Pomerleau v. Ormond
MEMORANDUM OPINION & ORDER: (1) Pomerleau's petition for a writ of habeas corpus (Doc. # 1 ) is DENIED. (2) The Court will enter a judgment contemporaneously with this order. (3) This matter is DISMISSED and STRICKEN from the docket. Signed by Judge David L. Bunning on 9/22/17.(SYD)cc: mailed to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 17-61-DLB
RYAN R. POMERLEAU
J. RAY ORMOND, WARDEN
** ** ** ** ** ** ** **
Federal inmate, Ryan Pomerleau, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 to challenge the imposition of prison disciplinary
sanctions. (Doc. # 1). This matter is before the Court to conduct an initial screening of
Pomerleau’s petition. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419
F. App’x 544, 545 (6th Cir. 2011).
Factual and Procedural History
On the evening of February 25, 2016, Pomerleau and his cellmate Wilson were
found unresponsive on the floor of their cell. Pomerleau was having tremors or seizures
and was unresponsive to stimulus. Wilson was similarly unresponsive and was covered
in his own vomit. Once Pomerleau’s tremors ceased, he remained disoriented, and then
became hostile and physically combative with staff once they tried to restrain him. (Doc.
# 1-1 at 12-13).
As Pomerleau and Wilson were being escorted to the prison’s medical center,
Wilson stated to an officer that both he and Pomerleau had taken K2 Spice, a synthetic
cannabinoid. Medical staff then administered Narcan (Naloxone) to both inmates, which
had the effect for both inmates of promptly reversing the effects of the narcotics by
restoring breathing to a more normal rate and increasing alertness. This change in
condition is considered diagnostic of an opioid overdose.1 In addition, Pomerleau and
Wilson both displayed various withdrawal symptoms such as shivering, increased heart
rate, and vomiting. (Doc. # 1-1 at 2-3).
The inmates were then transported to an outside hospital, where immediate
treatment for substance abuse was provided and laboratory tests performed. Because
of the seriousness of the offense, the prison’s Special Investigative Services officer
conducted a thorough investigation.
During this investigation, Wilson told the SIS
investigator that Pomerleau had told him that he had something for both of them to smoke,
and then they smoked it in his cell. (Doc. # 1-1 at 4). On April 4, 2016, an Incident Report
was issued charging Pomerleau with Use of Any Narcotic Not Prescribed by Medical
Staff, a Code 112 offense, and Assaulting Any Person (Attempted), a Code 224A offense.
(Doc. # 1-1 at 12-14).
A hearing was held on April 13, 2016 before a Disciplinary Hearing Officer (“DHO”).
Pomerleau had requested and received assistance from a staff representative at the
hearing, but he did not present any documentary evidence. Pomerleau called Wilson as
K2 and Spice, initially brand names for specific designer synthetic cannabinoids, are now used
generically to refer to any synthetic cannabinoid. These drugs are often found laced with various
other chemical compounds or narcotics, including synthetic opioids.
a witness, but he testified only that he passed out and did not remember anything. For
his part, Pomerleau would neither admit nor deny the charge, stating only that he didn’t
In assessing the validity of the charges, the DHO considered written reports made
by nine separate officers and medical staff, the SIS investigator’s report, medical records
and lab reports from the outside medical facility, and a clinical pharmacology report. In
finding Pomerleau guilty of using unauthorized narcotics, the DHO noted Wilson’s
admission that both of them had smoked K2 Spice; the officers’ observations of
Pomerleau’s mental and physical condition upon discovery; and the prompt remission of
symptoms upon the administration of Narcan. He further noted that the toxicology reports
indicated that foreign synthetic substances in excess of 200 mcg/ml supported the
conclusion that Pomerleau had ingested K2 Spice, particularly considering that a known
(and intentional) effect of Narcan is to considerably reduce the detectable levels of such
compounds within 30 to 80 minutes of administration. The DHO found Pomerleau guilty
of the offense, and imposed various sanctions including the forfeiture or disallowance of
95 days good conduct time. The DHO dismissed the assault charge, concluding that
Pomerleau’s diminished mental capacity at the time rendered him not responsible for his
actions when he was combative with officers. (Doc # 1-1 at 1-6; 28).
In his petition, Pomerleau contends that the DHO improperly accepted Wilson’s
confession that they both smoked the K2 Spice over laboratory test results, which he
contends showed that he did not use narcotics. (Doc. # 1 at 6-7).
When a prison disciplinary board takes action that results in the loss of good time
credits in which the prisoner has a vested liberty interest, the Due Process Clause
requires prison officials to observe certain protections for the prisoner. Specifically, the
prisoner is entitled to advance notice of the charges, the opportunity to present evidence
in his or her defense, whether through live testimony or documents, and a written decision
explaining the grounds used to determine guilt or innocence of the offense. Wolff v.
McDonnell, 418 U.S. 539, 563-66 (1974). Further, the findings used as a basis to revoke
good time credits must be supported by some evidence in the record. Superintendent v.
Hill, 472 U.S. 445, 454 (1985); Selby v. Caruso, 734 F. 3d 554, 559 (6th Cir. 2013).
Pomerleau’s petition challenges the sufficiency of the evidence used to convict him
of the disciplinary offense. This Court’s review of whether there was “some evidence” to
support the DHO’s factual determinations is extraordinarily deferential: “[a]scertaining
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.
Instead, the relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56
Here, Pomerleau was discovered in his cell in an unresponsive state, his cellmate
readily confessed that he and Pomerleau had smoked K2 Spice, and he responded
promptly and favorably to the administration of Narcan, an outcome considered diagnostic
of opioid overdose. (Doc. # 1-1 at 2). The DHO also noted that the laboratory report still
showed elevated levels of two synthetic drugs in his system hours after he was
discovered. Finally, the DHO noted that the administration of Narcan, a drug used to
save persons suffering from opioid overdose from death or serious physical injury, acts
to reduce the detectable levels of the very unauthorized or illegal drugs it counteracts,
thus explaining why the laboratory test results did not show clinically significant levels of
some, although not all, of the compounds found in K2 Spice. (Doc. # 1-1 at 4-5). In sum,
the DHO had ample evidence—observed, testimonial, and clinical—upon which to
conclude that Pomerleau had used illegal narcotics in his cell. The disciplinary conviction
was therefore supported by some evidence and comports with the requirements of due
Accordingly, it is ORDERED as follows:
Pomerleau’s petition for a writ of habeas corpus (Doc. # 1) is DENIED.
The Court will enter a judgment contemporaneously with this order.
This matter is DISMISSED and STRICKEN from the docket.
This 22nd day of September, 2017.
K:\DATA\ORDERS\ProSe\Pomerleau 17-61-DLB Memorandum RBW.docx
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