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Drogosz v. Superintendent Indiana State Prison

United States District Court, N.D. Indiana

January 29, 2015

SUPERINTENDENT Indiana State Prison, Respondent.


WILLIAM C. LEE, District Judge.

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.


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 XX-XX-XXXX 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 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 to this case was recorded[1] without his knowledge or consent; 2) the recording of the conversation 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 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 ...

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