CURTIS T. ELLISON, Petitioner-Appellant,
DUSHAN ZATECKY, Respondent-Appellee
February 11, 2016
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 3:12CV597 --
James T. Moody, Judge.
T. ELLISON, Petitioner - Appellant, Pro se, Pendleton, IN.
DUSHAN ZATECKY, Superintendent, Respondent - Appellee: Kyle
Hunter, Attorney, OFFICE OF THE ATTORNEY GENERAL,
WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
Williams, Circuit Judge.
disciplinary officer found inmate Curtis Ellison guilty of
possessing heroin at Pendleton Correctional Facility in
Indiana. The officer punished Ellison by stripping him of 90
days' good-time credit. After exhausting his
administrative remedies, Ellison petitioned the district
court for collateral review under 28 U.S.C. § 2254, and
he now appeals the denial of that petition. Because Ellison
was prevented from defending against the accusation that he
possessed a controlled substance, we vacate the district
court's decision and remand for further proceedings.
Officer Guffey presented Ellison with a screening report (the
notice given an inmate about an im-pending disciplinary
proceeding) asserting that, slightly more than a week
earlier, Correctional Officer Bynum had confiscated heroin
during a search of Ellison's cell. Ellison told Guffey
that Bynum (whom Ellison knew) had not searched his cell that
day. Two unfamiliar guards conducted the search, he said, and
found nothing. Indeed, although a conduct report from Bynum
does say that he found heroin in cell 105D, which is assigned
to Ellison, a photo of the heroin discovered during the
search is labeled " Cell 106D." That cell is
located on the other side of the building from Ellison. He
explained to Guffey that Bynum's conduct report
mistakenly attributes to him the heroin found in Cell 106D,
and he asked Guffey to identify the two guards who actually
had searched his cell that day. He requested in writing that
those guards, as well as Officer Bynum, appear as witnesses
at his disciplinary hearing. Ellison also requested the
surveillance video and the test results for the substance.
to Ellison, three days after receiving the screening report,
he recognized and spoke with one of the guards who had
searched his cell. The guard identified himself as
Correctional Officer Dorethery, confirmed that he had
searched Ellison's cell on the day in question (but not
with Officer Bynum), and stated that no contraband had been
found during the search. Dorethery also said that his name
would have been included in the conduct report as a witness
if heroin had been found during the search. Dorethery said he
was willing to provide Ellison with a statement for his
hearing and recommended contacting Sergeant Easton, his
supervisor, to obtain a copy of the search log identifying
the guards who had searched each cell. Ellison wrote to
Officer Guffey the same day, explaining that he had
identified Dorethery and wished to use his testimony and the
search log to show that Bynum had found the heroin in Cell
106D, as noted on the photo of the contraband.
witnesses showed at Ellison's hearing the following day.
Not even Officer Bynum was present, even though Ellison had
requested him by name at screening and he presumably could
have addressed the discrepancy between Ellison's cell
number included in the conduct report and a different
inmate's cell number on the photo of the heroin. The
hearing officer refused to call Officer Dorethery because,
Ellison was told, his request had not been made at screening
(this despite the fact that Ellison had been explicit at
screening that he wanted to call as witnesses " the
officers who shook down the cell" and had notified
Officer Guffey promptly upon learning Dorethery's name).
No explanation was given for the hearing officer's
failure to call Bynum. Ellison was not permitted to watch the
video of the search, and though the hearing officer viewed
the video herself, she simply noted in her written decision,
" Ofc. seen going into Ofds. cell," without naming
the guard in the video or even saying she would recognize
Bynum if it was him. At the hearing Ellison testified that he
had never used drugs, emphasized that the cell number written
on the photo shows that the heroin was found in a different
inmate's cell, and characterized the contradictory
conduct report as a case of " clear human error."
The hearing officer still found Ellison guilty.
district court Ellison claimed that he was denied due process
because, he argued, the evidence of guilt was inadequate, the
disciplinary hearing was not conducted fairly, and the
evidence that the seized substance was heroin (an e-mail to
Officer Guffey from " Tom Francum" saying that the
substance had tested positive) was unreliable. Ellison
elaborated that he had identified Officer Dorethery and
requested both Dorethery's testimony and the search log
in advance, and that the evidence he requested had been
essential to show that the photograph, not Officer
Bynum's later conduct report, correctly identifies the
cell where the heroin was found. But the district judge
understood Ellison to be challenging only the
sufficiency of the evidence on which the hearing
officer relied, and denied the § 2254 petition. The
court reasoned that, although " there was ...