IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

KURTIS OLIVER, )

)

Petitioner, )

)

vs. ) NO. 3:14-CV-1750

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Kurtis Oliver, a pro se prisoner, filed a habeas corpus

petition challenging a prison disciplinary proceeding, on July 2,

2014. (DE 2.) For the reasons set forth below, the petition (DE 2)

is DENIED.

BACKGROUND

On February 20, 2014, a hearing officer at Westville

Correctional Facility found Oliver guilty of making or possessing

intoxicants under cause number WCC # 14-02-0111. The charge was

initiated when Sergeant Jones wrote a conduct report stating as

follows: 

On February 4, 2014, while I (Sgt. L. Jones) was making

rounds, I did a shakedown on C1. I found an orange

liquid substance in offender[] Kurtis Oliver[‘s] #166183

property wrapped up in a laundry bag. Substance was

tested and pictures were tooken [sic].

(DE 11-1.)
On February 11, 2014, Oliver was formally notified of the

charge and given a copy of the conduct report. (DE 11-1, 11-2.) He

pled not guilty and requested a lay advocate. (DE 11-2.) He

requested a statement from Ofc. Horde, and video surveillance of

the area where the search occurred on February 4, 2014 at

approximately 1:45 p.m. (DE 11-2.) Oliver was under the belief that

Ofc. Horde would testify that the substance did not belong him. 

However, a witness statement was obtained from Ofc. Horde, who

provided, “[t]his is a false statement, it was found in his room.” 

(DE 11-4.) 

On February 20, 2014, a hearing was held on the charge. (DE

11-10.) Oliver submitted a statement describing his own version of

events, stating “Sgt. James did not find this in my room. They

found it in room #9.” (DE 11-10.) Notably, the DHB reviewed the

video from the time and location of the incident. (DE 11-6.) 

After reviewing the video, the conclusion was that, “Room #9 is in

view of the camera. No staff entered or exited room 9 during the

times frame in question (1:40 pm to 1:55 pm). The offender’s

allegation that the substance came out of room #9 is false!” (Id.)

Upon considering the conduct report, the witness statements, and

pictures of the substance and the alcohol test results, the hearing

officer found Oliver guilty. (DE 11-10.) The hearing officer

imposed sanctions of a deprivation of 30 days of earned credit time

and a demotion from credit class 1 to credit class 2. (Id.) Oliver

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filed administrative appeals, raising six issues relating to the

identification of the substance and the location where it was found

(DE 11-11.) His appeals were denied. (DE 11-12.)

DISCUSSION

 When prisoners lose earned time credits in a disciplinary

proceeding, the Fourteenth Amendment Due Process Clause guarantees

them certain procedural protections: (1) advance written notice of

the charge; (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.

Wolff v. McDonnell, 418 U.S. 539 (1974). To satisfy due process,

there must also be “some evidence” in the record to support the

hearing officer’s determination. Superintendent, Mass. Corr. Inst.

v. Hill, 472 U.S. 445, 455 (1985). 

Here, Oliver raises five arguments: (1) there is no reliable

evidence; (2) there was contradictory evidence; (3) there was no

evidence he possessed the bottle in question; (4) the alcohol test

may not have been from the bottle recovered; and (5) a witness

statement was not considered. Oliver’s petition is not a model of

clarity, but it is apparent that the first four of these arguments

challenge the sufficiency of the evidence.

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Oliver argues that the evidence presented to the hearing

officer was unreliable and insufficient. Specifically, he argues

that there was no evidence that he possessed the bottle in question

and no evidence that the substance in the bottle was an intoxicant. 

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). The

court will overturn a guilty finding 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 Oliver was guilty of making or

possessing intoxicants. To start, Sergeant Jones reported that he

found a bottle containing a liquid substance that was wrapped up in

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Oliver’s laundry bag. The substance was tested for intoxicants and

then Oliver was charged. Sergeant Jones’ conduct report is “some

evidence” that Oliver possessed the bottle and also “some evidence”

that the bottle contained an intoxicant. McPherson v. McBride, 188

F.3d 784, 786 (7th Cir. 1999) (conduct report alone provided “some

evidence” to support disciplinary determination). Moreover, the

conduct report was not the only evidence submitted at the

disciplinary hearing. Ofc. Horde’s statement, a picture of the

bottle containing the liquid, as well as a picture of the alcohol

sensor displaying a positive reading for alcohol, were all

presented. 

The hearing officer was not required to credit Oliver’s

denials or prove his guilt beyond a reasonable doubt; the question

is solely whether there is “some evidence” to support her

determination, and that standard is easily satisfied here. See

Hill, 472 U.S. at 457 (“Although the evidence in this case might be

characterized as meager, and there was no direct evidence

identifying any one of three inmates as the assailant, 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). Here, there was both some evidence that Oliver

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possessed the bottle and that the substance in the bottle tested

positive for alcohol.

Oliver complains that a statement he submitted while

administratively appealing this sanction was not considered. Oliver

apparently submitted a statement made by offender Jason Zent, which

set out that Zent lived in cell house C1-52-11, was present during

the search in question, and that the search produced no contraband. 

(DE 2 at 2). However, Oliver did not attempt to call Zent as a

witness or seek a written statement prior to the disciplinary

hearing. Instead, Oliver admits the statement “was presented at

time of appeal.” (DE2 at 2.) “The due process clause does not

require later consideration of evidence that could have but was not

presented during a prison disciplinary proceeding.” Jones v.

McCaughtry, 6 Fed. Appx. 371, 372-73 (7th Cir. 2001)(citing

McPherson, 188 F.3d at 786-87). Because Oliver did not submit

Zent’s statement until after the disciplinary hearing, his

submission of additional evidence is irrelevant to the Court’s due

process inquiry. Id.

Not only is there sufficient evidence to find Oliver guilty of

the charged offense, but there has been no showing that he was

deprived any due process along the way. Based on the record, there

is sufficient evidence to find Oliver guilty of making or

possessing intoxicants, a Class B offense 231, and Oliver has not

made a showing that his due process rights have been violated.

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CONCLUSION

For the reasons set forth above, the petition (DE 2) is

DENIED.

DATED: February 24, 2015 /s/RUDY LOZANO, Judge

United States District Court

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