FLAGG v. WARDEN

Filing 19

ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING FINAL JUDGMENT - Mr. Flagg's petition for a writ of habeas corpus is denied, and the action is dismissed with prejudice. Judgment consistent with this Entry shall now issue. (SEE ORDER) Signed by Judge James R. Sweeney II on 9/7/2021.(KAA)

Case 2:20-cv-00470-JRS-DLP Document 19 Filed 09/07/21 Page 1 of 9 PageID #: 139

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JUAN FLAGG,
Petitioner,
v.
WARDEN,
Respondent.

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No. 2:20-cv-00470-JRS-DLP

ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DIRECTING FINAL JUDGMENT
Juan Flagg's petition for a writ of habeas corpus challenges his conviction in prison
disciplinary case WVW 20-04-0016. For the reasons explained in this Entry, Mr. Flagg's petition
is denied.
A. Overview
Prisoners in Indiana custody may not be deprived of good-time credits or of credit-earning
class without due process. Ellison v. Zatecky, 820 F.3d 271, 274 (7th Cir. 2016); Scruggs v. Jordan,
485 F.3d 934, 939 (7th Cir. 2007); see also Rhoiney v. Neal, 723 F. App'x 347, 348 (7th Cir. 2018).
The due process requirement is satisfied with: 1) the issuance of at least 24 hours advance written
notice of the charge; 2) a limited opportunity to call witnesses and present evidence to an impartial
decision-maker; 3) a written statement articulating the reasons for the disciplinary action and the
evidence justifying it; and 4) "some evidence in the record" to support the finding of guilt.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); see also Wolff v. McDonnell,
418 U.S. 539, 563-67 (1974).

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B. Disciplinary Proceeding
Indiana Department of Correction (IDOC) Officer C. Kolarick wrote a conduct report
charging Mr. Flagg with a violation of IDOC Adult Disciplinary Code A-117, battery against a
staff person:
On April 14th 2020 at approximately 11:05 A.M., I, C/o Kolarick, entered the 700
range of B-West in the SCU in response to Offender Flagg, Juan DOC # 121969
complaining about his Kosher trays. After explaining to Offender Flagg, Juan DOC
# 121969 that his trays were correct, Offender Flagg, Juan DOC # 121969 began
squirting a milky white substance on me through his cuffport. The milky white
substance struck me on my chest and head area. Offender Flagg, Juan DOC #
121969 resides in SCU B-West Cell 712.
Dkt. 9-1. Photographs were taken following the incident and included with the conduct report. Id.
Officer Woodburn provided a witness statement that he saw Officer Kolarick "being struck by an
unknown substance coming from the top range in the direction of 712[.]" Dkt. 9-12.
Mr. Flagg was notified of the charge on April 22, 2020, and he pled not guilty and declined
to call any witnesses. Dkt. 9-2. He requested a lay advocate. Id. The screening report noted in the
physical evidence box that pictures would be provided. Id.
Mr. Flagg requested a continuance of his hearing to add to his witness list and to receive
additional documentary evidence. Dkt. 9-4. He requested that Dr. Byrd provide a statement about
his medical records, that Counselor Dugan provide testimony about his state of mind during the
incident and provide his 30-day reviews, that Intelligence and Investigations complete an
investigation, 1 and that his own written report be considered. Id. Mr. Flagg also requested the video
evidence during the incident. Id. Mr. Flagg's hearing was ultimately postponed three times due to
caseload and to obtain the requested evidence. Dkt. 9-6.

1

An investigation was not conducted because there was no report that the substance involved a
bodily waste. See dkt. 9-10.
2

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The disciplinary hearing officer (DHO) prepared a written summary of the video, as Mr.
Flagg was not allowed to review it for security reasons. Dkt. 9-9. The summary stated:
10:57:41am – time on video – A nurse and Officer Woodburn enter SCU B West
700 range during med pass on the bottom range, then they go upstairs to 712. It
appears Offender Flagg, Juan 121969 refuses his medication. Next they go back
downstairs to cell 704
11:00:27am – The nurse and Woodburn are still at cell 704. Officer Kolarick enters
the range and is standing by the wall across from cell 701 fixing his face mask
11:00:29am – Offender Flagg sticks his arm out the cuff port of the cell 712.
Offender Flagg has a gold/yellow bottle in his hand and he slings a liquid substance
over the upper ledge on to officer Kolarick below.
Id. The Court has reviewed the video filed ex parte and finds that it is accurately described by the
written summation. The Court has also reviewed the sealed exhibit G and G-1 which consists of
photographs related to the incident and Mr. Flagg's medical records. Dkt. 10.
Mr. Flagg prepared a written statement for his hearing which was held on May 26, 2020.
Dkt. 9-7; dkt. 9-8. The DHO considered the staff reports, Mr. Flagg's statement, photographic
evidence, the video evidence, and Mr. Flagg's medical records and found him guilty. Dkt. 9-7. Mr.
Flagg's sanctions included a credit class demotion. Id.
Mr. Flagg's appeals to the Facility Head and IDOC Final Reviewing Authority were
unsuccessful. Dkt. 9-13; dkt. 9-14. He then filed his petition pursuant to 28 U.S.C. § 2254. Dkt. 2.
C. Analysis
Mr. Flagg raises the following grounds in his petition: (1) the DHO was not impartial; (2)
he was denied a lay advocate in accordance with IDOC policy; (3) the evidence was insufficient;
and (4) his Eighth Amendment rights were violated. Id.
1. Impartial DHO
A prisoner in a disciplinary action has the right to be heard by an impartial decision-maker.

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Hill, 472 U.S. at 454. Hearing officers "are entitled to a presumption of honesty and integrity"
absent clear evidence to the contrary. Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003); see
Perotti v. Marberry, 355 F. App'x 39, 43 (7th Cir. 2009) (citing Withrow v. Larkin, 421 U.S. 35,
47 (1975)). "[T]he constitutional standard for impermissible bias is high." Piggie, 342 F.3d at 666.
The presumption is overcome—and an inmate's right to an impartial decision-maker is breached—
in rare cases, such as when the hearing officer has been "directly or substantially involved in the
factual events underlying the disciplinary charges, or in the investigation thereof." Id. at 667. Mr.
Flagg's disagreement with the outcome of his hearing and the DHO's decision does not implicate
bias. He has not alleged that the DHO was directly or substantially involved in the factual events
or investigation underlying his charge.
Mr. Flagg's argument regarding his "silence" at the hearing being used against him is
unavailing for two reasons. First, he submitted a lengthy written statement expressing his
arguments, which the DHO considered. Dkt. 9-7; dkt. 9-8. Second, an inmate's silence may be
used against him in a prison disciplinary proceeding so long as there is additional inculpatory
evidence before the hearing officer. See Castillo v. Johnson, 592 F. App'x 499, 501 (7th Cir. 2014)
(citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)). As the Court will discuss, the DHO relied
on sufficient evidence—in addition to Mr. Flagg's silence to find him guilty. Mr. Flagg was also
not entitled to a lay advocate, as more thoroughly outlined below, and therefore, the DHO's failure
to replace the lay advocate assigned to Mr. Flagg with someone else does not establish that the
DHO was partial.
Mr. Flagg has presented no evidence to overcome the presumption of impartiality, and
thus, is not entitled to habeas relief on this ground.

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2. Lay Advocate
Mr. Flagg states that Sgt. Adams advised him that he would be written up for battery against
Officer Kolarick, that the conversation became heated, and that Sgt. Adams made a derogatory
comment towards him and did not help him with his request to speak to mental health. Dkt. 2 at 4.
Mr. Flagg filed a grievance against Sgt. Adams prior to his disciplinary hearing, and then Sgt.
Adams was assigned to be Mr. Flagg's lay advocate. Id.; dkt. 9-3. Mr. Flagg argues that he asked
the DHO for a different lay advocate but was denied, and that Sgt. Adams did not help him with
his defense. Dkt. 2 at 4-5.
Mr. Flagg's argument fails because he was not constitutionally entitled to a lay advocate.
A prisoner in a disciplinary proceeding has no right to a lay advocate unless he is illiterate, or the
complexity of the issue makes it unlikely that he will be able to collect and present evidence. See
Miller v. Duckworth, 963 F.2d 1002, 1004 (7th Cir. 1992) (citing Wolff, 418 U.S. at 571). The
record and Mr. Flagg's filings do not indicate that he is illiterate, and the Court does not find this
action to be complex. The conduct report describes the events that occurred and outlined the charge
of battery committed against Officer Kolarick. Though Mr. Flagg argues that he has a diagnosis
of a traumatic brain injury, the Court does not find that this injury impeded Mr. Flagg's ability to
marshal his defense. Mr. Flagg has demonstrated that he can coherently present arguments in his
appeals, in his written statement presented at the hearing, and in his subsequent filings with the
Court in this habeas action.
To the extent that Mr. Flagg contends that he was not provided with an adequate lay
advocate in accordance with IDOC policy, his argument is unsuccessful. Prison policies are
"primarily designed to guide correctional officials in the administration of a prison" and not "to
confer rights on inmates." Sandin v. Conner, 515 U.S. 472, 481-82 (1995). Claims based on prison

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policies are not cognizable and do not form a basis for habeas relief. See Keller v. Donahue, 271
F. App'x 531, 532 (7th Cir. 2008) (rejecting challenges to prison disciplinary proceeding because,
"[i]nstead of addressing any potential constitutional defect, all of [the petitioner's] arguments relate
to alleged departures from procedures outlined in the prison handbook that have no bearing on his
right to due process"); Rivera v. Davis, 50 F. App'x 779, 780 (7th Cir. 2002) ("A prison's
noncompliance with its internal regulations has no constitutional import—and nothing less
warrants habeas corpus review."); see also Estelle v. McGuire, 502 U.S. 62, 68 n.2 (1991)
("[S]tate-law violations provide no basis for federal habeas relief.").
Accordingly, habeas relief on this ground is denied.
3. Sufficiency of Evidence
Mr. Flagg contends that the DHO used his silence at the hearing and his "attitude and
demeanor" against him in violation of due process. Dkt. 16 at 3-4. He argues that there was no
evidence that his actions were not a result of his mental disability. Id. at 5. The Court construes
these arguments as challenges to the sufficiency of the evidence.
"[A] hearing officer's decision need only rest on 'some evidence' logically supporting it and
demonstrating that the result is not arbitrary." Ellison, 820 F.3d at 274. The "some evidence"
standard is much more lenient than the "beyond a reasonable doubt" standard. Moffat v. Broyles,
288 F.3d 978, 981 (7th Cir. 2002). "[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 (emphasis added); see also Eichwedel v. Chandler, 696 F.3d 660, 675 (7th Cir. 2012) ("The
some evidence standard . . . is satisfied if there is any evidence in the record that could support the
conclusion reached by the disciplinary board.") (citation and quotation marks omitted).
The "'some evidence' standard" is "a 'meager threshold.'" Jones v. Cross, 637 F.3d 841, 849

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(7th Cir. 2011) (quoting Scruggs, 485 F.3d at 939). Once the Court finds "some evidence"
supporting the disciplinary conviction, the inquiry ends. Id. This Court may not "reweigh the
evidence underlying the hearing officer's decision" or "look to see if other record evidence supports
a contrary finding." Rhoiney, 723 F. App'x at 348 (citing Webb v. Anderson, 224 F.3d 649, 652
(7th Cir. 2000)).
Code 117 prohibits an offender from committing battery against a staff person, such as
Officer Kolarick. Dkt. 9-15. The respondent argues that battery "occurs when one intentionally
touches another person, directly or indirectly, in a harmful or offensive manner." Dkt. 9 at 10
(collecting cases) (emphasis added). Here, Officer Kolarick's conduct report alone provides "some
evidence" that identifies Mr. Flagg as the individual who squirted a milky white substance at him
through the cuffport of Mr. Flagg's cell. Dkt. 9-1. The substance hit Officer Kolarick on his chest
and head. Id. Officer Kolarick's account is corroborated by video and photographic evidence and
a witness statement. The circumstances outlined in the conduct report fit the definition of battery—
Mr. Flagg indirectly touched the officer with an unknown liquid substance in an offensive manner.
Though Mr. Flagg wanted the DHO to accept his mental health argument to absolve him
of his conduct, due process did not require the DHO to accept any particular argument. Mr. Flagg
presented his mental health argument for consideration, which is all that due process required. His
medical records were provided to and were considered by the DHO. Dkt. 9-7. The DHO's decision
enjoys support from the considerable evidence discussed above. There is no dispute that Mr. Flagg
struck Officer Kolarick with the liquid. There is no dispute that Mr. Flagg has a brain injury.
However, the record does not indicate that Mr. Flagg was incapable of acting with knowledge or
intent.
There was "some evidence" to support his charge, and Mr. Flagg is not entitled to habeas

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relief on this ground.
4. Eighth Amendment Claim
Mr. Flagg contends that he was placed in stricter restrictive housing as a result of his guilty
finding which amplified his trauma and mental anguish, and generally states that the DHO violated
his Eighth Amendment rights. Dkt. 2 at 5-7. But Mr. Flagg's Eighth Amendment claims are not
cognizable in a habeas petition. Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir. 2011)
(recognizing the court's "long-standing view that habeas corpus is not a permissible route for
challenging prison conditions."). In cases where a prisoner "is not challenging the fact of his
confinement but instead the conditions under which he is being held, [the Seventh Circuit] has
held that [he] must use a [42 U.S.C.] § 1983 . . . theory." Glaus v. Anderson, 408 F.3d 382, 386
(7th Cir. 2005); see also Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003) ("For prisoners,
the difference between a civil rights action and a collateral attack is easy to describe. Challenges
to conditions of confinement . . . fall under § 1983. Attacks on the fact or duration of confinement
come under § 2254.").
Accordingly, Mr. Flagg is not entitled to habeas relief on these grounds.
D. Conclusion
"The touchstone of due process is protection of the individual against arbitrary action of
the government." Wolff, 418 U.S. at 558. Mr. Flagg's petition does not identify any arbitrary action
in any aspect of the charge, disciplinary proceeding, or sanctions that entitles him to the relief he
seeks. Accordingly, Mr. Flagg's petition for a writ of habeas corpus is denied, and the action is
dismissed with prejudice. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
Date:

9/7/2021

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Distribution:
JUAN FLAGG
121969
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
Frances Hale Barrow
INDIANA ATTORNEY GENERAL
[e-mail]

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