Curtis Ellison v. Dushan Zatecky

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1884
CURTIS T. ELLISON,
Petitioner-Appellant,
v.
DUSHAN ZATECKY,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:12CV597 — James T. Moody, Judge.
____________________
SUBMITTED FEBRUARY 11, 2016 — DECIDED APRIL 19, 2016
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. A disciplinary officer found in-
mate Curtis Ellison guilty of possessing heroin at Pendleton
Correctional Facility in Indiana. The officer punished Ellison
by stripping him of 90 days’ good-time credit. After exhaust-
ing his administrative remedies, Ellison petitioned the dis-
trict court for collateral review under 28 U.S.C. § 2254, and
he now appeals the denial of that petition. Because Ellison
2 No. 15-1884
was prevented from defending against the accusation that he
possessed a controlled substance, we vacate the district
court’s decision and remand for further proceedings.
Correctional Officer Guffey presented Ellison with a
screening report (the notice given an inmate about an im-
pending disciplinary proceeding) asserting that, slightly
more than a week earlier, Correctional Officer Bynum had
confiscated heroin during a search of Ellison’s cell. Ellison
told Guffey that Bynum (whom Ellison knew) had not
searched his cell that day. Two unfamiliar guards conducted
the search, he said, and found nothing. Indeed, although a
conduct report from Bynum does say that he found heroin in
cell 10-5D, which is assigned to Ellison, a photo of the heroin
discovered during the search is labeled “Cell 10-6D.” That
cell is located on the other side of the building from Ellison.
He explained to Guffey that Bynum’s conduct report mis-
takenly attributes to him the heroin found in Cell 10-6D, and
he asked Guffey to identify the two guards who actually had
searched his cell that day. He requested in writing that those
guards, as well as Officer Bynum, appear as witnesses at his
disciplinary hearing. Ellison also requested the surveillance
video and the test results for the substance.
According to Ellison, three days after receiving the
screening report, he recognized and spoke with one of the
guards who had searched his cell. The guard identified him-
self as Correctional Officer Dorethery, confirmed that he had
searched Ellison’s cell on the day in question (but not with
Officer Bynum), and stated that no contraband had been
found during the search. Dorethery also said that his name
No. 15-1884 3
would have been included in the conduct report as a witness
if heroin had been found during the search. Dorethery said
he was willing to provide Ellison with a statement for his
hearing and recommended contacting Sergeant Easton, his
supervisor, to obtain a copy of the search log identifying the
guards who had searched each cell. Ellison wrote to Officer
Guffey the same day, explaining that he had identified
Dorethery and wished to use his testimony and the search
log to show that Bynum had found the heroin in Cell 10-6D,
as noted on the photo of the contraband.
No witnesses showed at Ellison’s hearing the following
day. Not even Officer Bynum was present, even though El-
lison had requested him by name at screening and he pre-
sumably could have addressed the discrepancy between El-
lison’s cell number included in the conduct report and a dif-
ferent inmate’s cell number on the photo of the heroin. The
hearing officer refused to call Officer Dorethery because, El-
lison was told, his request had not been made at screening
(this despite the fact that Ellison had been explicit at screen-
ing that he wanted to call as witnesses “the officers who
shook down the cell” and had notified Officer Guffey
promptly upon learning Dorethery’s name). No explanation
was given for the hearing officer’s failure to call Bynum. El-
lison was not permitted to watch the video of the search, and
though the hearing officer viewed the video herself, she
simply noted in her written decision, “Ofc. seen going into
Ofds. cell,” without naming the guard in the video or even
saying she would recognize Bynum if it was him. At the
hearing Ellison testified that he had never used drugs, em-
phasized that the cell number written on the photo shows
that the heroin was found in a different inmate’s cell, and
4 No. 15-1884
characterized the contradictory conduct report as a case of
“clear human error.” The hearing officer still found Ellison
guilty.
In the district court Ellison claimed that he was denied
due process because, he argued, the evidence of guilt was
inadequate, the disciplinary hearing was not conducted fair-
ly, and the evidence that the seized substance was heroin (an
e-mail to Officer Guffey from “Tom Francum” saying that
the substance had tested positive) was unreliable. Ellison
elaborated that he had identified Officer Dorethery and re-
quested both Dorethery’s testimony and the search log in
advance, and that the evidence he requested had been essen-
tial to show that the photograph, not Officer Bynum’s later
conduct report, correctly identifies the cell where the heroin
was found. But the district judge understood Ellison to be
challenging only the sufficiency of the evidence on which the
hearing officer relied, and denied the § 2254 petition. The
court reasoned that, although “there was contradictory evi-
dence presented at his hearing, there is no indication that the
decision was arbitrary.” The conduct report, the court con-
tinued, provided some evidence on which to sustain the
finding of guilt.
As an initial matter, we agree with Ellison that the dis-
trict court read his petition too narrowly. True enough, the
petition and Ellison’s supporting memorandum do focus, as
far as legal theories, on the sufficiency of the evidence gen-
erally and the reliability of the particular proof used to estab-
lish that the substance was heroin. But Ellison’s detailed fac-
tual allegations confirm his pursuit of the claim that he was
No. 15-1884 5
denied due process by the hearing officer’s refusal to allow
him to present evidence. The respondent (despite now con-
tending otherwise) understood Ellison’s petition to include a
claim about the hearing officer’s restrictions on presenting
evidence and defended that claim on the merits. In the dis-
trict court the respondent never suggested, as he argues
now, that Ellison procedurally defaulted this claim, so that
defense has been waived. See Buggs v. United States, 153 F.3d
439, 444 (7th Cir. 1998); United States v. DeRobertis, 798 F.2d
1062, 1066 (7th Cir. 1986). Indeed, in reply to the respond-
ent’s opposition, Ellison confirmed that the respondent had
correctly understood him to be complaining about the re-
strictions on his presentation of evidence. That is our read-
ing of the petition as well.
Indiana prisoners have a liberty interest in earned good-
time credits and must be afforded due process before those
credits may be taken away. See Piggie v. McBride, 277 F.3d
922, 924 (7th Cir. 2002); Montgomery v. Anderson, 262 F.3d
641, 644–45 (7th Cir. 2001). Although inmates are not entitled
to the “full panoply of rights” due a defendant in a criminal
proceeding, Wolff v. McDonnell, 418 U.S. 539, 556, 566 (1974),
they must be allowed to present relevant evidence, including
witness testimony, unless it is cumulative or unduly threat-
ens the security of the facility. See Piggie, 277 F.3d at 925;
Forbes v. Trigg, 976 F.2d 308, 315–19 (7th Cir. 1992); Miller v.
Duckworth, 963 F.2d 1002, 1004–05 (7th Cir. 1992). Moreover,
a hearing officer cannot refuse to consider an inmate’s evi-
dence simply because other evidence supports a finding of
guilt.
6 No. 15-1884
The issue here is not whether Officer Bynum’s conduct
report provided a sufficient basis to find Ellison guilty, since
a hearing officer’s decision need only rest on “some evi-
dence” logically supporting it and demonstrating that the
result is not arbitrary. See Superintendent, Mass. Corr. Inst. v.
Hill, 472 U.S. 445, 454 (1985); Webb v. Anderson, 224 F.3d 649,
652 (7th Cir. 2000). But when a prisoner contends that he was
denied access to evidence necessary to defend against a dis-
ciplinary charge, his claim is properly understood as “one of
procedural due process rather than sufficiency of the evi-
dence.” Viens v. McDaniel, 871 F.2d 1328, 1336 n.2 (7th Cir.
1989).
Ellison was entitled to present evidence refuting Of-
ficer Bynum’s conduct report, and given the conflict between
that report and the location of the heroin identified on the
photo, the hearing officer’s refusal to permit Ellison to exer-
cise that right is particularly troubling. See Pannell v.
McBride, 306 F.3d 499, 503 (7th Cir. 2002); Meeks v. McBride,
81 F.3d 717, 721 (7th Cir. 1996). The hearing officer could not
have known whether Officer Bynum erred in labeling the
photo or the conduct report, and that is precisely why El-
lison’s explicit request to have Bynum present at the hearing
should have been honored. Ellison also was entitled to have
his written request to call Officer Dorethery honored; testi-
mony from Dorethery that he searched Ellison’s cell with
help from a guard other than Bynum would have directly
undermined the validity of the conduct report. See Meeks,
81 F.3d at 720.
The hearing officer’s treatment of the video is equally
problematic: Her cursory statement that the video shows
No. 15-1884 7
an officer entering Ellison’s cell misses the point, because un-
less it is Officer Bynum seen in the video going into Ellison’s
cell, the disciplinary case against Ellison falls apart. Given
these errors—along with the respondent’s failure to offer
any explanation for the conflicting evidence or challenge El-
lison’s version of events—we conclude that Ellison was de-
nied due process.
Because remand is necessary to correct these errors, we
need not address Ellison’s final challenge regarding the reli-
ability of the test results identifying the substance as heroin.
We note, however, that the record contains nothing more
than an e-mail to the hearing officer stating that the sub-
stance “did test positive” with no information about who
performed the test, the type of test which was used, or the
chain of custody. Administrative decisions resting on chemi-
cal analysis typically require both the test results and a chain
of custody linking those results to the particular prisoner.
Webb, 224 F.3d at 652–53. Perhaps chemical testing would’ve
been superfluous had Officer Bynum testified that, based on
his training and experience, he recognized the substance as
heroin, United States v. Sapanaw, 366 F.3d 492, 496 (7th Cir.
2004), but given that he didn’t testify, Ellison was essentially
required to accept the hearing officer’s word that the sub-
stance was actually tested.
Ellison is entitled to a disciplinary hearing comporting
with Wolff or else his good time must be restored. Accord-
ingly, the district court’s decision is VACATED, and the case
is REMANDED for further proceedings.