Peer v. Denham
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/23/15. 16 Motion for Summary Judgment and 26 Request to Stay Decision on Motion for Summary Judgment are denied as moot. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00754-GPG
KEITH E. PEER,
DEBORAH DENHAM, Warden,
ORDER OF DISMISSAL
Applicant, Keith E. Peer, is a prisoner in the custody of the Federal Bureau of
Prisons (BOP) and is incarcerated at the Federal Correctional Institution in Englewood,
Colorado. Mr. Peer has filed pro se an Application for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF No. 1) challenging a disciplinary hearing officer (DHO)
decision. Applicant has paid the $5.00 filing fee.
On May 11, 2015, Magistrate Judge Gordon P. Gallagher entered an order (ECF
No. 7) directing the Respondent to file a preliminary response to the Application
asserting the affirmative defense of exhaustion of administrative remedies if the
government intended to raise the defense. Respondent filed a preliminary response on
June 1, 2015 (ECF No. 12) asserting the exhaustion defense. Mr. Peer filed a reply on
June 18, 2015 (ECF No. 15), along with a Motion for Summary Judgment (ECF No. 16).
On August 5, 2015, Respondent filed a status report with the Court advising that the
DHO had held a rehearing on the challenged disciplinary conviction on July 31, 2015.
(ECF No. 28). Mr. Peer thereafter filed an Addendum to Motion for Summary Judgment
(ECF No. 20), on August 7, 2015. Respondent filed a Supplement to Preliminary
Response (ECF No. 30), on August 14, 2015. Mr. Peer filed a Reply (ECF No. 32), on
September 8, 2015.
The Court must construe liberally Mr. Peer’s filings because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, this action will be dismissed.
I. Factual Background and the Federal Application
On December 13, 2012, Mr. Peer received an Incident Report charging him with
committing an act prohibited by Code 111 (“Introduction or making of any narcotics,
marijuana, drugs, alcohol, intoxicants, or related paraphernalia not prescribed for the
individual by the medical staff.”).1 (ECF No 1-1 at 12). The charge arose out of the
On November 30, 2012, at approximately 8:10 p.m., while conducting a
visual search of I/M Keith PEER # 10899-085, as he left the visiting room,
I observed I/M PEER clutching the upper portion of his socks with both
hands as he removed each sock. I could hear an unknown sound coming
from his socks. I/M PEER was moving very fast as he was undressing
stating that he had to use the bathroom. After hearing the sound coming
from I/M PEER’S socks, I told I/M PEER to give me his socks. Inside I/M
PEER’S socks I located two small clear plastic baggies. One baggie was
located inside each right and left sock[ ]. Each baggie contain[ed] 12
unknown brownish colored capsules. After locating the capsules, I
directed I/M PEER to give me the baggies in his socks. I/M PEER then
asked me if “We could just flush it” referring to the capsules. I told him
“No” then contacted the Operations Lieutenant. The pills were confiscated
and turned over to the duty Operations Lieutenant. I then escorted I/M
The BOP’s Prohibited Acts and Disciplinary Scale are codified at 28 C.F.R. § 541.3 (Table 1).
PEER to the Special Housing Unit. I/M PEER’S person and clothing were
both physically and visually inspected prior to him entering the visiting
room and no contraband was found.
A DHO held a hearing on the Incident Report on February 20, 2013, and found
Applicant guilty as charged. (Id. at 34-36). Mr. Peer was sanctioned with, inter alia, the
forfeiture of 41 days of good time credits. (Id. at 36).
On July 31, 2015, the DHO held a re-hearing and reaffirmed Applicant’s
conviction of the Code 111 violation. (ECF No. 28-1).
Applicant claims in the § 2241 Application that he was denied due process in
connection with the disciplinary conviction. (ECF No. 1 at 3). He maintains that he is
innocent of the charged offense because the confiscated capsules were a dietary
supplement, not a substance prohibited by Code 111. (Id.). For relief, he asks that the
disciplinary conviction be expunged from his prison file.
In the Supplement to Preliminary Response, Respondent argues that Applicant’s
due process challenge to the February 20, 2013 DHO conviction should be dismissed
as moot, or as procedurally defaulted. (ECF No. 30 at 2-3). Respondent further
contend that any challenge to the DHO’s July 31, 2015 decision on re-hearing must be
dismissed for failure to exhaust administrative remedies. (Id.). For his part, Applicant
argues that further exhaustion of administrative remedies would be futile, based on
Respondent’s argument that there is sufficient evidence to support the DHO’s decision
on re-hearing. (ECF No. 32 at 1-2; see also ECF No. 30 at 3-5).
I. The Administrative Exhaustion Requirement
Exhaustion of available administrative remedies is a prerequisite to federal
habeas corpus relief pursuant to 28 U.S.C. § 2241. See Garza v. Davis, 596 F.3d 1198,
1203 (10th Cir. 2010); Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per
curiam); see also United States v. Wilson, 503 U.S. 329, 335 (1992) (“Federal
regulations have afforded prisoners administrative review of the computation of their
credits, and prisoners have been able to seek judicial review of these computations
after exhausting their administrative remedies” (citations omitted).”). The exhaustion
requirement is satisfied through proper use of the available administrative procedures.
See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (discussing exhaustion of administrative
remedies in the context of 42 U.S.C. § 1997e(a)). A “narrow exception to the
exhaustion requirement applies if an applicant can demonstrate that exhaustion is
futile.” Garza, 596 F.3d at 1203. Further, the exhaustion requirement may be excused
if prison officials prevent of hinder a prisoner’s efforts to exhaust administrative
remedies. See Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (addressing Prison
Litigation Reform Act’s exhaustion requirement).
The BOP administrative remedy procedure is available to federal prisoners. See
28 C.F.R. §§ 542.10 - 542.19. The administrative remedy procedure allows “an inmate
to seek formal review of an issue relating to any aspect of his/her own confinement.” 28
C.F.R. § 542.10(a). Generally, a federal prisoner exhausts administrative remedies by
attempting to resolve the matter informally and then completing all three formal steps by
filing an administrative remedy request with institution staff as well as regional and
national appeals. See 28 C.F.R. §§ 542.13 - 542.15.
Exceptions exist to the standard exhaustion procedures. If a determination by a
DHO is at issue, the inmate may skip the initial appeal to the Warden and appeal the
DHO’s decision directly to the Regional Director. See 28 C.F.R. § 542.14 (d)(2).
Appeal from an adverse decision is to the General Counsel (Central Office). See 28
C.F.R. § 542.15(a).
If an inmate fails to comply with the procedural requirements of the administrative
remedy process, a request may be rejected at any stage of the process. 28 C.F.R. §
542.17(a). When a submission is rejected, the inmate is provided with a written notice
as to the reason for rejection, and if the defect is correctable, a reasonable extension of
time to correct the defect and resubmit the appeal. 28 C.F.R. § 542.17(b). If an appeal
is rejected and the inmate is not given an opportunity to correct the defect, the inmate
may appeal the rejection to the next appeal level. 28 C.F.R. § 542.17(c). The
coordinator at the next appeal level may affirm the rejection, direct it to be submitted at
the lower level, or accept it for filing. Id.
II. Mr. Peer’s Compliance with the BOP Administrative Review Procedures
Mr. Peer filed an appeal of the DHO’s February 13, 2013 decision with the North
Central Regional Office on April 1, 2013. (ECF No. 1-1 at 3). The Regional Director
denied the appeal on June 18, 2013. (Id. at 2).
On September 27, 2013, Mr. Peer received documents from the North Central
Regional Office in response to a Freedom of Information Act (FOIA) request he had
submitted in March 2013. (ECF No. 1 at 13-15; No. 1-1 at 6). The documents included
correspondence between FCI-Englewood administrators and the District Attorney’s
office in which the District Attorney stated, in a letter dated December 5, 2012, that
since [the prohibited substance] is a dietary supplement, we decline [to prosecute.”
(ECF No. 1 at 6).
On October 12, 2013, Mr. Peer filed an appeal of the Regional Director’s decision
to the Central Office. (ECF No. 1-1 at 8). The Central Office responded on November
4, 2013, directing Applicant to submit verification as to why his appeal was untimely.
(Id. at 54). On November 30, 2013, Applicant wrote a letter to the Central Office
explaining that his appeal was untimely because he had been waiting to receive
documents in response to his FOIA request. (Id. at 14-16). The Central Office informed
Applicant that his untimely appeal would not be accepted without staff verification. (Id.
at 60). Applicant states that his counselor thereafter refused to provide the requested
staff verification. (ECF No. 1 at 6).
In July 2014, after Mr. Peer filed additional administrative remedy requests,
prison staff learned that the capsules confiscated from Applicant in 2012 were still at the
facility and thereafter sent one of the capsules to the Colorado Bureau of Investigation
(CBI) for testing. (Id. at 7). On August 15, 2014, the CBI issued a lab report stating that
“Controlled substances were not detected.” (Id. at 7, 16). The DHO was informed of the
test results, but no further action was taken on the challenged disciplinary conviction at
the time the § 2241 Application was filed. (Id. at 7). On July 31, 2015, the DHO held a
re-hearing, considered new evidence, and concluded that Applicant was guilty of the
Code 111 violation. (ECF No. 28-1).
The Court agrees with Respondent that the § 2241 Application is moot to the
extent it challenges the legality of Applicant’s February 2013 DHO conviction for
violation of Code 111 because the DHO held a rehearing in July 2015 and considered
new evidence. Accordingly, the Court must decide whether to dismiss the Application
on the merits without requiring Mr. Peer to exhaust administrative remedies as to the
DHO’s July 2015 decision on re-hearing, see United States v. Eccleston, 521 F.3d
1249, 1253 (10th Cir. 2008), or, dismiss this action without prejudice so that Applicant
can fulfill the exhaustion requirement. As discussed below, the Court’s preliminary
review of the merits indicates that dismissal with prejudice is not appropriate at this
A. Legal Standards Applicable to Prison Disciplinary Convictions
Mr. Peer asserts in the Application that his prison disciplinary conviction for
committing an act prohibited by Code 111 violated due process because he is “actually
innocent” of the charged offense. (ECF No. 1 at 2). He states that the confiscated
capsules contained an over-the-counter dietary supplement (Growth Hormone
Release). (Id. at 3). Applicant also contends that the NIK [Narcotics Identification Kit]
test results, which showed that the capsules tested positive for amphetamines, were not
reliable, as demonstrated by the contradictory CBI lab results. (ECF No. 26 at 1).
“It is well settled ‘that an inmate's liberty interest in his earned good time credits
cannot be denied without the minimal safeguards afforded by the Due Process Clause
of the Fourteenth Amendment.’” Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811
(10th Cir. 2007) (applying law to federal prisoner) (quoting Mitchell v. Maynard, 80 F.3d
1433, 1444 (10th Cir.1996) (internal quotation marks and citation omitted)). However,
“[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply.” Wolff v.
McDonnell, 418 U.S. 539, 556 (1974).
Where a prison disciplinary hearing may result in the loss of good time
credits, . . . the inmate must receive: (1) advance written notice of the
disciplinary charges; (2) an opportunity, when consistent with institutional
safety and correctional goals, to call witnesses and present documentary
evidence in his defense; and (3) a written statement by the factfinder of
the evidence relied on and the reasons for the disciplinary action.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418
U.S. at 563-67).
Moreover, to comport with due process, there must be some evidence to support
a disciplinary conviction. Hill, 472 U.S. at 454. “Ascertaining whether this standard is
satisfied does not require examination of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there is any evidence in the record
that could support the conclusion reached by the disciplinary board.” Id. at 455-56. A
disciplinary board’s decision can be upheld by a reviewing court “even if the evidence
supporting the decision is ‘meager.’” Mitchell, 80 F.3d at 1445 (10th Cir. 1996) (quoting
Hill, 472 U.S. at 457).
“[A]n assertion of actual innocence, although operating as a potential pathway for
reaching otherwise defaulted constitutional claims, does not, standing alone, support
the granting of the writ of habeas corpus”. See LaFevers v. Gibson, 238 F.3d 1263,
1265 n. 4 (10th Cir. 2001). Instead, Mr. Peer must demonstrate that the disciplinary
conviction and concomitant revocation of good time credits violated his federal due
process rights. Accordingly, the Court construes liberally Applicant’s assertion of actual
innocence, and his challenge to the lack of corroborating independent test results, as an
attack on the sufficiency of the evidence to support his prison disciplinary conviction.
B. The DHO Reports
The original DHO hearing was held on February 20, 2013. (ECF No. 1-1 at 34).
The DHO determined that Applicant committed an act prohibited by Code 111 based on
the following evidence:
You admitted to the DHO that you did introduce capsules through the
visiting room as documented in the incident report. You claim that the
substance is a dietary supplement so the charge should be 331 not 111.
The capsules in your possession were tested utilizing the NIK test kit
which produced a positive reading for amphetamines. Your claim that the
capsules were GHR [Growth Hormone Release] was not supported by any
evidence you provided. Two tests were performed using two different
capsules with both testing positive for amphetamines. Based on the fact
that capsules you introduced through the visiting room and had in your
possession tested positive for amphetamines Code 111 is supported.
(Id. at 36).
A re-hearing on the disciplinary conviction was held on July 31, 2015. (ECF No.
28-1). The DHO considered the same evidence presented at the February 2013
hearing. (Id. at 1-2). In addition, the DHO reviewed and considered a CBI Lab Report
which stated that the CBI tested one of the capsules in August 2014 and “[c]ontrolled
substances were not detected.” (Id. at 3; see also ECF No. 1-1 at 73). The DHO also
considered a memorandum from Lt. Kizzier, with attached test results, stating that on
August 26, 2014, Lt. Kizzier retrieved one of the capsules from the evidence file and
tested the capsule with the NIK “A.” (Id. at 3). The results of the NIK test were positive
for amphetamines. (Id.). The DHO determined the following on re-hearing:
After careful consideration, the DHO found that the inmate committed the
prohibited act(s) of Code 111, Introduction Or Making of any Narcotics,
Marijuana, Drugs Alcohol, Intoxicants, Or Related Paraphernalia, Not
Prescribed For the Individual By the Medical Staff, based on the greater
weight of the evidence. At the completion of a visit you were searched
and staff discovered you in possession of clear capsules containing a tan
powder which tested positive for amphetamines using the NIK test “A.”
You admitted to bringing the capsules through the visiting room but deny
the charge of Code 111 stating that the capsules are a dietary
supplement. You also called to question the testing of the capsules. You
claim the documents you introduced shows the initial test (NIK test) was
only a presumptive test and the capsules should have been sent to a
laboratory for a confirmation test. You referred to the test conducted by
the CBI which stated controlled substances were not detected. Although
the test did state that controlled substances were not detected in the
capsule tested, the report did not say amphetamines were not found.
Concerning the need for a second test, there is no requirement of a
second test by the Bureau Of Prisons when testing a substance for an
administrative discipline hearing. The NIK test is considered reliable and
is the standard test accepted by the Bureau. On December 4, 2012 two
capsules were tested with the NIK test kit and both tested positive for
amphetamines. On August 15, 2014 one capsule was tested at the CBI
laboratory and the results were “controlled substances were not detected.”
There was no mention of testing for amphetamines. On August 26, 2014
another of the capsules was tested using the NIK test kit “A” and tested
positive for amphetamines. The capsules found in your possession were
not in any type of commercial packaging identifying them and had no
markings on the capsules. The DHO did consider your defense the
capsules were a dietary supplement. This includes the documents
submitted by you as well as the report from the CBI. The fact that a total of
3 capsules were tested by approved means and were positive for
amphetamines places you in violation of Code 111.
(ECF No. 28-1 at 3). The DHO then reaffirmed the disciplinary sanctions imposed as a
result of the February 20, 2013 DHO hearing. (Id.).
C. Preliminary Analysis of Due Process Claim
The Court recognizes that, in the context of a prison disciplinary hearing, prison
officials generally are entitled to rely on institutional test results, such as the NIK field
test, absent any evidence of unreliability or irregularity in conducting the tests. See,
e.g., Terry v. Dep’t of Public Safety & Correctional Services, No. 11-cv-01686, 2012 WL
2564779, at *8 (D. Md. June 29, 2012) (concluding that results of NIK test constituted
“some evidence” to support prison disciplinary conviction for possession of a substance
containing amphetamines even though drug test was later shown to have resulted in a
false positive). Accord Higgs v. Bland, 888 F.2d 443, 449 (6th Cir.1989) (stating that
while “a test which produced frequent incorrect results could fail to constitute some
evidence' under the Hill standard,” in the absence of evidence that “the probability of
false results was more than a mathematical possibility,” a positive urinalysis “constitutes
some evidence' from which [a disciplinary] board could conclude that a tested inmate
was guilty of the offense of drug use.”). The NIK test has been deemed generally
reliable. See, e.g., United States v. Sanchez, 50 C.M.R. 450, 453-55, 1975 WL 15648
(A.F.C.M.R.1975) (allowing a NIK test and quoting literature on its reliability); see also
Terry, 2012 WL 2564779, at *8.
Furthermore, prisoners do not have a generalized right to a retest in the wake of
a disputed test result. See, e.g., Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898
(5th Cir. 2000) (“Henson identified no specific need for the retest (either by showing that
the test is unreliable or that it was improperly administered) or any case law supporting
a general right to retest positive drug results” in the context of a prison disciplinary
proceeding); Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir.1992) (holding that a prison
could deny a prisoner's request for a follow up drug test, as “accommodating the
inmate's asserted right would create a ripple effect' among other prisoners, and impose
a significant administrative burden on prison officials”); Easter v. Saffle, No. 02-6044,
51 F. App'x 286, 289 (10th Cir. 2002) (unpublished) (concluding that a “single urinalysis
amounts to ‘some evidence’ and thus satisfies due process” even if the risk of a false
positive exists); see also Bolanas v. Coughlin, 91-cv-5330 (KC), 1993 WL 762112, at
*21 (S.D.N.Y. Oct. 15, 1993) (concluding that prisoner’s due process rights in prison
disciplinary proceeding were not violated because “[i]t was not improper to rely on only
one test of the white powder. The test used was reliable, and it was not necessary to
send it outside the facility to be tested, as plaintiff requested.”).
However, in this case, following Applicant’s February 2013 disciplinary conviction
in which the DHO relied solely on NIK test results, the CBI performed an independent
drug test on one of the confiscated capsules, at the request of Applicant and prison
officials. The DHO then held a re-hearing and considered the results of the CBI test.
The DHO concluded that the CBI test results were not probative because the CBI report
stated only that “controlled substances were not detected,” but “the report did not say
amphetamines were not found.” (ECF No. 28-1 at 3). It appears that the DHO defined
“controlled substances” to exclude amphetamines, even though both the United States
and the State of Colorado have listed amphetamines as a Schedule II controlled
substance. See 21 C.F.R. § 1308.12(d); COLO.REV.STAT. § 18-18-204 (2)(c)(I).
Because the present record raises a question as to whether the CBI test results directly
undermined the reliability of the NIK test results, the Court is not convinced that
Applicant’s due process challenge to the DHO’s decision on rehearing is without merit.
The Court finds that dismissal of this action without prejudice is warranted so that
the BOP has the first opportunity to consider the Applicant's challenge to the July 2015
DHO decision on rehearing before a judicial determination of the merits. See Woodford
v. Ngo, 548 U.S. 81, at 89 (2006) (discussing the purposes of the administrative
A federal district court can ignore the exhaustion requirement if exhaustion of
administrative remedies would be futile. Garza, 596 F.3d at 1203. However, the futility
exception is narrow. Id. Applicant argues in his Reply to the Supplement to Preliminary
Response that it would be futile to require him to exhaust administrative remedies with
respect to the DHO’s July 2015 decision, based on statements made by the
Respondent in the Supplement to Preliminary Response that Applicant is not "actually
innocent" of the Code 111 violation and that it "is more likely than not" that the DHO's
decision on rehearing was supported by "some evidence. " (ECF No. 32 at 2; ECF No.
30 at 4-5).
The Court is not persuaded that exhaustion of administrative remedies would be
futile because the reliability of the NIK test is undermined by the CBI test. See Brown v.
Wands, 463 F. App'x 806, 808 (10th Cir. May 9, 2012) (unpublished) (concluding that
petitioner failed to demonstrate futility where he "has not pointed to any administrative
rule under which he will categorically be denied relief in the grievance process, and the
reasons given in response to his grievance at the staff level do not prove that his
regional and national appeals will be denied as well").
Because Applicant does not assert any other grounds for excusing the
exhaustion requirement, the § 2241 will be dismissed without prejudice so that Applicant
can pursue administrative relief.
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 1), filed by Applicant Keith E. Peer, on April 10, 2015, is
DENIED as follows: Applicant’s due process challenge to the February 13, 2013 DHO
decision is moot; and, Applicant must exhaust administrative remedies for the July 31,
2015 DHO decision on rehearing before seeking federal habeas corpus relief. It is
FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE. It
FURTHER ORDERED that Applicant’s Motion for Summary Judgment (ECF No.
16) and Request to Stay Decision on Motion for Summary Judgment (ECF No. 26) are
DENIED as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis is denied for the
purpose of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Peer files a notice of appeal he must also pay the
full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United
States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed.
R. App. P. 24.
DATED September 23, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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