United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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.
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.
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
Id. at 51.
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
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