Perez v. Rectenwald

Filing 10

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 10/8/13. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WILFREDO PEREZ,
Petitioner
v.
WARDEN MONICA RECTENWALD,
Respondent

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CIVIL NO. 3:CV-12-2114
(Judge Caputo)

MEMORANDUM
I.

Introduction
Wilfredo Perez, an inmate presently housed at FCI Allenwood, White Deer,

Pennsylvania, filed this pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. Petitioner claims his due process rights were violated during the
course of a disciplinary hearing held on September 15, 2011, where he was found
guilty of Use of Any Narcotic Not Prescribed by Medical Staff, a violation of
Disciplinary Code Section 112. Mr. Perez alleges the existence of a “gaping hole” in
the Bureau of Prison’s chain of custody regarding the urine specimen he provided
for drug testing which renders it inherently unreliable for the purposes of a
disciplinary action against him. Specifically, he alleges that the Disciplinary Hearing
Officer (DHO) relied on the lab report of another inmate, and not the report based on
his urine specimen, when finding him guilty of the charged offense. (Doc. 1, Pet.)
As relief he seeks the expungement of the incident report and sanctions, and

restoration of his forfeited good conduct time. Also pending are Mr. Perez’s Motion
for Discovery (Doc. 7) and Motion for Judicial Intervention (Doc. 9). The petition is
ripe for disposition and, for the reasons that follow, it will be denied as will as the
pending motions.

II.

Standard of Review
The Due Process Clause of the Fourteenth Amendment protects prisoners

from being deprived of life, liberty, or property without due process of law. Wolff v.
McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974); Burns
v. PA Dept. of Corr., 642 F.3d 163, 170 (3d Cir. 2011). Because federal inmates
have a protected liberty interest in good-time credit, it cannot be taken without due
process. Denny v. Schultz, 708 F.3d 140, 143-44 (3d Cir. 2013). A challenge to a
disciplinary action that resulted in the loss of good time credit is actionable under
§ 2241 because it affects the duration of the petitioner’s sentence. Queen v. Miner,
530 F.3d 253, 254 n.2 (3d Cir. 2008).

III.

Facts
On August 30, 2011, at 7:38 p.m., Mr. Perez provided Bureau of Prison

(BOP) officials with a urine specimen identified as Specimen ID No. BOP
0001355597. (Doc. 5-1, ECF p. 12.) Mr. Perez signed the BOP Chain of Custody
Form affirming that he “provided th[e] specimen for the purpose of a drug screen.
[He] acknolwege[d] that the container was sealed with the tamper-proof seal in [his]

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presence and that the specimen number provided on [the Chain of Custody Form]
and on the label affixed to the specimen container [were] the same,” No.
BOP0001355597. (Id.)
The specimen showed an initial on-site positive result of opiates. (Id., ECF
pp. 11-12) The test was mailed to National Toxicology Lab, Inc., on August 31,
2011, for confirmation of the positive result. (Id., ECF p. 10.) On September 6,
2011, prison officials received notification from National Toxicology that urine
specimen No. BOP0001355597 was confirmed positive for Opiates (Morphine). (Id.,
ECF pp. 10 and 13.) Medical staff at the institution reviewed Mr. Perez’ medical
records to verify he was not receiving any medication that would cause a positive
result for Opiates. (Id., ECF p. 10 and 14.) Mr. White issued Mr. Perez incident
report No. 2207244 charging him with Use of Any Narcotics Not Prescribed by
Medical Staff, a violation of Code 112, on September 6, 2011. (Id., ECF p. 10.)
On September 10, 2011, the Unit Disciplinary Committee (UDC) held a
hearing to review the incident report. (Id.) Mr. Perez was provided with a Notice of
Disciplinary Hearing Before the Disciplinary Hearing Officer and Inmate Rights at
Disciplinary Hearing Form the same day. (Id., ECF pp. 16-17.) After reviewing the
matter, the UDC referred it to the DHO for resolution. (Id., ECF p. 10.)
Mr. Perez requested staff representation but waived his right to call
witnesses. (Id., ECF p. 17.) On September 15, 2011, Mr. Perez appeared for a
hearing before DHO, K. Bittenbender. (Id., ECF pp. 19-21.) At the hearing Mr.
Perez was represented by Corrections Counselor W. Fink. (Id., ECF p.19.) Mr.

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Perez was again advised of his rights, and he indicated that he understood them.
(Id.) At the hearing Mr. Perez admitted to the charge, and stated, “[t]he report is
true.” (Id.)
The DHO relied on the August 30, 2011, report written by Officer Ott who
escorted Mr. Perez to the restroom to collect the urine sample (Id., ECF p. 11), the
BOP’s Chain of Custody Form signed by Mr. Perez (Id., ECF p. 12), the September
6, 2011, Incident Report (Id., ECF p. 10), and the National Toxicology report that
urine specimen No.: BOP0001355597 was positive for Opiates (Morphine)(Id., ECF
p. 13).1 See Id., ECF pp. 19-20. The DHO relied upon the report by Health
Services which verified that Mr. Perez was not prescribed any medication that would
cause a positive test for Opiates as well as Mr. Perez’s admission of guilt (“the
report is true”). (Id., ECF p. 20.)
After considering the above cited evidence, and Mr. Perez’s testimony, the
DHO concluded that, based on the greater weight of the evidence, Mr. Perez had
committed the Code 112 violation, use of any narcotic not prescribed by medical
staff, on August 30, 2011. (Id., ECF p. 20.) For the Code 112 violation, Mr. Perez
was sanctioned with disallowance of 54 days of good conduct time, 60 days of

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Although Section D of the DHO’s report mistakenly references the National
Toxicology Laboratories Inc. Report for MARCIAL-SANTOS #23125-069 (Doc. 5-1, ECF p.
19), it is clear that the DHO, in Section V, cites to the National Toxicology Lab, Inc. for the
same urine specimen identification number that Mr. Perez certified matches the number on
his urine specimen bottle as noted on the Federal Bureau of Prison Chain of Command
Form. See Doc. 5-1, ECF p. 12, 13 and 20.) Moreover, the Respondent has supplied the
Court with copies of all relevant reports related to Mr. Perez’s urine specimen including the
initial chain of custody document identifying Mr. Perez’s specimen number, and the positive
toxicology report matching the same identification number.

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disciplinary segregation, forfeiture of 200 days non vested good conduct time, and 8
months of loss of phone, visitation, and contact visits. (Id.) He also was fined
$21.51. The decision was delivered to Mr. Perez on September 15, 2011. (Id.)

IV.

Discussion
With respect to a prison disciplinary proceeding implicating the infringement

of a cognizable liberty interest, such as the loss of good time credits, the minimum
due process protections afforded an inmate include: (1) the right to appear before
an impartial decision-making body; (2) twenty-four hours advance written notice of
the charges; (3) an opportunity to call witnesses and present documentary evidence
in his or her defense when doing so does not threaten institutional safety or
correctional goals; (4) assistance from an inmate representative if the charged
inmate is illiterate or if “the complexity of the issue makes it unlikely that the inmate
will be able to collect and present the evidence necessary for an adequate
comprehension of the case,” Wolff, 418 U.S. at 570, 94 S.Ct. at 2982; and (5) a
written statement by the factfinder citing the evidence relied upon and reasons for
the disciplinary action taken. Id. at 563-71, 94 S.Ct. at 2978-2982.
Where the due process requirements of Wolff are met, the DHO’s decision is
required to be supported by “some evidence in the record.” Superintendent, Mass.
Corr. Inst. v. Hill, 472 U.S. 445, 454-56, 105 S.Ct. 2768, 2773-74, 86 L.Ed.2d 356
(1985); see also Young v. Kann, 926 F.2d 1396, 1402–03 (3d Cir.1991) (applying
Hill standard to federal prisoner due process challenges to prison disciplinary

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proceedings). The determination of whether the 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, 105 S.Ct. at 2774. Under Hill, judicial
review of a prison disciplinary decision is limited to ensuring that the prisoner was
afforded certain procedures, the action against him was not arbitrary, and that the
ultimate decision has some evidentiary support. Id. at 457, 105 S.Ct. at 2775; see
also 28 C.F.R. § 541.8(f) (requiring that the DHO's decision be “based upon at least
some facts and, if there is conflicting evidence, on the greater weight of the
evidence.”).
Here the parties do not dispute that Mr. Perez was provided with (1) written
notice of the charges at least twenty-four hours prior to any hearing; (2) an
opportunity to call witnesses (which he declined); and (3) a written statement of the
evidence relied on and the reasons for the disciplinary action. See Wolff, supra.
The relevant inquiry is whether there is any evidence in the record that could
support the conclusion reached by the DHO. See Hill, supra. Mr. Perez clarifies in
his Traverse (Doc. 8), that “Defendants have confused Plaintiff’s claim,” and that he
is challenging the DHO’s ability to rely “on the lab report of another inmate when he
found Plaintiff guilty of the charged offense.” (Id., ECF p. 1.)
In the case at hand, it is apparent that the DHO’s decision was supported by
“some evidence” and that the DHO properly documented the findings that led to the

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decision, and the specific evidence relied upon in reaching those findings, as
required by 28 C.F.R. § 541.8(f). Mr. Perez suggests that there is no evidence to
support a finding of guilt outside of the DHO’s reliance on the positive lab results of
another inmate. However, a review of the record reveals that there clearly was
some evidence to support the DHO’s finding that Mr. Perez was guilty of the Use of
Any Narcotics Not Prescribed by Medical Staff. First, the DHO relied upon Senior
Officer Specialist Ott’s report that supervising the collection of Mr. Perez’s urine
specimen, it “was checked and appeared to have a positive” for opiates. (Doc. 5-1,
ECF pp. 11-12.) Second, and most significantly, the DHO relied upon Mr. Perez’s
own admission at the hearing that the “report is true.” (Id., ECF p. 19.) This
information alone is sufficient evidence to support the DHO’s finding.
As for Mr. Perez’s contention that the DHO relied upon the positive toxicology
report of another inmate to find him guilty, his assertion is unsupported. While the
DHO erroneously noted that he relied upon the “National Toxicology Laboratories
Inc. Report for MARCIAL-SANTOS #23125-069,” he simultaneously and correctly
references the date of Mr. Perez’s urine sample, the initial positive test result, the
Specimen ID number originally assigned to Mr. Perez’s urine sample, and the
positive National Toxicology report which is identified, not by inmate name, but by
the specimen number that matches that assigned to Mr. Perez’s sample. See Id., p.
12 and p. 13.
To the extent Mr. Perez asserts that the existence of “gaping holes” in the
BOP’s chain of custody in the handling of his urine specimen, the evidence in the
record does not support his assertion. A review of the Chain of Custody Form
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reveals that Mr. Perez’s sample was collected and sealed in his presence, as
verified by Mr. Perez. The DHO reviewed the National Toxicology Laboratory
Report, which matches the specimen sample noted on the Chain of Custody Form,
which states that Mr. Perez’s urine sample was positive for opiates (morphine).
In sum, notwithstanding Mr. Perez’s assertion that the DHO erroneously
made reference to the toxicology report of another inmate, a review of the record
reveals that the DHO clearly had some evidence, which had an indicia of reliability
(Mr. Perez’s admission, the initial positive test result, and the toxicology report
matching Mr. Perez’s specimen number), to support his decision. The Court's
responsibility under Hill is not to weigh this evidence or assess its probative value,
but merely to determine that at least some evidence exists to support the conviction,
Hill, 472 U.S. at 455, 105 S.Ct. at 2775, a standard readily satisfied here.
Accordingly, the DHO’s determination must be upheld.
As for Mr. Perez’s motion for discovery, it will be denied. A habeas corpus
petitioner must obtain leave of court in order to engage in discovery under the
Federal Rules of Civil Procedure. See Rule 6 of the Rules Governing Section 2254
Cases in the United States District Courts (applicable to § 2241 petitions under Rule
1(b)). Discovery is available in habeas corpus proceedings at the discretion of the
court for "good cause" shown. (Id.) "Good cause" is demonstrated when the
petitioner establishes a prima facie claim for relief, and a petitioner's claims are
specific, not merely speculative or conclusory. Murphy v. Johnson, 205 F.3d 809
(5th Cir. 2000). In order to establish "good cause," a petitioner must point to specific

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evidence that might be discovered that would support a constitutional claim. Deputy
v. Taylor, 19 F.3d 1485, 1493 (3d Cir.1994). Here, Mr. Perez seeks information
concerning the number of false positive urine test results by FCI Allenwood, all test
results bearing his name and registration number, a list of all the over-the-counter
medications and foods that could yield a false positive urine, and a copy of the
BOP’s guidance to prison officials to prevent cross contamination and false positive
readings. (Doc. 7.) Based on Mr. Perez’s admission of guilt, he has failed to
demonstrate good cause as to why the requested materials should be produced.
Based on a review of the record, it appears that the relevant evidence required to
make a full and fair disposition of this action has already been provided to this court.
Consequently, since Mr. Perez has failed to establish good cause as required under
Rule 6, his request to undertake discovery will be denied.
Likewise, Mr. Perez’s Motion for Judicial Intervention (Doc. 9) will be denied.
Mr. Perez alleges that DHO Bittenbender has altered documents and “reinstituted”
administrative remedy procedures against him “for the exact alleged violation that is
the subject of this action.” (Id.) What is meant by these allegations is uncertain.
Moreover, Mr. Perez did not brief his motion as required by Pa. M.D. Local Rule 7.5.
As such, the motion will be dismissed.

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V.

Conclusion
For the foregoing reasons, the Petition for Writ of Habeas Corpus (Doc. 1)

will be denied. Since a certificate of appealability is not needed to appeal this
dismissal of a habeas petition filed under § 2241, Burkey v. Marberry, 556 F.3d 142,
146 (3d Cir. 2009), Mr. Perez need not apply for one with this Court or the Third
Circuit Court of Appeals before seeking to appeal this decision.
An appropriate Order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: October 8

, 2013

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