UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOSEPH A. WINGO, )

)

Petitioner, )

) 

v. ) No. 3:13 CV 299

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Joseph A. Wingo, a pro se prisoner, filed a habeas petition under 28 U.S.C. § 2254

challenging a prison disciplinary proceeding. (DE# 1.) In MCF #12-11-0264, a hearing

officer found Wingo guilty of assaulting staff, resulting in the loss of earned-time credits

and other sanctions. (DE# 11-9.) The charge was initiated on November 25, 2012, when

Officer C. Biddle wrote a conduct report stating as follows:

On 11/25/2012 at approx. 0648 hrs. I C/O C. Biddle and C/O G. Kraning

were passing out breakfast trays on the 300 range of SCU. As I C/O Biddle

was standing in front of S-310 occupied by offender Wingo, Joseph #906484,

I placed his food tray on the cuff port and took the lid off. As the lid was

taken off of the tray Offender Wingo stated “my bread is missing.” I then

walked back to the tray cart and grabbed 2 pieces of bread off of another tray

and then placed it on Offender Wingo’s tray. As offender Wingo grabbed his

tray and began to pull it into his cell he stated “I am Wingo” and threw the

tray out of his cuff port striking me in the leg, food then splattered all over

my arm and leg.

(DE# 11-1 at 1.) Photos of the officer after this incident were taken and were included

with the conduct report. (Id. at 2-3.) On the same date, Officer G. Kraning submitted the

following witness statement:
On November 25th, at approx. 06:48, I, c/o Kraning was passing breakfast

trays on the 300 range of SCU with c/o Biddle. I overheard an issue about

bread going on with offender Wingo, Joseph, #906484 in cell #310. Shortly

after that I turned around from where I was feeding and walked towards the

situation to assist. I then saw c/o Biddle approaching offender Wingo’s cuff

port where the tray was sitting. Seconds after that c/o Biddle was in front of

Wingo’s cuff port waiting for him to take his tray. Offender Wingo then

threw his breakfast tray with authority directly into c/o Biddle. Not only did

the majority of the food go all over him, but the tray itself struck c/o Biddle

in his leg, and the mid section of his body.

(DE# 11-2.) Officer M. Smith, who was working nearby during this incident, submitted

the following statement:

On / /12 [sic] I, C/O M[.] Smith, was working Special Control Unit pod. At

approx. 0648 I heard Ofc Biddle call for Sgt. Aldredge. When I looked down

the range (300) Ofd Wingo, Joseph # 906484 had thrown his breakfast tray on

Ofc. Biddle. Ofd Wingo was placed in a shower cell to clean his cell S-307 out

due to being placed on custody strip cell for assault on staff. I informed ofd

Wingo I had his strip sack due to him being diabetic. Ofd Wingo was

completely calm and nothing appeared to be wrong when Ofc Slabaugh and

Ofc Hamrick placed him back into his cell. At that time he was given his strip

cell sack.

(DE# 11-5.) 

On December 4, 2012, Wingo was formally notified of the charge and given a

copy of the conduct report. (DE# 11-1, DE# 11-3.) He pled not guilty, waived the 24-

hour notice requirement, declined the assistance of a lay advocate, and did not request

any physical evidence. (DE# 11-3.) He requested a witness statement from Nurse A.

Neff, who he said would attest that he had “low blood sugar” and had “no idea what he

was doing” during this incident. (Id.) He also requested a statement from Officer Smith

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to attest that he “was going to feed in shower.” (Id.) A statement was obtained from

Nurse Neff, who stated:

Offender Wingo alleges that his blood sugar was low on the date of alleged

assualt [sic] – his blood sugar may have been low – but not likely to the point

of altered behavior – It is rare to have low blood sugar cause ag[g]ression –

He has had low blood sugars numerous times prior to this date with no

ag[g]ression noted during any of these times.

(DE# 11-6.) In response to Wingo’s witness request, Officer Smith completed the form

stating as follows:

On 11/25/12 @ approx 0648 I C/O M Smith was working Special Control

Unit Pod. At this approx time Ofd Wingo, Joseph #906484 S-310 thru [sic] his

tray on the front of Ofc C. Biddle. Due to ofd Wingo taking insulin I then

ordered a strip cell sack for him. Ofd Wingo was placed into his cell at

approx 0730 and did not appear to be having any medical issues, and was

given his sack at this time.

(DE# 11-8.) 

On December 17, 2012, the hearing officer conducted a hearing on the charge.

(DE# 11-9.) Wingo did not make any statement, and instead the hearing officer noted

that he “refused to participate.” (Id.) Based on the evidence, the hearing officer found

him guilty. (Id.) His administrative appeals were denied (DE# 11-10, DE# 11-11), and he

thereafter filed this petition.

 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

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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

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

(1985). 

Here, the petition is somewhat difficult to decipher, but it is apparent that Wingo

challenges the sufficiency of the evidence. In reviewing a disciplinary sanction 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). Furthermore, a hearing officer is permitted to rely on circumstantial

evidence to establish guilt. See Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir. 1992).

Upon review, there is sufficient evidence to support the hearing officer’s

determination that Wingo was guilty of assault. Officer Biddle reported that as he was

handing out breakfast trays, Wingo became upset with him and threw his tray, striking

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the officer in the leg and causing food to get all over his clothing. (DE# 11-1 at 1.) Two

other officers submitted statements confirming that Wingo threw his tray at Officer

Biddle. (DE# 11-2, DE# 11-5.) This is sufficient to establish that Wingo assaulted the

officer. See Hill, 472 U.S. at 457 (evidence is sufficient as long as “the record is not so

devoid of evidence that the findings of the disciplinary board were without support or

otherwise arbitrary.”); see also Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002) (witness

statements constituted some evidence); McPherson, 188 F.3d at 786 (conduct report

provided some evidence to support disciplinary determination).

In the face of this evidence, Wingo does not offer an outright denial, nor did he at

the hearing. Instead he suggests that he should not be held responsible for his conduct

because he suffers from diabetes. (DE# 13.) In his view, Officer Biddle caused the entire

incident by giving him the wrong breakfast tray. (Id.) Notably, the evidence Wingo

requested (the statement from Nurse Neff) did not support his claim that his actions

were caused by low blood sugar. Even if Wingo did not feel well or was in a bad mood,

“inmates cannot be permitted to decide which orders they will obey, and when they

will obey them[.]” Lewis v. Downey, 581 F.3d 467, 476 (7th Cir. 2009). “When an inmate

refuses to obey a proper order, he is attempting to assert his authority over a portion of

the institution and its officials [which] . . . places the staff and other inmates in danger.”

Id. Wingo acknowledges that the officer ordered him to take the tray, and he was not

entitled to throw his tray at the officer simply because he felt the officer was making a

mistake. Moreover, the hearing officer was aware from the other witness statements

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that Wingo was diabetic. He nevertheless concluded that Wingo was guilty of the

offense, and it is not the province of this court to reweigh the evidence to determine

Wingo’s guilt or innocence. The question is solely whether there is some evidence to

support the hearing officer’s determination, and that standard is satisfied. Based on the

record, Wingo has not established a due process violation. 

Wingo next claims that he was denied the right to present exculpatory evidence.

As the respondent points out, principles of exhaustion that apply to federal review of

criminal convictions also apply to prison disciplinary proceedings. See Eads v. Hanks,

280 F.3d 728, 729 (7th Cir. 2002); Markham v. Clark, 978 F.2d 993, 994-95 (7th Cir. 1992).

Before seeking federal habeas relief, a prisoner must take all available administrative

appeals, and must raise in those appeals any issue on which he seeks federal review.

Eads, 280 F.3d at 729. An inmate’s failure to properly exhaust his claims in the state

administrative process means the claims are procedurally defaulted. Id. Here, Wingo

did not raise any claim about the denial of exculpatory evidence in his administrative

appeals, and instead argued that he had not meant to hurt the officer. (See DE# 11-10 at

1.) He cannot raise a claim here that was not properly presented in the administrative

process. Eads, 280 F.3d at 729. 

Assuming arguendo the court could reach this claim on the merits, Wingo has not

demonstrated an entitlement to habeas relief. A prisoner has a limited right to present

witnesses and evidence in his defense consistent with correctional goals and safety.

Wolff, 418 U.S. at 566. A hearing officer has considerable discretion with respect to

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witness and evidence requests, and may deny requests that threaten institutional safety

or are irrelevant, repetitive, or unnecessary. Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir.

2003). Furthermore, due process only requires access to witnesses and evidence that are

exculpatory. See Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992).

“Exculpatory evidence” in this context means evidence that “directly undermines the

reliability of the evidence in the record pointing to [the prisoner’s] guilt.” Meeks v.

McBride, 81 F.3d 717, 721 (7th Cir. 1996). The denial of the right to present evidence will

be considered harmless unless the prisoner shows that the evidence could have aided

his defense. See Jones v. Cross, 637 F.3d 841, 847 (7th Cir. 2011).

Here, the record shows that Wingo requested statements from Nurse Neff and

Officer Smith at the time of screening, and those statements were obtained and

considered. There is nothing to reflect that Wingo requested any other exculpatory

evidence when he had the opportunity to do so, and he cannot fault the hearing officer

for failing to consider evidence he did not properly request. See Piggie v. McBride, 277

F.3d 922, 925 (7th Cir. 2002). Nor has he demonstrated prejudice. It appears he wanted

to obtain statements from other medical staff about his diabetes. (DE# 13 at 2.) He

claims that Nurse Neff did not know him as well as other medical staff, but Nurse Neff

is the witness that he requested. Simply because his witness did not provide exculpatory

evidence as he had hoped does not mean his rights were violated. Furthermore, there is

no reason to believe obtaining statements from other medical staff would have had a

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different outcome on the proceedings. As stated above, Wingo was not entitled to throw

things at an officer even if he was feeling ill. 

Wingo also asserts that he was denied photos of Officer Biddle. It is unclear what

he is referring to since the photos were attached to the conduct report. (DE# 11-1.) In

any event, the photos were not exculpatory, nor does he argue as much. Instead, he

argues that the photos prove Officer Biddle gave him the wrong food tray, because the

officer had oatmeal on his clothing and Wingo’s diabetic food tray should not have

included oatmeal. (DE# 13 at 2.) However, as already stated, the fact that the officer

may have given Wingo the wrong breakfast tray does not exculpate him from the

assault charge. 

Wingo also mentions in passing that he wanted everyone involved to take a

polygraph test. However, an inmate is not entitled to the creation of favorable evidence

in a disciplinary proceeding. See Freitas v. Auger, 837 F.2d 806, 812 n.13 (8th Cir. 1988)

(prisoners are not entitled to polygraph tests in disciplinary hearings); Hester v. McBride,

966 F. Supp. 765, 773 (N.D. Ind. 1997) (inmate had no due process right to require

witnesses to undergo polygraph tests in prison disciplinary proceeding). Wingo

appears to have envisioned the hearing proceeding like a criminal trial, but “[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. In

short, Wingo has not demonstrated a due process error even if the court could consider

his claim. 

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Finally, Wingo argues that the entire charge was false, and that it was filed only

because Officer Biddle is related to a captain who works at the prison.* (DE# 1 at 4.)

Such an argument is difficult to square with the record, particularly since Wingo does

not dispute that he threw the tray. In any event, this claim does not entitle him to

habeas relief. “[P]risoners are entitled to be free from arbitrary actions of prison

officials.” McPherson, 188 F.3d at 787. However, “even assuming fraudulent conduct on

the part of prison officials, the protection from such arbitrary action is found in the

procedures mandated by due process.” Id. In other words, even if the charge was

initiated for improper reasons, the protections to which Wingo was entitled are the

protections afforded by Wolff. As explained above, Wingo has not demonstrated a

violation of any of his Wolff rights.

For these reasons, the petition (DE# 1) is DENIED. 

SO ORDERED.

Date: January 17, 2014

 s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

* Wingo attaches significance to the fact that Officer Smith submitted two statements, which he

views as evidence that prison officials were manipulating the process. (DE# 1 at 4-5.) However, it appears

that Officer Smith, like Officer Kraning, submitted an unsolicited witness statement at the time of the incident

since he was present when it occurred.(DE# 11-5 at 1.) He then also completed the witness request form that

was sent to him after Wingo was screened. (DE# 11-8.) There is nothing inconsistent about his two statements,

nor does either statement exculpate Wingo.