GREEN v. SUPERINTENDENT

Filing 21

Entry Denying Petition for Writ of Habeas Corpus and Directing Entry of Final Judgment - The petition of Phillip L. Green for a writ of habeas corpus challenges a prison disciplinary proceeding, NCF 16-02-0153, in which he was found guilty of sexu al conduct. For the reasons explained in this entry, Mr. Green's habeas petition must be denied. Judgment consistent with this Entry shall now issue. Judgment consistent with this Entry shall now issue. (Copy to Petitioner via U.S. Mail) Signed by Judge Jane Magnus-Stinson on 3/7/2018.(JDC) Modified on 3/7/2018 (JDC).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PHILLIP L. GREEN,
Petitioner,
v.
SUPERINTENDENT New Castle Correctional
Facility,
Respondent.

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No. 1:17-cv-00072-JMS-DLP

Entry Denying Petition for Writ of Habeas Corpus
and Directing Entry of Final Judgment
The petition of Phillip L. Green for a writ of habeas corpus challenges a prison
disciplinary proceeding, NCF 16-02-0153, in which he was found guilty of sexual conduct. For
the reasons explained in this entry, Mr. Green’s habeas petition must be denied.
I. Overview
Prisoners in Indiana custody may not be deprived of credit time, Cochran v. Buss, 381
F.3d 637, 639 (7th Cir. 2004), 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); Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011); Piggie v. Cotton,
344 F.3d 674, 677 (7th Cir. 2003); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000).

II. The Disciplinary Proceeding
On February 21, 2016, Captain R. Adams issued a Report of Conduct charging Mr. Green
with a violation of Code B-216, sexual conduct. The Report of Conduct states:
On Sunday, February 21, 2016, at approximately 1951 hours, I Captain R. Adams
was reviewing video footage of check point D, when I witnessed offender Phillip
Green #238237 and offender Corey Craig #156913 walking passed the elevator
towards chow hall 1 door and went out of video footage. I Captain Adams
checked on both offenders. I witnessed offender Green standing with his back
against the wall with both of his hands on top of offender Craig’s head while his
penis was inside his mouth. When asked about the incident, offender Green
admitted to being involved in sexual conduct with offender Craig. Offender Green
was advised that he will be receiving a conduct report for code violation B-216
(sexual conduct).
Dkt. 13-1.
Mr. Green was notified of the charge on February 23, 2016, when he was served with the
Report of Conduct and the Notice of Disciplinary Hearing (Screening Report). Dkt. 13-2. Mr.
Green requested as witnesses Sergeant Gard and offender C. Craig. Id. He also requested a
review of the camera on February 21, 2016, at 1951 on check point D. Id.
Sergeant Gard stated:
While in Medical I asked Offender Green #238237 what he and Offender Craig
#156913 were doing by the entrance of chow hall one. Green said, “I was
touching his penis on the outside of his clothes.” I then asked if the situation was
consensual or if Craig made him do it, Green replied, “It was consensual.”
Dkt. 13-3.
Sergeant Gard also submitted a second statement:
I did not see any sexual act between Green and another offender. However Green
did say he was touching offender Craig #156913 on the penis outside of his
clothing.
Dkt. 13-4.

Offender Craig submitted a statement that, “On Sunday, February 21 2016 me and Green
was not having sexual condact [sic] with each other.” Dkt. 13-5.
A summary of the video was prepared, stating:
The video for the above case was reviewed as the offender requested. Video
shows offenders Green, Phillip #238237 and Craig, Corey at check point D then
look around as they move off camera to the entrance to chow hall 1. Camera does
not record sound.
Dkt. 13-6.
The Hearing Officer conducted a disciplinary hearing on March 1, 2016. Dkt. 13-8. The
Hearing Officer noted that Mr. Green submitted a lengthy written statement. Dkt. 13-8, pp. 2-3.
The Hearing Officer considered the conduct report, the video evidence, and all of the statements
and concluded that Mr. Green was guilty of sexual conduct. The sanctions included commissary
and phone restrictions, less than 15 days in disciplinary segregation, the deprivation of 90 days
of earned credit time, and the demotion from credit class I to II. Dkt. 13-8, p. 1. The Hearing
Officer imposed the sanctions because of the seriousness and nature of the offense and the
degree to which the violation disrupted/endangered the security of the facility. Id.
Mr. Green filed an appeal to the Facility Head, which was denied. Dkt. 13-9. He then
appealed to the Final Review Authority, who denied the appeal on April 12, 2016. Dkt. 13-10.
III. Analysis
Mr. Green argues that his due process rights were violated during the disciplinary
proceeding. His claims are that: 1) he did not receive an adequate statement of the findings and
reason for finding him guilty; 2) the video did not support a guilty finding; 3) he was denied his
right to have his witness Sergeant Gard present live testimony; and 4) he was denied an impartial
decision-maker. Dkt. 1, p. 2.

The respondent argues that Mr. Green did not exhaust his claims by including them in his
appeals, and that they are therefore procedurally defaulted. Procedural default caused by failure
to exhaust administrative review can be overcome if the petitioner shows cause and prejudice or
shows that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Moffat v. Broyles, 288 F.3d 978, 982 (7th Cir.
2002).
On appeal, Mr. Green argued that the only evidence against him was the conduct report
and that the conduct report was wrong. Dkt. 13-9, p. 2. He asserted that what the conduct report
said never happened. He argued that the conduct report did not accurately state his and the other
offender’s positions when they were seen. He further asserted that Sergeant Gard entered at the
same time as Adams but Sergeant Gard stated that he saw no sexual activity. Mr. Green argued
on appeal that the conduct report was written out of anger and prejudice, and was based on
assumptions.
The Court agrees that the four specific issues brought in this case were not raised on
appeal and that Mr. Green has not shown cause or prejudice. The Court also finds, however, that
claim 2 should be construed as a challenge to the sufficiency of the evidence, the claim that was
raised on appeal. Therefore, the Court will consider the sufficiency of the evidence.
Mr. Green argues that the conduct described in the conduct report did not take place and
that Sergeant Gard said that he did not see any sexual act between Mr. Green and the other
offender. Mr. Green is essentially asking the Court to reweigh the evidence, which is something
the Court cannot do. Sergeant Gard’s statement as to what he saw was considered by the Hearing
Officer. The Hearing Officer considered the conduct report, the witness statements, and Mr.
Green’s statement. Dkt. 13-8. He still found Mr. Green guilty.

Unfortunately for Mr. Green, “a hearing officer’s decision need only rest on ‘some
evidence’ logically supporting it and demonstrating that the result is not arbitrary.” Ellison v.
Zatecky, 820 F.3d 271, 274 (7th Cir. 2016). The “some evidence” evidentiary standard in this
type of case is much more lenient than “beyond a reasonable doubt” or even “by a
preponderance.” See Moffat v. Broyles, 288 F.3d 978, 981 (7th Cir. 2002) (hearing officer in
prison disciplinary case “need not show culpability beyond a reasonable doubt or credit
exculpatory evidence.”); McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999) (“In
reviewing a decision for ‘some 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.”) (internal quotation omitted). “[T]he 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.
“Sexual conduct” B-216 is defined in the Indiana Department of Correction (“IDOC”),
Adult Disciplinary Process, Appendix I: Offenses (June 1, 2015), as engaging in any of the
following:
• Sexual intercourse, as defined in this Administrative Procedure, with
the consent of the other offender
• Making an explicit request, hiring, or coercing another person to have
sexual contact
• Having contact with or performing acts with an animal that would be
sexual intercourse or sexual contact if with another offender
• Clutching, exposing, fondling, or touching the offender’s own intimate
parts for the sexual arousal of the offender or others, whether clothed or
unclothed, while observable by others.
In Mr. Green’s own statement, he admitted to begging the other offender to meet him.
Dkt. 13-8, p. 2. He also stated that “Corey was the one against the wall, not me. I was the one
with my hands on him, not vise [sic] versa.” Id. Sergeant Gard reported that Mr. Green told him

that Mr. Green touched the other offender’s penis through his clothing. The conduct to which
Mr. Green admitted appears to satisfy the second prong of the above definition of “sexual
conduct.” Touching another man’s penis, even if through his clothing, meets the IDOC definition
of sexual contact. See B-204 defining “sexual contact” as including “intentional touching, either
directly or through the clothing, of the genitalia…” There is some evidence in the record that
supports the finding of guilt in this case. Even though the video evidence did not support a
finding of guilt, the conduct report, along with Sergeant Gard’s second statement and Mr.
Green’s admission, constituted sufficient evidence in this case.
Mr. Green was given proper notice and had an opportunity to defend the charge. The
Hearing Officer described the evidence that was considered. There was sufficient evidence in the
record to support the finding of guilt. Under these circumstances, there were no violations of Mr.
Green’s due process rights.
IV. 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 proceedings. Accordingly, Mr. Green’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.

Date: 3/7/2018

Distribution:
Marjorie H. Lawyer-Smith
INDIANA ATTORNEY GENERAL
[e-mail]
PHILLIP L. GREEN
238237
NEW CASTLE CORRECTIONAL FACILITY
Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362