United States District Court, E.D. Kentucky, Southern Division, London
OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
inmate Camacho Baltazar filed his habeas corpus petition
under 28 U.S.C. § 2241, contending that his prison
disciplinary conviction for possessing narcotics is invalid
because the field kit that was used to test for them yielded
unreliable evidence. [R. 1] The warden responds that the
field test kit was reliable and Baltazar's conviction was
supported by “some evidence” as required to
satisfy due process concerns. [R. 8] Baltazar has filed his
reply [R. 9], and this matter is ripe for decision.
March 2018, a prison guard searched Baltazar and found ten
pieces of thick lined paper in his front pocket. Ten minutes
later a lieutenant tested the paper using a Narcotic
Identification Kit (“NIK”). The first test, NIK
Test A, was positive for amphetamines. A second, confirmatory
test, NIK Test U, was also positive for amphetamines. On the
basis of these tests prison officials issued an Incident
Report charging Baltazar with Possession of Narcotics or
Drugs, a Prohibited Act Code 113 offense. [R. 1-2 at 1]
Disciplinary Hearing Officer (“DHO”) held a
hearing on the charges one week later. During the hearing
Baltazar did not raise any procedural objections to the
disciplinary process. Instead, he stated that he purchased
the paper from the prison's commissary and that it was
just regular paper. The DHO nonetheless found Baltazar guilty
of drug possession, finding the officer's report and the
results of two drug tests more reliable evidence than his
unadorned denial. The DHO imposed various sanctions which
included the disallowance of 41 days of good conduct time.
[R. 1-2 at 2-5] Baltazar appealed the DHO's finding,
contending that the investigation was inadequate; the NIK
test is unreliable; the officer who conducted it lacked
necessary training; and the paper should have been tested at
an outside laboratory. The Bureau of Prisons denied the
appeal at both the regional and national level, responding
that the officer who conducted the test was properly trained
and certified to do so; that the NIK tests are reliable; and
that outside testing was not necessary. [R. 1-2 at 6-11]
petition, Baltazar repeats his contention that the NIK tests
are unreliable and cannot satisfy the “some
evidence” standard required by the Due Process Clause.
He argues, without evidentiary support, that NIK test kits
frequently yield “false positive” test results,
and therefore that “[w]ithout requiring conclusive
laboratory testing, the BOP is violating the
Constitution.” [R. 1-1 at 3-6]
well established that before prison officials may disallow or
order forfeit an inmate's good time credits, procedural
due process requires that the prisoner receive (1) advance
notice of the charges; (2) an opportunity to call witnesses
and present evidence; and (3) a written decision explaining
the grounds used to determine guilt or innocence of the
offense. Wolff v. McDonnell, 418 U.S. 539, 563-67
(1974). Baltazar does not suggest that these requirements
were not met.
he contends that the reasons used to justify the loss of good
time credits were not supported by some evidence in the
record as required by Superintendent v. Hill, 472
U.S. 445 (1985). In Hill, the Supreme Court
explained that under the “some evidence”
standard, “the relevant question is whether there is
any evidence in the record that could support the conclusion
reached by the disciplinary board.”). Id. at
454-55. The Hill standard is a lenient one,
requiring only “a modicum of evidence” to support
the outcome, and is met if the record contains any
evidence that could support the DHO's decision.
Hill, 472 U.S. at 455-56. Because the
“[r]evocation of good time credits is not comparable to
a criminal conviction, ” there is no per se
requirement that an investigator divulge or the DHO obtain
and consider all exculpatory evidence. Instead, the DHO's
decision must merely “have some basis in fact.”
Id. at 456.
DHO's decision was supported by ample evidence. The
papers found on Baltazar's person were subjected to two
different drug tests and both tests came back positive for
amphetamine. Because there is evidence in the record to
support the DHO's decision, it satisfies the requirements
of due process. Hill, 472 U.S. at 455-56.
alleges, without evidentiary support, that the NIK tests used
are not reliable. But as the petitioner seeking habeas relief
in this proceeding, it is his burden to come forward with
evidence establishing that the NIK tests used in his
particular case are so unreliable that they provided
essentially no evidence at all that amphetamines were present
in the paper that was tested. Instead he offers only
argument. Indeed he does not offer any information about the
particular test kit used, its manufacturer or model number,
or the reagents involved. Without a particularized argument
supported by evidence rather than mere supposition, Baltazar
has failed to carry his burden. Accord Higgs v.
Bland, 888 F.2d 443, 449 (6th Cir. 1989) (“Of
course, a test which produced frequent incorrect results
could fail to constitute ‘some evidence' under the
Hill standard. However, no evidence was produced in
this case to indicate that the probability of false results
was more than a mathematical possibility. ... we have little
difficulty in concluding that the presence of a positive EMIT
test constitutes ‘some evidence' from which the
adjustment board could conclude that a tested inmate was
guilty of the offense of drug use.”).
from evidentiary shortcomings, this type of argument has
consistently been rejected by the courts. See Arce v.
Sepanek, No. 7: 15-CV-09-ART (E.D. Ky. July 6, 2015)
(“The DHO's evidence-the reports of two officers
and a positive drug test-meets the low ‘some
evidence' burden.”). As noted above, Hill
does not require prison officials to obtain the best or even
good evidence; it merely requires them to have some evidence
sufficient to rationally support their conclusion.
Hill, 472 U.S. at 455-56. The NIK test, while
perhaps not as perfect as a test conducted in a laboratory
setting, is considered generally reliable. Peer v.
Denham, No. 15-cv-54-GPG, 2015 WL 5579654, at *6 (D.
Colo. Sept. 23, 2015) (citing Terry v. Dept. of Public
Safety & Corr. Servs., No. 11-CV-1686, 2012 WL
2564779, at *8 (D. Md. June 29, 2012)). Even if it were
considered merely adequate with the risk of a false positive,
that is sufficient to satisfy due process concerns. Cf.
Easter v. Saffle, 51 Fed.Appx. 286, 289 (10th Cir.
2002) (holding that a “single urinalysis
amounts to ‘some evidence' and thus satisfies due
process” even if the risk of a false positive exists).
And the Constitution does not require that the results of a
test conducted at the prison be confirmed by an outside
laboratory. Henson v. Bureau of Prisons, 213 F.3d
897, 898-99 (5th Cir. 2000); Allen v. Purkett, 5
F.3d 1151, 1153 (8th Cir. 1993); Koenig v. Vannelli,
971 F.2d 422, 423 (9th Cir. 1992); see also Cato v.
Ives, No. 12-CV-193-GFVT, 2013 WL 1856101, at *5 (E.D.
Ky. Apr. 30, 2013) (“A prisoner also has no protected
due process right in obtaining outside scientific or
laboratory testing of evidence to be used against
him.”); Manfredi v. United States, No. 12-1905
(RMB), 2012 WL 5880343, at *6 (D.N.J. Nov. 20, 2012) (same).
the two drug tests used by the BOP provided more than
sufficient factual basis for them to conclude that Baltazar
was found in possession of narcotics, the disciplinary
sanctions were warranted and his petition must be denied.
the Court ORDERS as follows:
Court DENIES Camacho Baltazar's petition
for a writ of habeas corpus [R. 1].
action is DISMISSED and