United States District Court, E.D. Kentucky, Southern Division, London
RYAN R. POMERLEAU PETITIONER
J. RAY ORMOND, WARDEN RESPONDENT
MEMORANDUM OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE
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
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).
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. In addition, Pomerleau and Wilson both
displayed various withdrawal symptoms such as shivering,
increased heart rate, and vomiting. (Doc. # 1-1 at 2-3).
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).
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 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 remember anything.
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).
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).
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).
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 (emphasis added).
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 ...