Y. 1987); Vasquez v. Coughlin, 118 A.2d 897, 898 (N.Y.Sup.Ct. 1986).
When it is all said and done, there is simply no basis here for relief under 28 U.S.C. § 2254. Such is now DENIED. IT IS SO ORDERED.