Gallagher v. Williams

Filing 14

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS: The petition for writ of habeas corpus (Doc. #1) is DENIED. The Clerk is directed to enter judgment in favor of the respondent and close this case. It is so ordered. Signed by Judge Jeffrey A. Meyer on 10/30/2018. (Sokoloff-Rubin, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SHAWN RICHARD GALLAGHER,
Petitioner,
v.

No. 3:18-cv-00461 (JAM)

D.K. WILLIAMS,
Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Shawn Richard Gallagher has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241, alleging that his right to constitutional due process was violated
when he was subject to loss of prison good time credits due to a positive drug test result. Because
I conclude that Gallagher received due process, I will deny the petition for writ of habeas corpus.
BACKGROUND
Gallagher is currently incarcerated at the Federal Correctional Institution in Danbury,
Connecticut, where he is serving a 120-month sentence for Possession with Intent to Deliver
Oxycodone. Doc. #10-1 at 1–2. At the time of the alleged disciplinary infraction now at issue in
this petition, Gallagher was living at the Coolidge House Residential Reentry Center (“Coolidge
House”) in Boston, Massachusetts, where he had been transferred from Danbury to serve the
remainder of his sentence. Id. at 2. He was later transferred back to Danbury after the alleged
disciplinary infraction. Doc. #12 at 2.
On June 1, 2017, a urine sample collected from Gallagher tested presumptively positive
for amphetamine. Doc. #10-1 at 1–2. Several days later a toxicology drug test report confirmed
the positive test result. Ibid. Gallagher was charged with use of drugs in violation of Code 112 of
the Federal Bureau of Prisons Inmate Discipline Program. Ibid.
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Mark Smith, an intake and release coordinator at Coolidge House, investigated the
incident. Doc. #10-1 at 16. He read the incident report, which included a statement by the officer
who wrote it, and he interviewed Gallagher. Ibid. During the interview, Gallagher told Smith that
he had been prescribed Claritin D as a child and had continued to take it as an over-the-counter
drug. Ibid. Gallagher said that a counselor at Hope House, a rehabilitation center in Boston, told
him that Claritin D could cause a false positive urine test. Ibid.
Smith referred the charge to the Center Discipline Committee (CDC) for a hearing that
took place on August 30, 2017. Ibid.; id. at 27–28. Gallagher was advised of his rights to be
present and participate in the hearing, as well as his right to the assistance of a staff
representative, which he waived. Ibid. He attended and denied the charge that he had used
amphetamines. He stated that the urine test was a false positive caused by Claritin D. Id. at 2.
After reviewing the incident report, the investigation report, the toxicology report, and other
documents, the CDC chairperson found, based on the greater weight of the evidence, that
Gallagher had commit the act charged. Ibid.
Gallagher appealed, and Anthony Amico, a Bureau of Prisons discipline hearing officer
(DHO), reviewed the CDC decision. Ibid. He requested clarification from Coolidge House about
Gallagher’s claim that the urine test was a false positive. Ibid. Joseph Jarvis, a program
administrator at Coolidge House and the chairperson of the CDC, sent Amico a two-sentence
memo stating that on September 5, 2017, “I made contact with Alere toxicology. I had Mark
Wuest, a toxicologist confirm that Claritin D would not cause a false positive on a UA
toxicology report.” Id. at 29. After reviewing this memo along with paperwork from the CDC
hearing and Gallagher’s disciplinary record, which included two recent disciplinary charges for
using alcohol, Amico found that the CDC hearing was in substantial compliance with the Bureau

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of Prisons due process protections, and that the CDC’s findings were based on the greater weight
of the evidence. Id. at 2–3.
On September 14, 2017, Amico certified the CDC hearing and imposed sanctions by
signing the CDC hearing report. Id. at 14. The evidence listed under the heading “specific
evidence relied on to support findings” included the initial incident report, Smith’s investigation,
the toxicology report, the statement from the toxicologist, and Gallagher’s disciplinary record.
Ibid.
Gallagher appealed the disciplinary finding to the Regional Director of the BOP and then
to the BOP’s Office of General Counsel. Id. at 3. The record reflects that Gallagher submitted
additional documentation to support his claim that Claritin D may cause a positive test for
amphetamine. Id. at 38–43. The appeals were denied. Id. at 3, 36, 47. As a result of the
disciplinary finding, Gallagher lost 41 days of good conduct time that he had earned and 60 days
of non-vested good conduct time. Id. at 3.
On March 19, 2018, Gallagher filed a pro se petition for writ of habeas corpus. Doc. #1.
He claims that his right to due process was violated because he was wrongly disciplined on the
ground of his lawful use of Claritin D and because the DHO gave too much weight to the
findings of the CDC. Doc. #9 at 6–8; Doc. #12 at 2–3. He seeks expungement of his disciplinary
record and restoration of 101 days of good time credit. Id. at 4.
DISCUSSION
A prisoner may challenge the execution of his prison sentence by means of a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Carmona v. U.S. Bureau of Prisons, 243
F.3d 629, 632 (2d Cir. 2001). The standard analysis for a claim of a violation of procedural due
process “proceeds in two steps: We first ask whether there exists a liberty or property interest of

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which a person has been deprived, and if so we ask whether the procedures followed . . . were
constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam).
It is well-settled that prisoners enjoy a liberty interest in earned good time credit. See Sira
v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing Wolff v. McDonnell, 418 U.S. 539, 555–56
(1974)); Walker v. Williams, 2018 WL 264172, at *2 (D. Conn. 2018). Because it is clear that
Gallagher lost earned good time credit as a result of the disciplinary charge against him, I
conclude that he has a liberty interest at stake for purposes of his due process claim.
“The due process protections afforded a prison inmate do not equate to ‘the full panoply
of rights’ due to a defendant in a criminal prosecution.” Sira, 380 F.3d at 69 (quoting Wolff, 418
U.S. at 556). “Nevertheless, an inmate is entitled to advance written notice of the charges against
him; a hearing affording him a reasonable opportunity to call witnesses and present documentary
evidence; a fair and impartial hearing officer; and a written statement of the disposition,
including the evidence relied upon and the reasons for the disciplinary actions taken.” Ibid.
Gallagher does not allege a violation of any of these due process protections.
Gallagher argues instead that the evidence was not sufficient to rebut his defense that the
positive drug test result for amphetamine was because of his lawful use of Claritin D. Judicial
review of the sufficiency of evidence to support a prison disciplinary action is limited to
determining whether there is “some evidence” to support the action. Superintendent v. Hill, 472
U.S. 445, 455 (1985). As the Supreme Court has explained, “whether this standard is satisfied
does not require examination of the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence,” but “[i]nstead, 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. This is an “extremely tolerant” standard that is satisfied if there is “any evidence

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in the record that supports” the disciplinary decision, provided that the evidence is otherwise
reliable evidence. Sira, 380 F.3d at 69; see also Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004).
I find that the “some evidence” standard is satisfied by Gallagher’s positive test result,
coupled with the opinion on further inquiry of the toxicologist that this test result was not
attributable to the use of Claritin D. Even crediting Gallagher’s claim that the use of Claritin D
may cause a positive test result for amphetamine, the “some evidence” standard of review does
not license a court to re-weigh the strength of the evidence that was before BOP disciplinary
authorities. See Jones-Heim v. Reed, 241 F. App’x 359, 360–61 (9th Cir. 2007) (rejecting similar
due process claim based on prisoner’s claim that his prescription medication had caused false
positive drug test result); Martucci v. Hollingsworth, 2016 WL 4134529, at *3 (D.N.J. 2016)
(same); Simmons v. Hobart, 2006 WL 240290, at *4 (W.D. Wis. 2006) (same).
Gallagher further argues that the BOP’s hearing officer gave too much weight to the
conclusions of the CDC, which was comprised of persons at the Coolidge House residential
reentry center who were not BOP employees or allegedly trained in BOP policy. Doc. #9 at 7–8,
Doc. #12 at 3. The Due Process Clause, however, does not categorically prohibit a government
official from relying on private personnel to conduct an investigation and hearing in accordance
with the same procedural protections that the Constitution requires of governmental personnel.
Accordingly, numerous courts have rejected the argument that a prisoner’s due process rights are
violated if the BOP imposes discipline based on review by a BOP disciplinary hearing officer of
the investigation and findings by personnel at a BOP residential reentry center. See Martucci,
2016 WL 4134529, at *3; Manfredi v. United States, 2012 WL 5880343, at *5–7 (D.N.J. 2012)
(collecting cases). Accordingly, I conclude that it was not improper for the BOP DHO to rely on
the investigation of the CDC.

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CONCLUSION
The petition for writ of habeas corpus (Doc. #1) is DENIED. The Clerk is directed to
enter judgment in favor of the respondent and close this case.
It is so ordered.
Dated at New Haven this 30th day of October 2018.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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