UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

MICHAEL DROGOSZ, )

)

 Petitioner, )

)

 v. ) CIVIL NO. 3:13cv671

)

SUPERINTENDENT )

Indiana State Prison, )

)

 Respondent. )

OPINION AND ORDER

This matter is before the court on an amended petition for habeas corpus pursuant to 28

U.S.C. § 2254, filed by the petitioner, Michael Drogosz (“Drogosz”), on August 28, 2013. The

respondent, Superintendent of the Indiana State Prison (“Superintendent”), filed his response to

order to show cause on December 18, 2013. On November 12, 2014, Drogosz filed traverse a to

the response. On this same date, Drogosz filed a motion to file amended complaint.

For the following reasons, both motions will be denied.

Discussion

Drogosz is in the custody of Respondent at the Indiana State Prison serving out his

sentences imposed for 2010 convictions for attempted murder and conspiracy to commit robbery

with a projected release date of May 29, 2045. He brings the current action pursuant to 28

U.S.C. § 2254 challenging a July 2012 prison disciplinary conviction for attempting to engage in

trafficking, which resulted in a loss of privileges, specifically, thirty days of access to the

commissary, as well as 120 days disciplinary segregation and a deprivation of 120 days of credit

time.

On July 18, 2012, Robert Hough of the Internal Affairs Division of the Indiana
Department of Correction wrote a conduct report in case number 12-07-0262 charging Drogosz

with attempting to engage in trafficking. Specifically, on July 18, 2012, it was discovered that

Drogosz’s father had sent a J-Pay letter to Drogosz, along with a coded message to allow

Drogosz to access a J-Pay account. It was determined that numbers in the J-Pay letter were to a

Green Dot prepaid debit card. When interviewed, Drogosz acknowledged that he and his father

had worked this out and that he was expecting the numbers.

On the same date, the Internal Affairs Division within the Indiana Department of

Correction initiated an investigation into the incident. On July 24, 2012, Drogosz was

interviewed by the Department’s Internal Affairs Division in connection with the incident.

On August 2, 2012, Drogosz was notified of the charge and served with the screening

report. This report notified Drogosz of his rights, and he pled not guilty. Drogosz requested

assistance with his case from a lay advocate. He indicated he did not wish to call any witnesses,

but requested access to the recorded interview that the Internal Affairs Division conducted. 

Drogosz did not waive his right to twenty-four hour prior notice of the hearing in his case. The

hearing was to be held, at the earliest, on August 6, 2012. 

On August 7, 2012, a hearing officer conducted a disciplinary hearing and found

Drogosz guilty of the charge of attempted trafficking. During the hearing, Drogosz claimed that

he never admitted guilt during the July 24, 2012 interview. He also stated that English is not his

first language and he was not informed during the interview that he was being recorded.

Drogosz’s request for access to the recorded interview was denied. The hearing officer

found, however, that the confidential report supported the conduct report and, ultimately, the

charge of attempted trafficking. The hearing officer relied upon staff reports, Drogosz’s

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statement, and the confidential report. Determining that above-referenced evidence supported the

charge and the conduct report, the hearing officer found Drogosz guilty of the charge of

attempted trafficking. Based upon the recommendation of the hearing officer, the following

sanctions were imposed: thirty days of access to the commissary; 120 days disciplinary

segregation; and a deprivation of 120 days of credit time.

Drogosz appealed the imposition of these sanctions to the facility head, who denied the

appeal. The final reviewing authority within the Indiana Department of Correction denied

Drogosz’s appeal as well. Drogosz then filed the present petition.

Writs may issue 28 U.S.C. § 2254 for violations of the Constitution, laws, or treaties of

the United States. 28 U.S.C. § 2254(a). The five safeguards to which an offender is entitled

when prison disciplinary proceedings result in a lengthened period of imprisonment can be

summarized as follows: (a) Written notice of the charges at least 24 hours before the hearing;

(b) The opportunity to be heard before an impartial decision maker; (c) The opportunity to call

witnesses and present documentary evidence in defense when consistent with institutional safety

and correctional goals; (d) A written statement by the fact-finder of the evidence relied on and

the reasons for the disciplinary action; and (e) “Some evidence” to support the decision of the

board. Wolff v. McDonnell, 418 U.S. 539, 563-567 (1974); Superintendent v. Hill, 472 U.S. 445,

454 (1985).

Drogosz makes the following allegations in his Petition: 1) he was denied due process

because an Internal Affairs officer’s interview of Drogosz surrounding the conduct that gave rise

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to this case was recorded without his knowledge or consent; 2) the recording of the conversation 1

implicated a violation under the Fifth Amendment to the U.S. Constitution; 3) the submission of

or reliance upon the report of investigation of incident violated due process because he never

admitted he was guilty of the charge; 4) the hearing officer in his proceeding was not impartial;

5) due process was violated because exculpatory evidence was not considered; 6) he was not

given the written summary of the recorded interview in violation of Indiana Department of

Correction policy; 7) Indiana Department of Correction staff, including Drogosz’s lay advocate,

violated Department policy; 8) the conditions in segregation were “a far departure from the

normal environment any person should endure”; 9) he was not given access to the courts; 10) his

interaction with library staff was in violation of the U.S. Constitution and Department policy; and

11) he was denied access to library materials.

Several of Drogosz’s claims may be quickly denied for failing to raise the claims before

the Department of Corrections (and also for challenging the Department of Correction’s

policies). Drogosz admits that he failed to raise his first, second, eighth, and eleventh grounds

for habeas relief before the facility and Department, but claims that he could not have done so

because he was unaware of such claims at the time he filed his appeals. Procedural default may

be excused under certain circumstances, but no such circumstances are present here. See, e.g.,

Weddington v. Zatecky, 721 F.3d 456, 465-66 (7th Cir. 2013) (citing and quoting Valverde v.

Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (“[A] person is plainly ‘prevented from filing a

pleading for some period of time if he is deprived of the sole copy of that pleading”)). Drogosz

 On September 15, 2014, this court received a letter from Drogosz in which he 1

questioned whether the recording was a video recording or an audio recording. The recording is

a video recording. 

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has not shown cause to excuse his failure to raise these issues, and he cannot rely on his belated

rationale that he lacked legal materials to allow him to raise the challenges at the administrative

levels. See Henderson v. Cohn, 919 F.2d 1270, 1272-73 (7th Cir. 1990) (discussing the

procedural requirement to raise a claim at the state level and stating that the “failure to act or

think like a lawyer cannot be cause for failing to assert a claim”) (internal citations omitted)). 

Additionally, several of Drogosz’s allegations claim violations of state policies. These

arguments are inappropriate in a habeas petition. Hester v. McBride, 966 F.Supp. 765, 774-75

(N.D. Ind. 1997).

Drogosz makes several broad-based due process claims. While prisoners have due

process rights (Wolff, 418 U.S. at 555-56), these rights are restricted to allow prison officials to

serve correctional goals and to maintain the safety of all prisoners and staff. See id. at 556, 94

S.Ct. 2963; Rowe v. DeBruyn, 17 F.3d 1047, 1049 (7 Cir.1994). The applicable guarantees were th

met here. Drogosz received written notice of the charges, was informed of his rights, and was

entitled to request witnesses and physical evidence. Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563-

567. He received written notice of the charges at least twenty-four hours before the hearing and

had the opportunity to be heard before an impartial decision maker. The hearing officer provided

a written statement showing the reasons for the disciplinary action. Drogosz had the right to

appeal the disciplinary sanctions. For these reasons, due process was satisfied, and Drogosz’s

claims regarding access to the courts and to library materials must fail because he cannot show

how he was injured or prejudiced. 

Drogosz’s claims that officials were required to obtain his consent to record his interview

and that exculpatory evidence was disregarded also fail because the applicable due process

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requirements were satisfied. With respect to Drogosz’s complaints surrounding the interview, the

court reviewed the video recording and he appeared to know that the interview was recorded. 

With respect to the exculpatory evidence issue, while procedural due process requires prison

disciplinary officials to disclose material exculpatory evidence to a charged offender (Piggie v.

Cotton, 344 F.3d 674, 678 (7 Cir. 2003)), prison officials need not provide duplicative evidence.

th

Forbes v. Trigg, 976 F.2d 308, 318 (7th Cir.1992). Drogosz claims that the recorded interview

constituted exculpatory evidence, but he was given information concerning the contents of the

recording of the interview, and that document does not show that either the recording or the

Internal Affairs report contained exculpatory evidence. Further, and as discussed more fully

below, prison officials are not required to give prisoners access to evidence that could threaten

institutional safety or correctional goals. Piggie, 344 F.3d at 677 (citing Wolff, 418 U.S. at 566). 

Drogosz next argues that the recording of the interview violated the Fifth Amendment to

the U.S. Constitution. The Fifth Amendment “requires that ‘[n]o person . . . shall be compelled

in any criminal case to be a witness against himself.” Chavez v. Martinez, 538 U.S. 760, 766

(2003) (emphasis in original). Compelled statements may not be used against a defendant at trial,

but it is not until use of such statements in a criminal case that a violation occurs. Id. Because the

CAB hearing was not a criminal proceeding, Drogosz’s claim in this regard is without merit. 

 Drogosz’s claim that he was deprived of access to evidence in the form of the interview

recording also lacks merit. It is well settled that correctional facility officials are within their

authority – and are, in fact, directed – to withhold from offenders confidential information

because the release of such information could compromise institutional safety or correctional

goals. See Wolff, 418 U.S. at 555-56. Certain requirements must be met when confidential

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information is used against an offender (see McCollum v. Williford, 793 F.2d 903, 906-08 (7th

Cir. 1986); Mendoza v. Miller, 779 F.2d 12187, 1293 (7th Cir. 1985)); however, the charge

against Drogosz and evidence underpinning it (the discovery of the J-Pay letter) were not

confidential, and some of the information contained in the confidential report was noted in a

document provided to Drogosz. 

Drogosz also complains that the hearing officer in his case did not act impartially.

One of the procedural due process rights afforded to offenders during a disciplinary hearing is the

right to be heard before an impartial decision maker. Wolff, 418 U.S. at 563-67. However, due

process would require recusal of a decision maker only where that individual has a direct or

otherwise substantial involvement in the circumstances underlying the charges against the

offender. Redding v. Fairman, 717 F.2d 1105, 1113 (7th Cir. 1983). This was not the case with

regard to Drogosz (see Respondent Exhibits A1 and C1), and in any event, there is no evidence

of a lack of impartiality.

To the extent Drogosz argues that his segregation violated his Eighth Amendment rights

his claim fails. There is no evidence that Drogosz suffered in any way as a result of the

segregation or that he was sanctioned excessively. Therefore, he cannot pursue an Eighth

Amendment claim. See, e.g., Rodriguez v. Briley, 403 F.3d 952, 953 (7th Cir. 2005) (a prisoner

“cannot, in short, be permitted to engineer an Eighth Amendment violation.”) (citing Pearson v.

Ramos, 237 F.3d 881, 886 (7th Cir. 2001)). Thus, this court finds that none of Drogosz’s

arguments provide a basis for a writ of habeas corpus.

To the extent Drogosz challenges the sufficiency of the evidence used in his disciplinary

hearing that challenge is without merit. So long as there is some evidence that Drogosz attempted

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to engage in trafficking, and that he received necessary due process, the finding of guilt and

imposition of sanctions should not be disturbed. See McPherson v. McBride, 188 F.3d 784, 787

(7th Cir. 1999) (holding that an offender is not entitled to habeas relief so long as offender

receives due process and there is some evidence of guilt). As discussed above, Drogosz received

all the process to which he was entitled. And as set forth below, the evidence used to support the

charge of and conviction for attempted trafficking met the requisite standard.

The standard necessary for a disciplinary board to find an offender guilty is “some

evidence.” Hill, 472 U.S. at 454. “Some evidence” is defined as “whether there is any evidence

in the record to support the disciplinary board’s conclusion.” Id. at 455. The standard of some

evidence “does not require evidence that logically precludes any conclusion but the one reached

by the disciplinary board.” Id. at 457. The determination should be upheld if “there is any

evidence in the record that could support the conclusion reached.” Id. Even “meager” proof will

suffice so long as “the record is not so devoid of evidence that the findings of the disciplinary

board were without support or otherwise arbitrary.” Id. This is a “lenient” standard, requiring

no more than “a modicum of evidence.” Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000),

citing Hill, 472 U.S. at 457, and Lenea v. Lane, 882 F.2d 1171, 1175 (7th Cir. 1989).

Determining whether the constitutional standard is satisfied does not require examination

of the entire record, independent assessment of the credibility of witnesses, or weighing of the

evidence. Instead, the 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.

It is clear that the record in this case contains at least “some evidence” to support the

hearing officer’s finding that Drogosz was guilty of attempted trafficking. A conduct report

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alone may provide “some evidence” of guilt. McPherson, 188 F.3d at 786. A prison disciplinary

conviction for attempted trafficking involves an attempt to engage in trafficking as defined in

Ind. Code § 35-44.1-3 with anyone who is not an offender residing in the same facility. Under

Ind. Code § 35-44.1-3-5(b), version a,

(b) Except as provided in subsection (d) [which is not relevant here], a person

who, without the prior authorization of the person in charge of a penal facility or

juvenile facility knowingly or intentionally: (1) delivers, or carries into the penal

facility or juvenile facility with intent to deliver, an article to an inmate or child

of the facility; commits trafficking with an inmate, a Class A misdemeanor.

In the present case, the conduct report shows that during Officer Robert Hough’s interactions

with Drogosz, it was shown that Drogosz obtained from his father materials that would allow

him to obtain an item he is not permitted to have in the correctional facility (i.e., money outside

any prison account). Moreover, evidence in the form of the report of investigation of incident

form showed that Drogosz planned with his father to obtain a pre-paid debit card. Accordingly,

the charge of trafficking was supported by the conduct report and the investigative materials

upon which the hearing officer relied. Clearly, the evidence was sufficient to find Drogosz guilty

of attempted trafficking. Therefore, his petition will be denied in its entirety.

A review of Drogosz’s proposed amended complaint reveals that Drogosz has failed to

add anything to his proposed complaint that would cure the myriad defects in his original

petition. Thus the motion for leave to file will be denied.

Conclusion

On the basis of the foregoing, Drogosz’s amended petition for writ of habeas corpus [DE

4] is hereby DENIED. Further, Drogosz’s motion for leave to file amended complaint [DE 30] is

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also hereby DENIED.

 Entered: January 29, 2014.

 s/ William C. Lee 

 William C. Lee, Judge

 United States District Court

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