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Brooks-Bey v. Smith

decided: May 20, 1987.

CHARLES E. BROOKS-BEY, PETITIONER-APPELLANT,
v.
WILLIAM FRENCH SMITH, ET AL., RESPONDENTS-APPELLEES



Appeals from the United States District Court for the Southern District of Illinois, No. 84-4444 -- James L. Foreman, Chief District Judge, No. 85-4055 -- Kenneth J. Meyers, Magistrate.

Posner, and Flaum, Circuit Judges, and Marovitz, Senior District Judge.*fn*

Author: Marovitz

MAROVITZ, Senior District Judge.

These consolidated appeals from the denial of petitions for habeas corpus raise the question of whether Charles Brooks-Bey, now an inmate at the federal penitentiary at Marion, Illinois, was denied due process of law in a prison disciplinary proceeding while incarcerated at the federal penitentiary at Leavenworth, Kansas and thereby deprived of his liberty in violation of the fifth amendment.

D. Rardin, a correctional supervisor, delivered a copy of the incident report to Brooks-Bey on April 27, 1984. The incident report stated that:

"At approximately 6:30 P.M. on March 14, 1984 inmate FOX, Clarence # 01372-041 was murdered. His body was discovered by staff at approximately 8:20 PM in the shower on five gallery of ACH. Investigation reveals that inmate BROOKS was present and a participant in activities that culminated in the death of inmate FOX. Submission of this report was delayed due to the extensive investigations required."

The report also indicates that the reporting employee was O. Mowery, S.I.S. (Special Investigative Supervisor).

A hearing date was set and Brooks-Bey was informed in writing of his rights before the Institution Discipline Committee ("IDC") including his right to representation by a staff member. Brooks-Bey exercised his right to representation and H. Rathman was assigned as his staff representative.

An SIS lieutenant investigated the charges and wrote up the results of his investigation in a report that he submitted to the IDC. See 28 C.F.R. § 541.14. The investigative report prepared by the SIS lieutenant apparently contained confidential information and was not released to Brooks-Bey. The record is silent as to whether a copy of the investigative report was provided to H. Rathman, Brooks-Bey's staff representative. See 28 C.F.R. § 541.14(b)(2).

On May 7, 1984, Brooks-Bey appeared before the IDC. Brooks-Bey was confronted with the charges against him and he denied the same. Five inmates appeared as witnesses on Brooks-Bey's behalf. In addition to the testimony of Brooks-Bey and his witnesses, the IDC considered the incident report and the investigative packet prepared by the SIS lieutenant. On the basis of the incident report and investigative packet Brooks-Bey was found guilty of the offense charged. The IDC's decision essentially repeats the incident report's description of the incident and then adds:

"Investigative packet by the SIS lieutenant was considered. The officer's statement and observation is more credible and believable than that of the inmate or witnesses, since the officer's observation was made strictly in the performance of his duty, without reason to make an untruthful statement. The statement (sic) of the witnesses was (sic) conflicting."

The IDC imposed a forfeiture of 620 days of statutory good time, ordered that Brooks-Bey be placed in disciplinary segregation for 60 days and recommended a disciplinary transfer.

Brooks-Bey's primary argument before this court is that his right to due process was violated by the alleged failure of the IDC to make specific findings of the evidence relied upon to find him guilty. Brooks-Bey also alleges that the IDC denied him due process by its failure to provide him with sufficient notice of the facts upon which the charge was based; the failure of the IDC to verify the reliability of the investigative report prepared by the SIS; the failure of the IDC to have someone other than the reporting officer act as the investigatory officer; the failure of the IDC to provide a copy of the investigative report to his staff representative; and the failure of the IDC to consider the charge against him separately from related charges against other inmates.

In Jackson v. Carlson, 707 F.2d 943 (7th Cir. 1983), this court held that a deprivation of the statutory right under 18 U.S.C. § 4161 to good-time credits is a deprivation of liberty. See also Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983). Therefore, the due process requirements of the Constitution must be complied with in ...


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