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Brian Fernald v. Warden Ronnie Holt

April 25, 2011

BRIAN FERNALD, PETITIONER
v.
WARDEN RONNIE HOLT,
RESPONDENT



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Brian Fernald ("Petitioner" or "Fernald"), an inmate presently confined at the United States Penitentiary Canaan ("USP Canaan") in Waymart, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. (Doc. 1.) He alleges that his right to due process was violated during disciplinary proceedings that resulted in a finding of guilt of use of drugs and the imposition of sanctions, including the loss of good conduct time. In particular, he challenges the failure of the Disciplinary Hearing Officer ("DHO") to review a video tape which he claims would show that the officer who collected his urine specimen failed to comply with the chain of custody requirements.

We directed service of the Petition on Respondent on December 20, 2010, and directed Respondent to file an answer to the Petition within twenty-one (21) days. (Doc. 4.) On January 10, 2011, Respondent filed a Response (Doc. 5) and supporting exhibits*fn1 (Doc. 5-2). Petitioner filed his Reply (Doc. 6) on February 10, 2011. Thus, the Petition is fully briefed and ripe for review. For the reasons set forth herein, the Petition will be denied.

I. FACTUAL BACKGROUND

Fernald currently is serving a 170 month sentence for Bank Robbery that was imposed by the United States District Court for the Southern District of Florida on November 1, 2002. (Doc. 5-1 at 3, Romano Decl., ¶ 2; Doc. 5-1 at 5, Public Information Inmate Data.*fn2 ) As of the date of filing of the Response, his projected release date was December 1, 2015, via good conduct time release. (Id.)

On December 1, 2009, upon Fernald's return from an outside hospital for treatment of a narcotics overdose, Officer Dominick had Fernald provide a urine specimen. (Doc. 5-1 at 8, Incident Report #1953357, ¶ 11.) The Incident Report indicates that Fernald had been rushed to an outside hospital and was administered "Narcan" to counteract the effects of his overdose on heroin. (Id. at 9 ¶ 25.) On December 9, 2009, the Special Investigative Services Office ("SIS") received the urine test results from National Toxicology Laboratories, which indicated that Fernald had tested positive for the drug Opiates. (Id. at 8 ¶ 11.) Information obtained from the Health Services Department indicated that Fernald was not prescribed any medication that would have resulted in a positive testing for the drug Opiates. (Id.)

On December 9, 2009, Fernald was issued Incident Report No. 1953357 charging him with the prohibited act of Use of Narcotics or Related Paraphernalia not Prescribed for the Individual by Medical Staff, in violation of Code 112. (Id. ¶¶ 9-10, 14-15.) On December 10, 2009, Fernald was provided a Notice of Discipline Hearing Before the DHO and Inmate Rights at Discipline Hearing Form. (Id. at 10-11.)

At the outset of his hearing before the DHO on December 17, 2009, the DHO advised Fernald of his rights, and Fernald indicated that he understood them, including his waiver of staff representation and waiver of witness testimony. (Id. at 12, DHO Report, § III. B.) The DHO Report further reflects the following:

During the hearing, Fernald was given the opportunity to provide a statement, which he chose to do. (Id.) Specifically, Fernald stated as follows: "The form wasn't present at the time of the urinalysis. I was never offered to sign it. The staff member never signed it in my presence. The video repudiates the charges." (Id.) Further questioning of Fernald by the DHO elicited that the urine specimen was requested in the shower area of the upper tier in the Special Housing Unit ("SHU"), and Fernald specifically stated as follows: "The lieutenant handed me the cup. I walked in the shower. I took a leak in the cup. Officer Dominick retrieved the cup and they left." (Id.) The questioning also elicited an acknowledgment by Fernald that he had gone to an outside hospital on November 30, 2009, the day before the incident, because he was "unresponsive" and that he had returned to USP Canaan the morning of December 1, 2009. (Id. at 12-13 § III. B.) When questioned why he was "unresponsive" and as to the hospital's diagnosis, Fernald replied, "They (hospital staff) said it was a possible overdose." (Id. at 13 § III. B.) Fernald denied ingesting or being under the influence of narcotics. (Id.)

The DHO advised Fernald that video evidence was excluded as it was not considered evidentiary in the proceedings. (Id.) However, the DHO indicated that he reviewed a written statement from Fernald to the Unit Discipline Committee ("UDC") in which he contests urine collection procedures. (Id.) The DHO explained that, although Fernald affirmed with his signature of the Notice of Discipline Hearing Before the DHO that he neither elected witness testimony nor staff representation (see Doc. 5-1 at 10), in his written statement, Fernald requested as witnesses J. Dominick, Correctional Officer, and D. Mrad, Lieutenant (see id. at 21). (Id. at 13 § III. C. 3.) The DHO concluded that the testimony that would be obtained from D. Mrad and J. Dominick would be "inconsequential and non-exculpatory" because Mrad's statement was adequately provided in his memorandum that already was part of the record (see id. at 20), and Dominick had affirmed with his signature on the chain of custody form his compliance with the chain of custody requirements in the handling of Fernald's urine sample (see id. at 16). (Id.) Mrad's Memorandum, which is attached to the DHO Report, states as follows:

On December 1, 2009, inmate Fernald, Brian, #71876-004, was housed in the Special Housing Unit following a return from the outside hospital for a [sic] treatment for a narcotics over dose. When informed he would need to provide a urine sample[,] Fernald stated he was still 'High' and he would come 'Hot'. Based on his claims of being under the influence and his outward actions indicating he was under the influence of narcotics, he was not able to sign for the urine sample.

(Id. at 20.)

The DHO found based upon the greater weight of the evidence that Fernald committed the prohibited act of use of a narcotic or related paraphernalia. (Id. at 14 § IV.) The DHO provided an explanation of the specific evidence he relied upon, which included the Description of the Incident provided by the Reporting Staff Member in the Incident Report (see Doc. 5-1 at 8 ¶ 11); the National Toxicology Laboratories and BOP Chain of Custody for Drug Analysis form, reflecting a date of collection on December 1, 2009 (see id. at 16); a National Toxicology Laboratories Report dated December 7, 2009 indicating a confirmed positive reading for Opiates (see id. at 17); and Fernald's own statement, as reflected in Lieutenant Mrad's Memorandum, upon return from the outside hospital for treatment of a drug overdose that "he was still 'High' and he would come 'Hot'", and also that, due to being under the influence of narcotics, Fernald was unable to sign the Chain of ...


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