UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

JASON D. PENNINGER, ) ) Petitioner, ) ) v. ) No. 1:22-cv-00414-JPH-DML ) WILLIAM HYATT, ) ) Respondent. )

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS

Petitioner Jason D. Penninger filed a petition for writ of habeas corpus under

challenging a June 9, 2021, Miami Correctional Facility disciplinary proceeding identified as MCF 21-05-0343. Dkts. 2 and 8-1. The Court directed the respondent to show cause why the writ should not issue. Dkt. 5. Respondent filed a motion to dismiss, dkt. 8, and a brief in support, dkt. 9. As of the date of this Order, Mr. Penninger has not responded to the motion to dismiss. I. Discussion Respondent argues that Mr. Penninger is not "in custody" for purposes of habeas relief under Section 2254 because he only received a written reprimand and a 30-day loss of commissary privileges. Dkt. 9 at 1. "[I]n all habeas corpus proceedings under

, the successful petitioner must demonstrate that he 'is in custody in violation of the Constitution or laws or treaties of the United States.'" Brown v. Watters,

(7th Cir. 2010) (quoting

(a)). "It is the custody itself that must violate the Constitution. Accordingly, prisoners who are not seeking earlier or immediate release are not seeking habeas corpus relief." Washington v. Smith,

(7th Cir. 2009). In the context of prison disciplinary proceedings, this means that to be considered "in custody," the petitioner must have been deprived of good-time credits, Cochran v. Buss,

(7th Cir. 2004) (per curiam), or of credit-earning class, Montgomery v. Anderson,

(7th Cir. 2001). When such a sanction is not imposed, the prison disciplinary officials are "free to use any procedures [they] choose[], or no procedures at all." /d. at 644. The Court reviewed the Report of Disciplinary Hearing in this matter and finds it supports Respondent's contention that Mr. Penninger was not denied good-time credits or credit-earning class. Dkt. 8-4. II. Conclusion Accordingly, Respondent's motion to dismiss, dkt. [8], must be granted. Mr. Penninger's petition for a writ of habeas corpus is dismissed without prejudice for lack of jurisdiction. Final Judgment in accordance with this decision shall now issue. SO ORDERED. Date: 7/7/2022 Slam ruck ltanbove James Patrick Hanlon United States District Judge Southern District of Indiana Distribution: JASON D. PENNINGER 936946 PENDLETON - CF PENDLETON CORRECTIONAL FACILITY Electronic Service Participant — Court Only David Corey INDIANA ATTORNEY GENERAL [email protected]