UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ANTHONY HOPKINS, )

)

Petitioner, )

) No. 3:14 CV 2092 

vs. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Anthony Hopkins, a pro se prisoner, filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 challenging a prison disciplinary proceeding held at

Indiana State Prison. (DE # 1.) In ISP 14-08-0124, a hearing officer found him guilty of

Possessing a Controlled Substance and deprived him of 30 days of earned credit time.

The charge was initiated on August 12, 2014, when Lieutenant Dustin wrote a conduct

report:

On 8/12/2014 at approx. 130 am during a search of Offender Hopkins

#874317 ACH 305, I Lt. Dustin during this search was searching the

top of Offender Hopkins [sic] blue cabinet [and] while sifting through

all the material on top of the cabinet Officer Peters noticed that an

orange 1⁄2 by 1⁄2 inch paper wrapped in clear cellophane fell to the

ground. Officer Peters picked it up for me and handed it to me where I

was able to identify the orange object by the N8 letter and number

stampped [sic] into the back of the orange paper as Suboxone

Sublingual Film 8 mg. The controlled substance was confiscated and

sent to IA for testing.

(DE # 9-1.)

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Lieutenant Dustin also completed a notice-of-confiscation form, describing the

confiscated property as a “1⁄2 by 1⁄2" orange square of Suboxone N8 as indicated on back

of drug.” (DE # 9-5.) Photographs of the evidence and evidence card were taken. (DE

## 9-3, 9-4, 9-5, 9-6, 9-7, 9-8.)

On the same day, Hopkins was formally notified of the charge and given a copy

of the conduct report. (DE # 9-2.) He pleaded not guilty, requested the assistance of a

lay advocate, and waived the 24-hour notice requirement. (Id.) He did not request any

physical evidence, but sought witness statements from offender Mislivecek and Officer

Peters. (Id.) 

Offender Mislivecek provided a written statement:

On the night of 8-11-14 I, Travis Mislivecek #202849, stopped at cell

305 to ask for some commissary. Inmate Hopkins said he didn’t have

any at that time, so I told him I’d sell some wraps in order to pay him

back and at that time I reached into my pocket and my 1⁄2 strip of

Suboxin [sic] must have fallen on the floor inside cell 305. This was at

5:30 count time so the CO’s [sic] were locking everyone in and I didn’t

realize I had dropped anything until I was locked in my cell. The

controlled substance Inmate Hopkins was written up for belonged to

me.

(DE # 9-9.)

Officer Peters also provided a written statement:

On 8-12-14 at approx. 1:50 am, I officer Peters and Lt. Dustin

performed a shakedown of offender Hopkins DOC #874317 cell 305 in

[A Cell House]. During the shakedown I witnessed Lt. Dustin knock a

small bag containing an orange strip I was not able to identify, onto

the floor. I showed the item to Lt. Dustin who then confiscated the

item as evidence.

(DE # 9-10.)

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On August 14, 2014, Hearing Officer Taylor requested test results for the

Suboxone strip confiscated. (DE # 9-12.) Officer Parnell informed Taylor, “[t]here is no

field test for suboxone strips. Through my training and experience, I can identify

suboxone strips.” (Id.) In addition, Lieutenant Dustin provided the hearing officer with

a picture of a Suboxone 8mg Sublingual Film that was downloaded from the internet.

(DE # 9-13.)

On August 19, 2014, a hearing was conducted on the charge. (DE # 9-3.) Hopkins

waived his previous request for a lay advocate and stated in his defense: “I didn’t have

it. Never used it. Never seen it. I smoke. I would like a test on that. If it’s a

drug/narcotic. I don’t understand how come they can’t test it. I wish could get test

stress.” (Id.) Based on the evidence, including the conduct report, the confiscation slip,

the evidence card, the photos of the evidence, the statement from Mislivecek, the

statement from Officer Parnell, the photo of a Suboxone strip, the hearing officer found

him guilty. (Id.) His administrative appeals were denied. (DE # 9-15.)

The Fourteenth Amendment guarantees prisoners certain procedural due

process rights in prison disciplinary hearings: (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 in defense, 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. Wolff v. McDonnell, 418

U.S. 539 (1974). To satisfy due process, there must also be “some evidence” in the record

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to support the guilty finding. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455

(1985). 

Hopkins raises two issues in his petition: (1) the substance was not field tested;

and (2) there was insufficient evidence to establish he possessed a controlled substance.

First, he argues that the “Suboxone strip” was not tested by a laboratory.

However, “[p]rison disciplinary proceedings are not part of a criminal prosecution, and

the full panoply of rights due a defendant in such proceedings does not apply.” Wolff,

418 U.S. at 556. Though prisoners have a right to submit relevant exculpatory evidence,

they do not have the right to create evidence which does not already exist. (Id.) (“Prison

officials must have the necessary discretion to keep the hearing within reasonable

limits.”) and Freitas v. Auger, 837 F.2d 806, 812 n.13 (8th Cir. 1988) (“Freitas was not

entitled to a polygraph examination . . ..”). See also Rhatigan v. Ward, 187 Fed. Appx. 889,

890-891 (10th Cir. 2006) and Arthur v. Ayers, 43 Fed. Appx. 56, 57 (9th Cir. 2002) (Inmates

are not entitled to laboratory testing of substances.) Therefore this ground is not a basis

for habeas corpus relief.

Next, Mr. Hopkins argues that there was insufficient evidence that the untested

substance found in his cell was a controlled substance. He also argues that the 1

substance found was Mislivecek’s. In sum, he is arguing that there was insufficient

evidence to find him guilty because the untested substance was found on the floor

Hopkins also claims that Lieutenant Dustin did not complete a confiscation slip, which causes a 1

problem with the chain of custody. (DE # 1 at 2.) Contrary to his belief, however, Lieutenant Dustin did

complete a confiscation slip for the contraband. (DE # 9-5.)

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where Mislivecek said he dropped it. In evaluating whether there is adequate evidence

to support the findings of a prison disciplinary hearing, “the 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. “The Federal Constitution does not

require evidence that logically precludes any conclusion but the one reached by the

disciplinary board.” Id. at 457.

In reviewing a decision for some 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.

Id. (quotations marks and citation omitted). Even a conduct report alone can provide

evidence sufficient to support the finding of guilt. McPherson v. McBride, 188 F.3d 784,

786 (7th Cir. 1999). To satisfy due process, there need only be “some evidence” in the

record to support the disciplinary decision. Hill, 472 U.S. at 455. “This is a lenient

standard, requiring no more than a modicum of evidence.” Webb v. Anderson, 224 F.3d

649, 652 (7th Cir. 2000) (citations and quotation marks omitted). 

Here, the conduct report is “some evidence” that Hopkins possessed the

substance, because the report shows that the substance was found in Hopkins’ cell after

being knocked off his cabinet. (DE # 9-1.) Though Mislivecek’s statement seems to

conflict with the conduct report, the hearing officer weighed this conflicting evidence

and found the conduct report to be true. It is not this court’s job to reassess the

credibility of the witnesses nor the weight of the evidence. Hill, 472 U.S. at 455

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(“Ascertaining whether this standard is satisfied does not require examination of the

entire record, independent assessment of the credibility of witnesses, or weighing of the

evidence.”). 

So too, there was some evidence that the substance found in Hopkins’ cell was a

controlled substance. This is true even without a field test being conducted. To start, the

substance was hidden on the top of Hopkins’ cabinet. Lieutenant Dustin identified the

substance as Suboxone 8mg Sublingual Film based on the “N8" stamp on the back of the

film. The hearing officer was provided a stock image of Suboxone to corroborate

Lieutenant Dustin’s conclusion. In addition, Officer Parnell identified the substance as

Suboxone based on his training and experience. Thus, there was clearly “some

evidence” that the item confiscated from Hopkins’ cell was a controlled substance. And,

there is no question that Hopkins was not permitted to possess that controlled

substance. (DE # 9-14.)

In his reply, Hopkins complains that he was terminated from his employment as

a result of being found guilty of possessing a controlled substance. He complains that

this is somehow double jeopardy. However, this argument is unavailing, because

double jeopardy principles do not apply in the prison disciplinary context. See Meeks v.

McBride, 81 F.3d 717, 722 (7th Cir. 1996). For the foregoing reasons, the habeas corpus

petition is DENIED.

SO ORDERED.

Date: April 20, 2016

s/ James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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