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Darres Chinsong Park v. Stewart

United States District Court, D. Maryland

April 10, 2014

DARRES CHINSONG PARK, Petitioner,
v.
WARDEN TIMOTHY STEWART, Respondent.

MEMORANDUM

ELLEN LIPTON HOLLANDER, District Judge.

Darres Chinsong Park, the self-represented petitioner, is a prisoner confined to the custody of the Federal Bureau of Prisons ("BOP") and currently assigned to the Federal Correctional Institution ("FCI") in Cumberland, Maryland. While Park was held at the United States Penitentiary in McCreary, Kentucky ("USP McCreary"), he was subjected to drug testing.[1] Claiming he was denied due process in connection with that drug testing, Park has filed a petition for habeas corpus relief. He asks the Court to vacate the sanctions imposed by the BOP, restore his good conduct credits, and remove from his BOP file the Incident Report in connection with the drug testing. ECF 1 at 8.

Respondent, Warden Timothy Stewart, has filed a motion to dismiss or for summary judgment (ECF 4), along with a Memorandum of Law and numerous exhibits (collectively, the "Motion"). Park opposes the motion. ECF 8. No hearing is necessary to resolve the matter. See Local Rule 105.6. For the reasons that follow, the habeas corpus petition shall be denied and a certificate of appealability shall not issue.

Factual Background

In 2002 and 2008, Park was convicted in the United States District Court for the Western District of Washington of "Conspiracy to Commit Bank Robbery" and "Felon in Possession of a Firearm, " respectively. He is serving an aggregate term of 15 years' imprisonment. ECF 4-3, Declaration of Gary Mehler, BOP Discipline Hearing Officer (Gov't. Ex. 1) at ¶ 4.[2]

While incarcerated at USP McCreary, Park was subjected to a urinalysis test on November 1, 2011. Id. ¶ 6.[3] On November 2, 2011, BOP staff sent the specimen to the National Toxicology Laboratories for further testing. ECF 4-10 (Gov't. Ex. 2). On that date Park, signed the chain of custody form indicating the container sent for further testing was sealed with a tamper-proof seal in his presence and that the specimen number on the container (BOP0001399580) matched the number on the form. Id. The specimen was received by the National Toxicology Laboratories on November 4, 2011; positive results for the presence of opiates (Codeine and Morphine) were recorded by the lab on November 7, 2011. ECF 4-11 (Gov't. Ex. 3); ECF 4-3 (Gov't. Ex. 1) at ¶ 7; ECF 4-6 (Gov't. Ex. 1C). Additionally, the lab certified that the specimen received from USP McCreary was handled and analyzed in accordance with all applicable requirements and that the test results indicated were the results for that specimen. ECF 4-11 (Gov't. Ex. 3). Moreover, the specimen referred to in the lab results was identified as specimen number BOP0001399580, the same identification number indicated on the chain of custody form signed by Park. Id .; see also ECF 4-10 (Gov't. Ex. 2).

On November 30, 2011, "B. Baker, SIS Technician"[4], sent a memorandum to medical staff at USP McCreary indicating that two tests performed on Park's urine sample had proved positive for opiates. ECF 4-12 (Gov't. Ex. 4). Baker asked medical staff to review Park's medical record to determine if he had been prescribed the type of medication, codeine and morphine, found in his urine. Id. Medical staff confirmed they had reviewed Park's medical record and found no evidence indicating codeine or morphine had been prescribed for him. Id. On the same date this confirmation was issued by medical staff, Park was served with an Incident Report alleging he had used narcotics not prescribed to him by medical staff. ECF 4-6 (Gov't. Ex. 1C). In addition to the Incident Report, Park was provided with a copy of the laboratory report and the medical staff response, the evidence relied upon to charge him with a disciplinary violation. Id. Park's only statement when he was served with the Incident Report was he could not believe "it took medical that long to respond." Id.

As noted, the incident report charging Park with a rules violation was written on November 30, 2011. In particular, Park was charged with violating Code 112, which prohibits the "use of any narcotic, or related paraphernalia not prescribed for the individual by the medical staff." ECF 4-3, ¶ 9.

On December 1, 2011, Park was provided with notice of a hearing, and the hearing took place on January 11, 2012. ECF 4-7 (Gov't. Ex. ID). The notice advised Park, inter alia, that he had a right to present witnesses and offer documentary evidence. Park elected to have a staff member represent him at the hearing, but listed no witnesses. ECF 4-8 (Gov't. Ex. 1E). Park testified at the hearing and denied using the narcotics indicated in the test results. Apart from his denial, Park offered no other evidence, nor did he raise a claim regarding the chain of custody of the specimen. ECF 4-9 (Gov't. Ex. 1F). After consideration of all the evidence, including Park's denial, Mehler, the Disciplinary Hearing Officer, found Park guilty of violating BOP regulations by using a narcotic not prescribed to him by medical staff. Id., see ECF 4-3 at ¶¶ 12-14. As a penalty, Park lost 41 days of good conduct credit, was placed on disciplinary segregation for 30 days, and lost visiting privileges for one year. Id. at ¶ 15; see also ECF 4-9 (Gov't. Ex. F).

Park complains that the "SIS technician" did not request medical confirmation until November 30, 2011. Such confirmation was required to ascertain if Park had been prescribed medication that would have rendered the test results positive for those substances. Park also claims that the delay between the time the test results were received and the date the incident report was written violated 28 C.F.R. §541.5 as well as his right to due process. Additionally, he states that the chain of custody violated the applicable regulation and that BOP staff have never accurately addressed his assertions, "despite clear evidence." As noted, Park asks the Court to restore the good conduct credits revoked as a penalty for the disciplinary rule violation, to vacate the sanctions that were imposed, and to remove the incident report from his record. ECF 1 at 8.

Standard of Review

Respondent's motion is styled as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, "the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). When the movant expressly captions its motion "in the alternative" as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court "does not have an obligation to notify parties of the obvious." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

In contrast, a court may not convert a motion to dismiss to one for summary judgment sua sponte, unless it gives notice to the parties that it will do so. See Laughlin, 149 F.3d at 261 (stating that a district court "clearly has an obligation to notify parties regarding any courtinstituted changes" in the posture of a motion, including conversion under Rule 12(d)); Finley Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp., 109 F.3d 993, 997 (4th Cir. 1997) ("[A] Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for summary judgment until the district court acts to convert the motion by indicating that it will not exclude from its consideration of the motion the supporting extraneous materials.").

A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. at 149. In general, courts are guided by whether consideration of extraneous material "is likely to ...


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