Filed: Jul. 10, 2019
Latest Update: Mar. 03, 2020
Summary: BLD-217 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-1350 _ DANIEL WERT, Appellant v. WARDEN ALLENWOOD USP _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 1-18-cv-00963) Chief District Judge: Christopher C. Conner _ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 June 20, 2019 Before: AMBRO, KRAUSE and PORTER, Circ
Summary: BLD-217 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-1350 _ DANIEL WERT, Appellant v. WARDEN ALLENWOOD USP _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 1-18-cv-00963) Chief District Judge: Christopher C. Conner _ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 June 20, 2019 Before: AMBRO, KRAUSE and PORTER, Circu..
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BLD-217 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-1350
___________
DANIEL WERT,
Appellant
v.
WARDEN ALLENWOOD USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-18-cv-00963)
Chief District Judge: Christopher C. Conner
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 20, 2019
Before: AMBRO, KRAUSE and PORTER, Circuit Judges
(Opinion filed: July 10, 2019)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Appellant Daniel Wert appeals from an order of the District Court dismissing his
petition for writ of habeas corpus, 28 U.S.C. § 2241, for lack of jurisdiction. For the
reasons that follow, we will summarily affirm.
Wert, a federal prisoner, filed a § 2241 petition for writ of habeas corpus,
challenging the sanctions he received for a Code 112 violation (Use Of Any Narcotic,
Marijuana, Drugs, Alcohol, Intoxicants, Or Related Paraphernalia, Not Prescribed For
The Individual By Medical Staff) on the ground that he was deprived of his right to
present a full defense to the charges. The incident report issued to Wert states that
officials at USP Allenwood received a report from Pharmatech Laboratories, which
indicated that Wert’s urine sample – collected on July 19, 2017 – tested positive for
Buprenorphine (Suboxone); and that a review of his medical records showed that he had
not been prescribed that medication (which, we note, is used to treat an opioid addiction).
Wert appeared before the Unit Disciplinary Committee and stated: “I’ve never done that
before in my life.” The Unit Disciplinary Committee referred the charge to a
Disciplinary Hearing Officer (“DHO”), recommending that, if found guilty, the sanctions
against Wert include the loss of 40 days of good conduct time.
At his disciplinary hearing on August 7, 2017, Wert waived his right to a staff
representative, and his right to present witnesses. He gave this statement: “I don’t do
drugs.” Wert was found guilty of violating Code 112 based on the weight of following
evidence: the Pharmatech Laboratories toxicology report; a Chain of Custody Form
2
signed by Wert indicating that the urine sample which allegedly tested positive for
Buprenorphine (Suboxone) was the same urine sample he had provided; and a
memorandum from a prison health official stating that Wert had not been prescribed this
drug or any drug that would cause this result. The report states: “The DHO believed the
information provided by the staff member involved in this case, as they derived no
known benefit by providing false information.” The DHO imposed the following
sanctions: Disciplinary Segregation – 30 days; Loss of Telephone Privileges – 8 months;
and Loss of Visitation – 8 months.
Wert timely appealed the misconduct and sanctions at the Regional level,
contending that he had never used Buprenorphine (Suboxone) “in [his] entire life,” that
he had not been provided with a copy of the Pharmatech Laboratories toxicology report
on which the DHO had relied; and that the “level the DHO said I tested positive for is not
high enough to justify a positive saturation level conviction.” Wert asked that his urine
sample be retested, alleging “[p]ossible cross-contamination due to prison negligence;”
and that the officer who administered the urinalysis “did not change his gloves prior to
handling [Wert’s] cup.” On September 25, 2017, the Regional Director denied Wert’s
appeal, concluding that there “were no due process concerns or deviations from policy;”
that the decision of the DHO was based on the greater weight of the evidence; and that
the sanctions imposed were not disproportionate to the misconduct.
3
Wert then appealed at the national level. He raised the same arguments, and
requested retesting of the urine sample and copies of all pertinent lab reports. While that
appeal was pending, Warden L.J. Oddo approved Wert’s request to have an independent
drug test conducted (at Wert’s expense), and a hair follicle specimen was collected from
Wert by ExperTox Laboratories on December 11, 2017. In a decision dated December
20, 2017, the National Inmate Appeals Administrator denied Wert’s appeal, concurring
with the response provided by the Regional Director. The next day, on December 21,
2017, the test results pertaining to Wert’s hair follicle were “transmitted” (according to
the report itself), and the results for the presence of Buprenorphine, as certified by a
physician, were “Negative.”1
On May 8, 2018, Wert filed his § 2241 petition in the United States District Court
for the Middle District of Pennsylvania, alleging a violation of his procedural due process
rights in connection with the Code 112 misconduct and sanctions imposed. Wert alleged
that he is actually innocent of the misconduct based on the ExperTox Laboratories
toxicology report, and thus, to avoid a miscarriage of justice, his sanctions should be
vacated and the misconduct expunged from his prison records. In addition, Wert noted in
the § 2241 petition that he attempted to reopen administrative proceedings based on the
ExperTox Laboratories report. He asserted that he sent a copy of the exculpatory lab
1
Wert asserted that a hair follicle will show the presence of the subject drug for up to six
months. The following note appears under the Test Comment section of the ExperTox
Laboratories toxicology report: “Underarm hair tested (Up to 6 month timeframe)”.
4
report to National Inmate Appeals on January 17, 2018. He further asserted that he spoke
to Warden Oddo about the exonerating hair follicle report, and Warden Oddo advised
him to contact the Regional Director. He asserted that he filed an additional appeal with
the Northeast Regional Office, in which he argued that he was actually innocent of the
misconduct based on the ExperTox Laboratories toxicology report, but that the appeal
was denied on March 11, 2018 based “on a timeliness issue.”
The respondent, Warden Oddo, answered Wert’s § 2241 petition, arguing that it
should be dismissed for lack of subject matter jurisdiction because the petition did not
challenge either the fact or length of Wert’s sentence or confinement. The District Court
agreed, and, in an order entered on January 11, 2019, dismissed Wert’s § 2241 petition.
Wert appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our Clerk
granted Wert leave to appeal in forma pauperis and advised him that the appeal was
subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary action under
Third Cir. LAR 27.4 and I.O.P. 10.6. Wert was invited to submit argument in support of
the appeal; he has not done so.
We will summarily affirm the order of the District Court dismissing Wert’s § 2241
habeas petition because no substantial question is presented by the appeal, Third Circuit
LAR 27.4 and I.O.P. 10.6. A federal prisoner’s procedural due process challenge to a
disciplinary action that results in the loss of good conduct time is properly brought under
28 U.S.C. § 2241, because the action could affect the duration of the prisoner’s sentence.
5
See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (challenge that affects fact or
duration of confinement must be brought in habeas petition). Where the fact or duration
of confinement is implicated, certain procedural due process protections, including the
right to present exculpatory evidence, apply. See Howard v. U.S. Bureau of Prisons,
487
F.3d 808, 812 (10th Cir. 2007) (citing Wolff v. McDonnell,
418 U.S. 539, 556 (1974);
Superintendent, Massachusetts Correctional Inst. v. Hill,
472 U.S. 445, 454 (1985)).2
Wert’s due process challenge, however, is not properly brought under § 2241
because it did not involve the loss of good conduct time. The DHO did not sanction Wert
to any loss of good conduct time as result of the Code 112 violation. Because Wert was
not sanctioned with the loss of good conduct time, the outcome of his habeas corpus
petition does not affect the length or duration of his confinement in prison and, thus, does
not trigger procedural due process protections. Wert has cited no legal authority for his
argument that a prisoner’s “actual innocence” of the misconduct constitutes an exception
to the threshold habeas requirement of the loss of good conduct time, and we are aware of
none.
2
In Howard, the prisoner, who had been sanctioned with the loss of good conduct time,
argued that a videotape documenting an altercation would exonerate him, but the DHO
refused to produce and review the videotape, in part, on the ground that prison staff are
legally obligated to tell the truth and introducing any possible videotape evidence would
thus not be exculpatory. Because critical facts relating to the prisoner’s defense may
have been recorded on the videotape, the Tenth Circuit Court of Appeals held that the
DHO’s refusal to produce and review the videotape violated the prisoner’s procedural
due process rights, referring to the agency’s argument that prison staff are legally
obligated to tell the truth as “Orwellian.” 487 F.3d at 814.
6
To be clear, had the DHO followed the recommendation of the Unit Disciplinary
Committee and sanctioned Wert to a loss of good conduct time (in any amount), the
threshold requirement would be met and we could consider the novel question presented
by Wert’s petition, namely, whether the procedural due process requirements applicable
under Wolff include the opportunity to have exculpatory evidence considered where the
Warden himself approved independent testing but the results of the testing were not
received until one day after the National Inmate Appeals Administrator rendered his
adverse decision. For better or worse (from his perspective), Wert was not sanctioned
with the loss of good conduct time and thus he cannot maintain this habeas corpus action.
For the foregoing reasons, we will affirm the order of the District Court dismissing
Wert’s § 2241 petition for writ of habeas corpus.
7
