UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

FREEMAN IRBY, )

)

Petitioner, )

) CAUSE NO. 3:16-CV-043

vs. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on a Petition under 28 U.S.C.

Paragraph 2254 for Writ of Habeas Corpus by a person in State

Custody Seeking Review of a Prison Disciplinary Sanction, filed by

Freeman Irby, a pro se prisoner, on January 29, 2016. Here, Irby

challenges a disciplinary determination made by a hearing officer

at the Indiana State Prison (“ISP”) under case number ISP 15-09-

0152. For the reasons set forth below, the court DENIES the

petition (ECF 1). The clerk is DIRECTED to close this case.

BACKGROUND

On September 14, 2015, Internal Affairs Investigator

Christopher Dustin prepared a conduct report charging Irby with

Offense B-212 battery. The conduct report stated: 

On 9/11/2015 at approx. 5:30 pm Offender Irby reported to

the Shift Supervisor’s Office and spoke to Officer Bass.

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Offender Irby reported to Officer Bass that he slammed

his finger in a door and severed the tip off.

Investigator Dustin reviewed the camera system and found

that Offender Irby was in the W1 bathroom, where he

punched Offender Simmons # 993697 in the face knocking

him back and down to the ground. Offender Irby then can

be observed leaning over Offender Simmons and continued

to strike him. Offender Irby during the assault placed

his finger in the mouth of Offender Simmons who then bit

down hard until the finger tip came off in his mouth.

Offender Irby cause[d] physical injury to Offender

Simmons leaving abbrassions [sic] on his Right cheek,

temple, and eye. 

ECF 7-1.

Irby was originally found guilty of this charge on September

28, 2015. ECF 7-11. But, during the administrative appeal process,

the charge was vacated and case remanded for a new hearing in order

for Investigator Dustin to provide some clarification of the

conduct report. Id.

The original conduct report was used on rehearing. Id. On

October 20, 2015, Irby was notified of the charge of battery and

served with a copy of the conduct report and the screening report.

ECF 7-3. The screening report reflects that he pled not guilty and

requested a lay advocate. He requested a witness statement from

Officer Crowe, a camera review of the incident, along with all

medical records, pictures and physician’s notes. Id.

On October 21, 2015, Investigator Dustin wrote a letter to the

Disciplinary Hearing Officer (“DHO”) clarifying the conduct report:

On 9/11/2015 I was assigned case # 15-ISP-0147 where

through the Investigation it was determined that Offender

Irby #902344 was observed in the camera striking Offender

Simmons #993697 in the West 1 bathroom, knocking offender

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Simmons to the ground and continuing to strike him (all

seen on camera footage) then leave the bathroom holding

his hand going to the ISO shift supervisors office where

he reported that he slammed his finger in the door

causing it to be severed. During the course of my

investigation I interviewed Offender Simmons who gave a

statement that he was in the bathroom and was attacked by

Offender Irby for doing his laundry in the sink. Offender

Simmons gave a recorded admission that while he was being

hit by Offender Irby he bit down hard on Irby’s finger

and bit it off. 

The Conduct report for offender Irby being involved in

the fight that was seen on the W1 camera leading up to

his finger being severed was a summary of all the facts

in the case, and at no time did I state or imply that you

could see his finger being bit off from the camera. All

the evidence of this case can be reviewed in the

Investigation and Intelligence department Case 15-ISP0147 so that Offender Irby would not have the information

that Offender Simmons admitted to the fight and to have

bit off the finger of Offender Irby. 

ECF 7-2.

A statement from Officer Crowe had been obtained and presented

at the original hearing; it was included in the confidential report

and another one was not obtained. ECF 7-3; ECF 7-6; ECF 11 at p.

15. The DHO conducted a video review, and prepared a summary:

Per request of inmate on this case rehearing, video was

reviewed from 4:55pm until 5:35pm of the ISO W1 shower

area. 

There was no activity in the W1 shower or dorm relating

to the incident until 4:58:57. At that time a white

unidentified inmate entered the bathroom & goes to the

sink area—appearing to be transferring clothing to the

sink. Numerous other inmates enter & exit while this

inmate is at the sink. No one seems to approach him,

speak to him, or approach the sink until 5:13pm when a

black inmate (Irby #902344) enters. The unidentified

inmate continues transferring clothes to & out of sink.

Irby remains in the bathroom pacing around the sink &

inmate. At 5:20:08 Irby follows the inmate that has now

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moved toward the shower/dressing area. (Irby is

identified by a picture compared to the same inmate

leaving dorm with paper toweling wrapped around his

hand.) 

At this time the black inmate (Irby) is observed punching

the unidentified inmate in the face. Up to this point, no

aggression is observed by the white inmate. Irby is seen

bent over the white inmate continuing to punch—it seems

the white inmate has been punched to the floor. Neither

inmate is then seen as they both are behind the wall

apparently on the floor. Both inmates then stand & go

into a fighting stance. The white inmate exits the

bathroom while Irby seems to be looking for something

(5:20:54). 

Irby leaves the dorm @ 5:21:20 via around the officer

desk. He is seen with paper towel around his hand. 

The white inmate returns to sink area shortly & then

again leaves while others seem to be cleaning the

altercation area. 

There is no additional dorm/bathroom activity up to when

viewing stopped at 5:35pm. 

Through IA investigation, the white inmate was

identified. 

ECF 7-7. Irby’s medical records were also obtained. ECF 11; ECF 7-

8. 

On October 26, 2015, the DHO held a disciplinary rehearing.

ECF 7-5. At the hearing, Irby provided a statement:

My job was to clean [the] bathroom. You made it sound

like I stalked him. I’m waiting on him to move his stuff.

When I came back, he was talking crazy. You didn’t see me

hitting him. You assumed. I didn’t get confinement

report. I want Sgt. at hearing (IDU). Your [sic] not

impartial—you shouldn’t hear the case. When did the

injuries come to him? You don’t want to hear that, huh?

I sent a request for 2 people (Ofc. Taylor & Ofc. on

duty). You’re digging this hole deeper & deeper. 

Id. 

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At the hearing, Irby alleged that he had sent a request for

statements from two other officers through prison mail a few days

before the hearing. Id. The DHO denied those two requests because

he never received them and also because the witnesses were not

relevant. After the hearing, the DHO found Irby guilty of battery,

in violation of B-212. She based her finding on the internal

affairs investigation, the video and video summary, the incident

report, the medical reports, the witness statements, the medical

costs, and the seriousness of the infraction. ECF 7-5. Irby

appealed to the Superintendent and Final Reviewing Authority, but

those appeals were denied. ECF 7-9; ECF 7-10.

Here, Irby raises five claims in his petition: (1) he did not

receive his restrictive housing report within 24 hours; (2) the DHO

violated his due process rights by denying he witness requests; (3)

the DHO was not impartial; (4) his due process rights were violated

because he was not able to view all of the evidence; and (5) there

is no evidence that he injured Offender Simmons.

DISCUSSION

 When prisoners lose earned time credits in a prison

disciplinary hearing, they are entitled to certain protections

under the Due Process Clause: (1) advance written notice of the

charges; (2) an opportunity to be heard before an impartial

decision maker; (3) an opportunity to call witnesses and present

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documentary evidence in defense when consistent with institutional

safety and correctional goals; and (4) a written statement by a

fact finder of evidence relied on and the reasons for the

disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 563 (1974).

To satisfy due process, there must also be “some evidence” to

support the hearing officer’s decision. Superintendent, Mass. Corr.

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

 First, Irby claims to be entitled to habeas relief because he

was placed on restrictive housing on September 11, 2015, but did

not receive his housing status report within 24 hours. While Wolff

requires written notice of the charges 24 hours before the hearing,

there is no such requirement that an inmate be given a restrictive

housing report within 24 hours of being placed in restrictive

housing. And, while Irby claims that the prison’s internal rules or

policies were violated, this would not entitle Irby to federal

habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(habeas relief is only available for a violation of the U.S.

Constitution or other federal laws); Hester v. McBride, 966 F.

Supp. 765, 775 (N.D. Ind. 1997) (violation of prison policy in

disciplinary proceeding could not support grant of habeas relief,

since federal habeas court “does not sit to correct any errors of

state law”). Moreover, this claim addresses his conditions of

confinement - restrictive housing- not the fact or length of his

custody. Thus, this claim can not be remedied in a habeas petition

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pursuant to section 2554. Preiser v. Rodriguez, 411 U.S. 475, 498-

99 (1973). 

Second, Irby complains that his witness requests were denied.

Irby requested Officer Crowe be at the rehearing. However, that

request was denied because Officer Cowe’s statement was included in

the original hearing and was in the confidential case file. Though

Irby wanted to cross-examine Officer Cowe at the rehearing, an

inmate in a prison disciplinary hearing has no right to confront or

cross-examine witnesses. Piggie, 342 F.3d at 666; see also Wolff,

418 U.S. at 556 (“Prison disciplinary proceedings are not part of

a criminal prosecution, and the full panoply of rights due a

defendant in such proceedings does not apply”). Thus, this does not

warrant habeas relief.

Irby was also denied requested statements from the IDU

Sergeant and Officer Taylor. The DHO denied that request because

she was unaware of the requests before the hearing. It is true that

untimely day of hearing evidentiary hearing requests can be denied.

Sweeney, 113 F.3d at 720; Hamilton, 976 F.2d at 346-47. However,

even if Irby requested those statements in a timely manner, neither

officer was present at the time of the incident. So, their

testimony would be irrelevant as to whether Irby committed battery.

A hearing officer may deny witness or evidence requests that

threaten institutional goals or are irrelevant, repetitive, or

unnecessary. Piggie v. Cotton , 342 F.3d 660, 678 (7th Cir. 2003). 

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Furthermore, a hearing officer’s improper exclusion of

evidence will be deemed harmless unless there is some indication

from the record that the evidence “might have aided [the

prisoner’s] defense.” Id. at 666. Irby does not identify anything

from these officers that would prove to be exculpatory or that

might have aided his defense. Thus, even if the hearing officer

improperly excluded these witnesses, it would have been a harmless

error. Thus, he is not entitled to habeas relief on this ground. 

Third, Irby complains that he was denied an impartial hearing

officer. In the prison disciplinary context, adjudicators are

“entitled to a presumption of honesty and integrity,” and “the

constitutional standard for improper bias is high.” Piggie, 342

F.3d at 666. Due process prohibits a prison official who was

personally and substantially involved in the underlying incident

from acting as a decision-maker in the case. Id. However, due

process is not violated simply because the hearing officer knew the

inmate, presided over a prior disciplinary case, or had some

limited involvement in the event underlying the charge. Id. 

Here, Irby believes that the hearing officer was generally

biased, but there is no indication that she was involved in any way

in the events underlying the charge. He appears to believe the

hearing officer was impartial because the officer made adverse

rulings against him. But adverse rulings alone do not establish

impermissible bias. Liteky v. United States, 510 U.S. 540, 555–56

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(1994). Thus, this ground does not entitle him to habeas relief.

Fourth, Irby generally complains that he was not able to view

all of the evidence. However, the fact that Irby did not receive

the full contents of the confidential case file or view that actual

video does not mean that his due process rights were violated.

Indeed, the DHO is entitled to review confidential reports without

disclosing them to the inmate to further institutional safety and

security. Henderson v. United States Parole Comm’n, 13 F.3d 1073,

1078 (7th Cir. 1994); Mendoza v. Miller, 779 F.2d 1287, 1293 (7th

Cir. 1985). Upon review of the confidential case file, the Court

agrees that the materials should not be disclosed to Irby for

safety and security reasons. Nor is Irby entitled to view Simmons’

medical records, as those are irrelevant.

Fifth, Irby claims there was insufficient evidence to find him

guilty of battery. 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.” Superintendent v. Hill, 472 U.S. 445,

455-56 (1985). A court will overturn the hearing officer’s decision

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only if “no reasonable adjudicator could have found [the prisoner]

guilty of the offense on the basis of the evidence presented.”

Henderson, 13 F.3d at 1077. Additionally, 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).

Offense B-212 battery is defined as “committing a battery upon

another person without a weapon or inflicting bodily injury.” ECF

7 at 12. (Citing the Adult Disciplinary Process for Offenses within

the Indiana Department of Corrections). In this case, it is clear

that the record contains “some evidence” to support the hearing

officer’s determination that Irby was guilty of battery. The

conduct report is some evidence that Irby battered another inmate.

McPherson, 188 F.3d at 786 (7th Cir. 1999) (conduct report alone

provided some evidence to support disciplinary determination). This

is also corroborated by other evidence. The confidential case file

outlines the investigation and includes Offender Simmons’

statement. ECF 11. The video review establishes that a black inmate

identified as Irby was observed punching a white inmate. Again,

there is more than sufficient evidence to have found him guilty of

battery.

Not only is there sufficient evidence to find Irby 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 Irby guilty of battery, and he has

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not made a showing that his due process rights have been violated.

CONCLUSION

For the reasons set forth above, the Court DENIES the petition

(ECF 1). The clerk is DIRECTED to close this case.

DATED: April 21, 2017 /s/RUDY LOZANO, Judge

United States District Court

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