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King v. Ebbert

United States District Court, M.D. Pennsylvania

August 14, 2019

GEROME K. KING, Petitioner
v.
DAVID J. EBBERT Respondent

          MEMORANDUM

          MALACHY E. MANNION, United States District Judge

         Gerome K. King, an inmate confined in the Coleman United States Penitentiary, Coleman, Florida[1], filed the above captioned petition for a writ of habeas corpus, pursuant to 28 U.S.C. §2241. (Doc. 1, petition). He challenges a disciplinary action against him, which occurred while he was incarcerated at the Hazelton United States Penitentiary, Bruceton Mills, West Virginia (USP-Hazelton). Id. Specifically, he claims that “the alleged narcotics were never properly tested or identified” and “there was no photos, test results or an outside agency saying that they tested it and the staff member that identified the alleged narcotics was never made known.” Id. For relief, he requests the Court “expunge [his] incident report for a 113 and give [him] [his] 100 days of good conduct time that [he] earned.” Id. The petition is ripe for disposition and, for the reasons that follow, will be denied.

         I. Background

         On February 12, 2017 at approximately 2:10 p.m., Incident Report No. 2950455, charging King with Possession of any Narcotics, Marijuana, Drugs, Alcohol, Intoxicants or Related Paraphernalia not Prescribed for the Individual by the Medical Staff; Destroying and/or Disposing of any Item During a Search or Attempt to Search; and Attempting to Assault any Person, in violations of Codes 113, 115, 224A. (Doc. 9-1 at 7, Incident Report). The incident report reads as follows:

On February 8, 2017, at approximately 7:29 am I was conducting a visual search on Inmate King, Gerome #22212-045 in the non-contact visitation cell. I told inmate King to open his mouth wide and roll his upper and lower lip in order to visually inspect the inmate's mouth. At this time inmate King had placed his left hand into his mouth, inmate King removed his left hand and at this time I saw a white piece of paper in the inmate's upper right lip. I gave inmate King a direct order to submit to hand restraints, he then refused and quickly removed his hand back into his mouth. At this time I placed inmate King onto the floor using on that amount of force necessary at that time. I noticed a piece of white paper exit his mouth. Inmate King continued to be combative on the floor by swinging closed fists. Once additional staff was able to respond, inmate King was then placed in hand restraints. Once inmate King was escorted from non-contact visitation to the lieutenant's office holding cell by responding staff I picked up the piece of paper that had exited inmate King's mouth and brought it to the lieutenant's office. Once in the lieutenant's officer an unknown paper substance recovered from I/M King and then was later identified by pharmacy staff as seven individual strips of suboxone.

Id. On February 13, 2017, Petitioner appeared before the Unit Discipline Committee (“UDC”). (See Doc. 9-1 at 7, Committee Action). Because the sanctions were greater than allowed at the UDC level, the UDC referred the charge to the Discipline Hearing Officer (“DHO”), recommending “27 days loss of GCT/30 days D/S / 60 days loss phone and commissary.” Id. During the UDC hearing, staff member, F. Vankirk informed King of his rights at the DHO hearing and provided him with a copy of the “Inmate Rights at Discipline Hearing” form. (Id. at 10, Inmate Rights at Discipline Hearing).

         Also on February 13, 2017, King was provided with a “Notice of Discipline Hearing before the (DHO)” form. (Id. at 9). King requested staff representative, Ms. McArdle. Id. He did not request any witnesses. Id.

         On March 8, 2017, King appeared for a hearing before DHO, K. Craddock. (Doc. 9-1 at 12-14). Ms. McArdle appeared on behalf of Jones. She made the following statement: “He asked me to watch the camera in non-contact visitation. There is no camera in non-contact visitation room.” Id. The DHO then read aloud Section 11 of the incident report and asked Petitioner to provide his statement. Id. King replied “Not Guilty. I never attempted to dispose of any evidence. I was never given a direct order to give what was in my mouth to anyone. I want the suboxone tested.” Id. He did not provide any evidence for the DHO to consider on his behalf. Id.

         In addition to the Incident Report and Investigation, the DHO also considered memoranda from six officers, dated February 8, 2017 and a clinical encounter of the same date, for inmate King. Id. The specific evidence relied on to support the findings was as follows:

Your due process rights were reviewed with you by the DHO at the time of the hearing. You stated you understood your rights, had no documentary evidence to present, did not request any witnesses, and did not request a staff representative to assist you during the hearing. You indicated to the DHO you were ready to proceed.
The DHO finds you to have committed the prohibited acts of Possession of Drugs, Code 113, (Attempt) Destroying an Item During a Search, Code 115A, and (Attempt) Assaulting any Person (Minor), Code 224A, while at the Federal Correctional Complex, West Virginia.
The DHO bases this decision on the facts presented in the body of the written report on February 8, 2017, at approximately 7:29 A.M., in the non-contact visitation cell; Officer Ware reported that he was conducting a visual search on your person in the non-contact visitation cell and told you to open your mouth wide and roll your upper and lower lip in order to visually inspect your mouth. It was reported that at this time you had placed your left hand into your mouth, obstructing your visual search of your mouth. It was reported that Officer Ware then told you to remove your left hand out of your mouth and your removed your left hand and at this time Officer Ware saw a white piece of paper in your upper lip. It was reported that Officer Ware then gave you a direct order to submit to hand restraints, you refused and quickly moved your hand back into your mouth. It was reported that at this time you were placed on the floor using only that amount of force necessary at that time and Officer Ware noticed a piece of white paper exit your mouth. It was reported that you continued to be combative on the floor by swinging closed fists. It was reported that once additional staff was able to respond you were then placed in hand restraints and escorted to the holding cell in the Lieutenant's Office. It was reported that Officer Ware picked up the piece of paper that had exited your mouth and brought it to the Lieutenant's Office and was later identified by pharmacy staff as seven individual strips of suboxone.
You denied the charge before the DHO. You stated “Not Guilty. I never attempted to dispose of any evidence. I was never given a direct order to give what was in my mouth to anyone. I want the Suboxone tested.” Although you deny the charge, Officer Ware was clear in his written report where he had discovered the white piece of paper in your upper lip that was later identified by a pharmacy staff member as seven individual strips of Suboxone.
Based on the supporting documentation, and the written report, the DHO finds you to have committed the prohibited acts of Possession of Drugs, Code 113, (Attempt), Destroying an Item During a Search, Code 115A, and (Attempt) Assaulting any Person (Minor), Code 224A, and sanctioned you accordingly.

Id. The DHO sanctioned King on the Code 113 violation to forty (40) days loss of Good Conduct Time; 100 days forfeiture of non-vested Good Conduct Time; and one year loss of commissary. Id. On the Code 115A charge, the DHO sanctioned King to forty (40) days loss of Good Conduct Time and thirty (30) days disciplinary segregation. For the 224A Code violation, the DHO sanctioned King to twenty-seven (27) days loss of Good Conduct Time and one year loss of visitation. Id. The DHO documented his reasons for the sanctions given as follows:

Possession and/or use of Narcotics and the Use/Possession of Intoxicants in a correctional setting is a very serious violation in that these acts have historically been a factor in producing inmate behavior which often leads to disruptive and violent behavior.
The action/behavior on the part of any inmate destroying or disposing of any item during a search poses a serious threat in that it could lead to injury to the inmate as well as staff. This act also jeopardizes the secure and orderly running of the institution and could escalate into a confrontation between inmates and/or staff.
Assaulting another person seriously jeopardizes the safety of that person and disrupts the orderly running of the institution. This act also creates a dangerous environment for responding staff and could ultimately create a more serious incident.
The DHO disallowed this inmate's Good Conduct Time and forfeited Non Vested Good Conduct Time as required by his sentencing guidelines (PLRA). The DHO imposed disciplinary segregation, loss of visitation, and loss of commissary as punishment for committing the prohibited act.

Id. King was advised of his appeal rights at the conclusion of the hearing. Id.

         King appealed the DHO's decision to the BOP's Mid-Atlantic Regional Director. (Doc. 9-1 at 15, Regional Administrative Remedy Appeal No. 899351-R1). The Regional Director reviewed the DHO report and found the following:

The DHO found you committed the prohibits acts based on the greater weight of the evidence, which included the reporting officer's depiction of the incident in Section 11 of the incident report. The DHO accurately and adequately explained to you in Section V of the amended DHO report the specific evidence relied on to find you committed the prohibited acts.
A review of the record indicates you requested your staff representative to review video surveillance of the non-contact visiting room. Staff became aware of the incident on February 8, 2017, and prepared the incident report that same day. You were issued a copy of the incident report on February 12, 2017. You do not provide, nor do we find, any evidence of this brief procedural delay had any impact on your ability to present a defense, or due process rights were violated in any way.
The required disciplinary procedures were substantially followed, the evidence supports the DHO's finding, and the sanctions ...

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