Jason C. Burkett v. Mark R. Sevier

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 17, 2020 *
Decided September 2, 2020
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-1389
JASON C. BURKETT,
Petitioner-Appellant,
v.
MARK R. SEVIER,
Respondent-Appellee.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:19-cv-01081-JMS-DLP
Jane Magnus-Stinson,
Chief Judge.
O R D E R
A disciplinary hearing officer found Jason Burkett guilty of violating a prison
rule and sanctioned him with the loss of 30 days of good-time credit. Burkett petitioned
under 28 U.S.C. § 2254 for a writ of habeas corpus, alleging that the sanction violated his
due-process rights because there was no evidence that he broke the rule. The district
* We agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-1389 Page 2
court denied the petition, concluding that some evidence supported the hearing
officer’s decision. We agree and affirm the judgment.
Every morning at Indiana’s New Castle Correctional Facility where Burkett is
imprisoned, correctional officers conduct a standing count of inmates. In June 2018 the
prison circulated a memorandum explaining the procedure: Inmates must stand at the
foot of their bunks to be counted, and after staff count everyone in a housing “pod,” the
inmates in that pod may sit or lie on their bunks but must remain on their bunks until
the count of the whole facility is complete. After a pod’s count is complete or “clear,”
inmates “may use the restroom one at a time per range”—meaning “one offender from
upstairs and one offender from downstairs may get up and use the restroom.” Once the
officers finish counting all pods, they call the facility’s clear count (“Signal 1000”) to
alert inmates that they may move freely again. The memo warned that inmates who
violate the procedures would be disciplined for violating Indiana Department of
Correction offense B-251: “Interfering with Counts.” That provision prohibits “[f]ailing
to stand count, being late for count, or interfering with the taking of the count.” Burkett
read the memo when it was circulated.
During a standing count one month later, Burkett stood at the foot of his bunk
while two officers counted the inmates in his pod. The officers informed Burkett and
other inmates that they could sit on their bunks and left the pod; according to Burkett,
this meant that his pod’s count was clear. So he went to the restroom (which was part of
his immediate living area on the upstairs range of his pod) where three other inmates
had already congregated. He brushed his teeth and returned to his bunk. A short time
later, the officers announced the Signal 1000. Then a correctional officer filed a conduct
report against Burkett, charging him with violating Department code B-251 by using the
bathroom in his pod “before we got the … facility cleared.”
A screening officer advised Burkett of the charge and provided him with copies
of the conduct report and a notice of a disciplinary hearing. Burkett pleaded not guilty.
In his defense he submitted witness statements from three other inmates in his pod,
who each attested that the pod count (but not the facility count) had cleared before
Burkett went to use the restroom. Burkett also requested a video recording of the
incident, which the prison provided; it showed he walked to the restroom after the
count began and brushed his teeth while three other inmates were present.

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No. 20-1389 Page 3
At his disciplinary hearing, Burkett testified that he used the restroom after the
morning count “every day at the same time.” After considering the conduct report, the
statements from Burkett’s witnesses, the video evidence, and the facility memo
describing the standing-count procedure, the hearing officer concluded that Burkett had
violated Department code B-251. The hearing officer sanctioned Burkett with 30 days of
lost commissary and telephone privileges and a 30-day deprivation of good-time credit.
After exhausting the prison’s administrative remedies, Burkett filed a petition
under 28 U.S.C. § 2254 challenging the sufficiency of the evidence to find him guilty of
violating Department code B-251. The district court denied the petition, concluding that
because the evidence cut both ways, some evidence necessarily supported the
disciplinary decision. The judge pointed to the officer’s unambiguous statement in the
conduct report that Burkett was in the bathroom with other inmates “before we got
the … facility cleared.” The judge also cited the facility memo informing inmates that
once the pod count clears, only one inmate may use the restroom at a time and that all
inmates must remain on their bunks until the Signal 1000 is called.
On appeal Burkett again argues that there is no evidence in the record that his
conduct violated Department code B-251. He admits to using the restroom before the
officers announced the Signal 1000 but urges that because neither the hearing officer nor
the district court found that his restroom trip actually interfered with the officers’
ability to conduct the count, he cannot be guilty of that offense.
Prisoners in Indiana may not be deprived of good-time credits without due
process. Ellison v. Zatecky, 820 F.3d 271, 274 (7th Cir. 2016). To satisfy due process, a
hearing officer’s decision need only rest on “some evidence” logically supporting it.
Superintendent v. Hill, 472 U.S. 445, 454 (1985); Ellison, 820 F.3d at 274. The “some
evidence” standard requires only a modicum of evidence demonstrating that a decision
to revoke good-time credits is not arbitrary. Hill, 472 U.S. at 455.
Even crediting Burkett’s account—the officers cleared the count in his pod; he
then went to brush his teeth; and shortly after he returned to his bunk, the guards called
the Signal 1000—some evidence supports the hearing officer’s decision. The facility
memo states that once a pod’s count clears, only one inmate at a time from each range
in a pod may use the bathroom before the Signal 1000. It further warns that diverging
from the count procedures is a violation of Department code B-251. At the time Burkett
used the restroom in the living space of his range, three other inmates were already

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No. 20-1389 Page 4
there. That alone constitutes some evidence that Burkett was guilty of the conduct
charged. See Donelson v. Pfister, 811 F.3d 911, 916 (7th Cir. 2016) (explaining that any
evidence of petitioner’s guilt satisfies the some-evidence standard). And despite
Burkett’s insistence to the contrary, it makes no difference whether his actions actually
interfered with—i.e., caused a mistake in—the count. The facility memo defines
interference as deviating from the procedures imposed to ensure an accurate count.
Burkett asserts, however, that failing to comply with the procedures set forth in
the memo is not the same as violating Department code B-251 because the prison cannot
promulgate a policy that conflicts with or supersedes the policies of the Department.
See IND. C ODE § 11-8-2-5(8). But the facility memo does neither; rather, it clarifies the
prison’s count procedures and gives notice of what will be considered a violation of the
Department rule against interfering with the taking of counts. Burkett believes that
“interference” should mean something other than what the prison’s policy says, but
that does not place the policy in conflict with the code. And Burkett points to no
authority suggesting that a prison cannot adopt a policy informing inmates how it will
enforce the Department’s disciplinary rules. See, e.g., Scruggs v. Jordan, 485 F.3d 934, 940
(7th Cir. 2007) (finding no due-process violation when prison officials decided a
Department rule against violence excluded the self-defense exception because “prisons
must have broad discretion to implement rules assuring the safety of inmates and
staff”).
AFFIRMED

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