SALAZAR v. BUTTS

Filing 11

ENTRY Discussing Petition for Writ of Habeas Corpus: For the reasons explained in this Entry, Salazar's habeas petition must be denied. Judgment consistent with this Entry shall now issue (see Entry for details). Copy to Petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 4/1/2014.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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ABEL SALAZAR,
Petitioner,
vs.
K. BUTTS Warden, Superintendent,
Respondent.

Case No. 1:13-cv-01293-JMS-DML

Entry Discussing Petition for Writ of Habeas Corpus
The petition of Abel Salazar for a writ of habeas corpus challenges a prison disciplinary
proceeding identified as NCF 13-05-0082. For the reasons explained in this Entry, Salazar’s
habeas petition must be denied.
Discussion
A. Overview
Prisoners in Indiana custody may not be deprived of good-time credits, Cochran v. Buss,
381 F.3d 637, 639 (7th Cir. 2004) (per curiam), or of credit-earning class, Montgomery v.
Anderson, 262 F.3d 641, 644-45 (7th Cir. 2001), without due process. The due process
requirement is satisfied with the issuance of advance written notice of the charges, a limited
opportunity to present evidence to an impartial decision maker, a written statement articulating
the reasons for the disciplinary action and the evidence justifying it, and “some evidence in the
record” to support the finding of guilt. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,
454 (1985); Wolff v. McDonnell, 418 U.S. 539, 570-71 (1974); Piggie v. Cotton, 344 F.3d 674,
677 (7th Cir. 2003); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000).
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B. The Disciplinary Proceeding
Salazar was charged with violating prison rules by attempting to traffic. The conduct
report states:
I Officer Tucker B. on the above date and approximate time opened the door to
pod 3 in delta unit where offender Salazar doc 119618 came out to retrieve
chemicals for pod 3. As offender Salazar doc 119618 was retrieving the chemicals
he had dropped a note near the toilet paper I had confiscated earlier in the day
which was located near the chemicals. Offender Salazar doc 119618 told me
(officer Tucker) that he had put that note in that spot. I officer Tucker then
quickly put offender Salazar doc 119618 back in pod 3 and retrieved the note.
When I officer tucker B opened the letter I Quickly noticed offender Salazar doc
119618 was trying to get me to bring in a pack of ciggarette (sic).
On May 10, 2013, Salazar was notified of the charge of Attempted Trafficking and
served with the conduct report and the notice of disciplinary hearing screening report. Salazar
was notified of his rights and pled not guilty. Salazar did not request witnesses, and did not
request any physical evidence.
On May 13, 2013, a hearing officer conducted a disciplinary hearing and found Salazar
guilty of the charge. Based on the hearing officer’s recommendations, the following sanctions
were approved: forty-five days of lost telephone and commissary privileges, a one-hundred fifty
(150) day deprivation of earned credit time, and a demotion from Credit Class 1 to Credit Class
2. Salazar’s administrative appeals were unsuccessful.
C. Analysis
Salazar seeks relief in his petition for habeas corpus on two grounds.1 First, Salazar
argues that he was not notified of the charges alleged against him in his native language as
required by Indiana Department of Corrections (“DOC”) policy 02-04-101. See dkt. 10-1.
Second, he argues that the evidence was insufficient to find him guilty of Attempted Trafficking.

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Salazar’s traverse states that he raises one claim, but the substance of his arguments reflect otherwise.

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Salazar’s first argument, that he was not notified of the charges in his native language as
required by DOC policy, is not persuasive. A violation of DOC policy does not entitled him to
relief because federal habeas relief is only available for a violation of the U.S. Constitution or
other federal laws. See Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). In addition, Salazar has not
provided any evidence that the failure to inform him of the charges in his native language caused
him any harm. At the disciplinary hearing, Salazar claimed that the note referenced in the
conduct report did not contain his writing, that he did not put the note in the spot where it was
found, and that he did not tell Officer Tucker anything. This testimony demonstrates that Salazar
knew what the charge was and defended against that charge by saying he did not do it. Salazar
has not pointed to any additional evidence he would have provided had he been notified of the
charge in his native language.
Next, Salazar argues that the evidence was insufficient to find him guilty. The “some
evidence” standard is lenient, “requiring only that the decision not be arbitrary or without
support in the record.” McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999). A rational
adjudicator could readily conclude from the content and surrounding circumstances of the note
referenced in the conduct report in No. 13-05-0082 that Salazar was attempting to traffic
contraband into the prison. Henderson v. United States Parole Comm’n, 13 F.3d 1073, 1077 (7th
Cir. 1993) (a federal habeas court “will overturn the . . . [conduct board’s] decision only if no
reasonable adjudicator could have found . . . [the petitioner] guilty of the offense on the basis of
the evidence presented”), cert. denied, 115 S. Ct. 314 (1994); see also Hill, 472 U.S. at 457
(“The Federal Constitution does not require evidence that logically precludes any conclusion but
the one reached by the disciplinary board.”). A conduct report alone may suffice as Asome

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evidence.@ McPherson, 188 F.3d at 786; see also Webb, 224 F.3d at 652 (even “meager” proof is
sufficient).
Salazar claims that the conduct report should be disregarded because it contains false
statements and hearsay. The fact that Salazar disagrees with the substance of the conduct report
is not sufficient to obtain habeas relief. The conduct report is written by someone with personal
knowledge of the contents of the letter. Under these circumstances, the use of hearsay in a
disciplinary proceeding is not objectionable. See Jackson v. Carlson, 707 F.2d 943, 948 (7th Cir.
1983) (finding hearsay statements sufficient to support disciplinary charges).
Finally, Salazar claims that video evidence would prove his innocence. But, Salazar did
not request video evidence and no video evidence was reviewed by the hearing officer. A[O]nly
evidence that was presented to the [hearing officer] is relevant” to whether the hearing officer’s
decision was supported by some evidence. Hamilton v. O'Leary, 976 F.2d 341, 346 (7th Cir.
1992).
D. Conclusion
“The touchstone of due process is protection of the individual against arbitrary action of
the government.” Wolff, 418 U.S. at 558. There was no arbitrary action in any aspect of the
charge, disciplinary proceedings, or sanctions involved in the events identified in this action, and
there was no constitutional infirmity in the proceeding which entitles Salazar to the relief he
seeks. Accordingly, Salazar’s petition for a writ of habeas corpus must be denied and the action
dismissed. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

_______________________________

04/01/2014
Date: __________________
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Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
ABEL SALAZAR
DOC # 119618
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Kathy Jo Bradley
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

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