UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOHN MITCHEM, )

)

Petitioner, )

) Cause No. 3:12-CV-831-PPS 

vs. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

John Mitchem, a pro se prisoner, filed a habeas petition challenging a prison disciplinary

proceeding wherein he was found guilty of conspiring or attempting to assault a staff member. 

(DE 15-3 at 1.) The charge was initiated when Sergeant O. Neese wrote a conduct report stating

the following:

On 9-4-11 at approximately 1336 I Sgt. O. Neese went into dorm 17 south C-side

from center hallway[.] [A]s I started to go behind the officers desk C-side

offender Mitchem DOC #856649 approached me from behind I then turned

around towards him and said what do you need[.] Mitchem then grabbed ahold of

my shirt [by] my neck and said you see me. I then pushed offender Mitchem back

a little and ordered him twice to let go[.] I then noticed that Mitchem also had a

padlock with a sock or rag attached to it. After he was ordered the second time to

let go of my shirt Mitchem let go and returned back to his cube bed area 48 Low

C. Mitchem was [taken] to the ASU for lock up[.]

(DE 15-1.)

Mitchem was notified of the charge and given a copy of the conduct report. (DE 15-1,

15-2.) He pled not guilty, requested a lay advocate, requested witness statements from fellow

inmates B. Combs and C. Croom, and requested surveillance video as physical evidence. (DE

15-2.) Statements were obtained from the two inmates: Combs stated that he did not see

anything and Croom said that he was in another area of the prison and did not know what
happened. (DE 15-2 at 3-4.) The hearing officer also viewed the surveillance video, which

showed Mitchem walking behind Sergeant Neese with a weapon in his hand. (DE 15-3 at 1.)

At the hearing on the violation, Mitchem stated that the “reason I did it was because of

what he did.” (Id.) He stated that Sergeant Neese had “paraded” him through the prison with his

hands on his head, which had “humiliated” him.1 (Id.) The hearing officer considered

Mitchem’s statement, staff reports, witness statements, and the video evidence, and found him

guilty. (Id. at 1.) Mitchem appealed to the facility head and final reviewing authority, but his

appeals were denied. (DE 15-4, 15-5.) Thereafter, he filed the present petition.

 When prisoners lose earned time credits in prison disciplinary hearings, the Fourteenth

Amendment Due Process Clause guarantees them certain procedural protections: (1) advance

written notice of the charges; (2) an opportunity to be heard before an impartial decision-maker;

(3) an opportunity to call witnesses and present documentary evidence when consistent with

institutional safety and correctional goals; and (4) a written statement by the fact-finder of

evidence relied on and the reasons for the disciplinary action. See Wolff v. McDonnell, 418 U.S.

539, 564-66 (1974). To satisfy due process, there must also be “some evidence” in the record to

support the hearing officer’s determination. See Superintendent, Mass. Corr. Inst. v. Hill, 472

U.S. 445, 455 (1985). 

Here, Mitchem raises two claims in his petition, both turning on the sufficiency of the

evidence. (DE 1 at 3-4.) He argues that there was insufficient evidence that he engaged in a

1 Mitchem further detailed the prior incident in his appeal. He claimed that earlier that day

Sergeant Neese had taken off his handcuffs and ordered him to place his hands on top of his head.

The officer allegedly “grabbed” him by his left shoulder and the “seat of his jumpsuit,” and

“paraded” him from the C-side of the prison to the D-side. (DE 15-4 at 1.) Mitchem viewed these

actions as an unprofessional attempt to “show these guys who’s in charge.” (Id.)

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“conspiracy,” and no evidence that Sergeant Neese was injured as a result of this incident. (Id.)

In his view, such evidence was necessary to find him guilty of the charge.

In reviewing a disciplinary determination for sufficiency of the evidence, “courts are not

required to conduct an examination of the entire record, independently assess witness credibility,

or weigh the evidence, but only determine whether the prison disciplinary board’s decision to

revoke good time credits has some factual basis.” McPherson v. McBride, 188 F.3d 784, 786

(7th Cir. 1999). “[T]he relevant question is whether there is any evidence in the record that could

support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56 (emphasis

added). A habeas court will overturn the hearing officer’s decision only if “no reasonable

adjudicator could have found [the prisoner] guilty of the offense on the basis of the evidence

presented.” Henderson v. United States Parole Comm’n, 13 F.3d 1073, 1077 (7th Cir. 1994).

Here, the disciplinary charges at issue are A111, “[c]onspiracy/attempting/aiding/abetting

to commit any Class A offense,” and A117, “[a]ssault on staff (including contractors and

volunteers) which results in serious bodily injury.” (DE 1 at 9.) In Mitchem’s view

“conspiracy” means a “careful planning together in secret to commit a wrongful act.” (DE 16 at

2.) He argues that “[his] actions [were] not a careful planning with himself nor anyone else but

instead a reaction and direct result of being assaulted by Sgt. O. Neese.” (Id.) To the extent

Mitchem is arguing that the prison had to present evidence of a conspiracy between him and

another individual, this argument is unavailing since the offense also encompasses an attempt to

commit a Class A offense. Similarly, the prison did not have to present evidence of an injury to

Sergeant Neese, since Mitchem was found guilty of attempted assault, not assault. 

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So the only relevant question is whether there is sufficient evidence that Mitchem

attempted to assault Sergeant Neese, and to that question is yes. Sergeant Neese’s conduct report

stated that Mitchem approached him aggressively from behind, grabbed him by the neck while

holding a dangerous make-shift weapon in his hand, and only let go after two direct orders. The

video corroborated Sergeant Neese’s account of what occurred. Indeed, Mitchem did not deny

what he did or otherwise present any exculpatory evidence, and instead tried to justify his

actions based on a prior run-in he had with the officer.2 The “some evidence” standard is a

modest one, and that standard has easily been met in this case. See Moffat v. Broyles, 288 F.3d

978, 988 (7th Cir. 2002) (witness statements constituted some evidence); McPherson, 188 F.3d

at 786 (7th Cir. 1999) (conduct report provided some evidence to support disciplinary

determination).

For the reasons set forth above, the petition (DE 1) is DENIED.

SO ORDERED.

ENTERED: August 14, 2013.

s/ Philip P. Simon 

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

2

 To the extent Mitchem is trying to claim he somehow acted in self defense, the circumstances he describes

do not remotely suggest a viable self defense claim. In any event, self defense is not applicable in the prison disciplinary

context. See Jones v. Cross, 637 F.3d 841, 848 (7th Cir. 2011). As the final reviewing authority pointed out, if Mitchem

felt the officer had acted improperly he could have simply complained through the prison grievance system. (DE 15-5

at 1.)

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