United States District Court, M.D. Pennsylvania
GEROME K. KING, Petitioner
DAVID J. EBBERT Respondent
MALACHY E. MANNION, United States District Judge
K. King, an inmate confined in the Coleman United States
Penitentiary, Coleman, Florida, 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.
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
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.
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.
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
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
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.
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 ...