UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

VIRGIL J. SMITH, )

)

Petitioner, )

) Case No. 3:14-CV-1725-JVB

v. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Virgil J. Smith, a pro se prisoner, filed a habeas corpus petition challenging the prison

disciplinary hearing (ISP 14-04-220) where he was deprived of 180 days earned credit time and

demoted to credit class 2 by the Indiana State Prison Disciplinary Hearing Body (DHB) after it

found him guilty of Assault/Battery in violation of A-102 on April 24, 2014. Smith raises four

grounds in his petition, but because he prevails on Ground One, it is unnecessary to address the

other three. 

In Ground One, Smith argues that he requested video evidence, but the DHB refused to

allow it. The Respondent argues that “The video evidence Smith requested was presented and

considered at his hearing.” (DE 8 at 5.) However, that is not what the evidence in the record

indicates. The Respondent states, “This video was viewed as part of the investigation performed

by Internal Affairs, and the confidential investigation report summarizes the video but makes

very clear that the video was not relied onto bring the charges (Sealed Exhibit G).” (DE 8 at 5–6

(emphasis added).) The Respondent does not argue (and has not cited to anything in the record

indicating) that the hearing officer personally reviewed the video as requested by Smith. Though

“prison disciplinary boards are entitled to receive, and act on, information that is withheld from

the prisoner and the public,” White v. Ind. Parole Bd., 266 F.3d 759, 767 (7th Cir. 2001), the
hearing officer must nevertheless review relevant potentially, exculpatory evidence requested by

an inmate. See Wolff v. McDonnell, 418 U.S. 539, 566 (1974). 

Here, though the copy of the Disciplinary Hearing Report submitted by the Respondent is

partially obliterated (see DE 8-3 at 1), the brief asserts that, “In making this determination, the

hearing officer considered the offender’s statements, staff reports, and the Internal Affairs file

and photographs (Exhibit C).” (DE 8 at 3.) No mention is made of having reviewed the video

even though both it and the photographs were part of the Internal Affairs file. The Video Review

Form signed by the hearing officer has pre-printed language stating that “the video has been

reviewed outside the presence of the offender and the summary of the viewing is provided

below.” (DE 8-3 at 3.) However the form does not say who reviewed the video and the summary

does not indicate that the hearing officer actually saw it. On the form, the hearing officer’s handwritten “summary” merely states, “Video part of case file with IA.” (DE 8-3 at 3.) This is not a

summary of the content of the video. It is only a notation as to where it is stored. Though the

Respondent argues that, “The contents of the video are not exculpatory (Sealed Exhibit G)” (DE

8 at 6), that was the conclusion of the Internal Affairs Report (DE 9-1 at 2), not of the hearing

officer.

Smith requested the video and Wolff required the hearing officer to review it and reach

his own conclusions. Accordingly, the guilty finding will be vacated, but prison officials are free

to retry Smith on this charge, if they so choose. See Meeks v. McBride, 81 F.3d 717, 722 (7th

Cir. 1996) (double jeopardy principles do not apply in the prison disciplinary context). 

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For the reasons set forth above, the petition (DE 1) is GRANTED. The Respondent is

ORDERED to file documentation by September 24, 2015, showing that the guilty finding in ISP

14-04-220 has been VACATED. 

SO ORDERED on July 24, 2015.

 S/ Joseph S. Van Bokkelen 

JOSEPH S. VAN BOKKELEN

UNITED STATES DISTRICT JUDGE

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