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Garza v. English

United States District Court, D. Kansas

December 13, 2018

LEONEL ALBERTO GARZA, Petitioner,
v.
N.C. ENGLISH, Warden, USP-Leavenworth, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner, a prisoner in federal custody at USP-Leavenworth (“USPL”), proceeds pro se. Petitioner challenges prison disciplinary proceedings at USPL that resulted in the loss of good conduct time (“GCT”). The Court finds that Petitioner does not allege facts establishing a federal constitutional violation and denies relief.

         I. Background

         Petitioner is incarcerated with the Federal Bureau of Prisons (“BOP”) at USPL. Petitioner is currently serving a sentence imposed in the United States District Court for the Southern District of Texas, for possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), as well as 18 U.S.C. § 2. (Doc. 6-1, at 17.) Petitioner has a projected release date of December 30, 2023, via good conduct time release. Id. at 16. Petitioner's disciplinary proceedings at USPL for violating Code 110, refusing to provide a urine sample, resulted in sanctions which included Petitioner's loss of 41 days of GCT. Petitioner alleges in his Petition that the disciplinary proceedings violated his due process rights and failed to comply with Program Statement 6060.08, Urine Surveillance and Narcotic Identification (“PS 6060.08”). Petitioner asks the Court to vacate the order of the Discipline Hearing Officer (“DHO”), expunge his incident report, and restore all of his GCT.

         II. Facts

         On November 13, 2017, Petitioner was called to the Special Investigations (“SIS”) department. Petitioner arrived at the SIS office at 5:00 p.m., and was notified that he was to produce a sample for a random Urinalysis Assessment (“UA”). Petitioner was provided with an eight-ounce cup of water, and a two-hour time frame to provide a urine sample, pursuant to PS 6060.08.

         USPL utilizes urine sample cups and testing kits entitled Pharmatech QuickScreen Onestep OnSite Test Cup. (Declaration of J. Herbig, Special Investigative Support Technician, Doc. 6-2, at 3.) These cups have a specific fill line, which goes to the equivalent of two (2) ounces, and a temperature gauge. Id. at 3, 9. In order for the test kit to be done accurately and in accordance with manufacture guidelines, the urine sample must be to the minimum line indicated on the outside of the cup (two ounces), with the temperature reading between 90-100 degrees Fahrenheit. Id. at 3, 16. If these requirements are not met, it may be necessary to discard a partial sample. Id. at 4.

         At the conclusion of the two-hour time frame-7:00 p.m.-Petitioner had yet to provide a sample as required and stated several times “I can't go.” (Declaration of R. Bryant, DHO, Doc. 6-1, at 34.) SIS staff contacted the medical department to ensure that there were no medical conditions that existed that would preclude the inmate from providing the sample within the two-hour time requirement, and they advised that no medical conditions existed. Id. SIS staff notified the Operations Lieutenant and wrote Incident Report No. 3055886 (“IR”) for refusing to provide a urine sample in violation of Code 110. Id. The IR was delivered to Petitioner at 7:39 p.m. on that same date. Id. The Lieutenant investigated the IR, noting that Petitioner “did not have a statement to make” and concluded that Code 110 was “appropriate and warranted.” Id. at 53. The IR was forwarded to the Unit Discipline Committee (“UDC”) for further disposition and Petitioner was placed in the SHU. Id. Petitioner had an opportunity to appear before the UDC on November 14, 2017. Id. at 34. Petitioner appeared and stated, “I take a lot of meds and I was dehydrated and could not pee.” Id. The UDC referred the matter to a DHO. Id.

         On November 14, 2017, Petitioner was given a Notice of Discipline Hearing before the DHO and a copy of the Inmate Rights at Discipline Hearing. Id. at 55, 57. Included among these rights was the opportunity to have a staff representative assist with the Discipline Hearing, the right to present documentary evidence on Petitioner's behalf, and the right to present a statement to the DHO or remain silent. Id. Petitioner signed the Notice of Discipline Hearing and the Inmate Rights at Discipline Hearing Form, noting that he did not wish to call any witnesses, but that he wished to have a staff representative to assist him during the disciplinary process. Petitioner requested the assistance of a Warden's Appointed staff representative. Id. at 55.

         A hearing was held before the DHO on December 13, thirty days after Petitioner received his IR from staff. The DHO was a certified DHO, an impartial hearing officer that was not personally involved with the incident, the UDC hearing, or any other part of the initial disciplinary process. Id. at 14. The DHO reviewed Petitioner's due process rights with him at the hearing, and noted that he had requested a staff representative, but waived his staff representative request prior to the hearing. Id. at 9, 59-60. Petitioner indicated he understood his due process rights and was prepared to proceed with his disciplinary hearing. Id. at 9, 60.

         Petitioner appeared at the disciplinary hearing and presented a verbal statement to the DHO. Petitioner denied the charge and stated “[w]hen I take my meds it causes me to urinate. I only filled the cup half way and he threw it out. He said is wasn't enough.” Id. at 59. Although Petitioner did not request any witnesses, he asked the DHO to contact the investigative lieutenant to verify that he takes medications. Id. at 60. The DHO contacted the investigative lieutenant who stated “[h]e said he takes 22 pills” and “[h]e was upset because he couldn't provide.” Id. Petitioner did not present any documentary evidence. Id.

         In making her decision, the DHO considered Petitioner's verbal statements during the UDC hearing, and at the DHO hearing. Id. The DHO considered Petitioner's lack of a formal statement to the investigating lieutenant, and considered that he stated to the lieutenant that he takes multiple medications and was upset because he couldn't provide. Id. The DHO considered the IR, which indicated Petitioner was brought to the SIS department to provide a urine sample, and failed to provide one within a reasonable period of time (two hours). The DHO also considered Petitioner's statement and/or argument that he provided half of the cup of the sample which was thrown out, which she found was contradicted in Section 11 of the IR. The DHO considered the chain of custody form utilized by the SIS department to indicate Petitioner was notified at 5:00 p.m. about the random UA. Id. at 49. The DHO also considered the November 13, 2017 email sent at 7:15 p.m. from the Health Services Department which indicated there was no medical reason for why Petitioner could not provide a urine sample within the allotted time. Id. at 60. The email, provided by an NR-Paramedic, provides that:

Inmate GARZA, LEONEL 84364-379 does not have any medical diagnosis that would exclude him from supplying a UA in the normal time allotted. He is seen regularly in the clinic for chronic care conditions and is compliant with his medications. He was last evaluated on 10/05/2017, and he had no complaints of dysuria (difficult or painful urination) at that time.

Id. at 51.

         The DHO found that Petitioner committed the Code 110 violation based on the greater weight of the evidence. Id. In making her determination, the DHO placed greater weight on the IR written by the SIS officer, the Chain of Custody form, the email from the Health Services Department, Petitioner's statements, and his lack of a defense. Id. at 60. The DHO also considered that “during the Lieutenant's investigation [Petitioner] elected not to make a statement.” Id. The DHO believed that if Petitioner had not committed the prohibited act Petitioner “would have made a statement and presented a defense against the charge throughout the entire discipline process.” Id.

         The DHO sanctioned Petitioner to disallowance of forty-one (41) days of GCT, ninety (90) days of loss of email privileges, and a ninety-nine ($99.00) dollar monetary fine. Id. The disciplinary sanctions imposed were consistent with those allowed by policy, and were imposed in an effort to deter this type of misconduct in the future. Id. at 13. Petitioner was advised of his ability to appeal through the administrative remedy process within twenty (20) days of the receipt of the report. Id. at 61. A written report ...


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