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McCoy v. Stewart

United States District Court, D. Maryland

August 3, 2016

JEFFREY McCOY, Inmate Identification No. 36769-037, Petitioner,


          Theodore D. Chuang United States District Judge

         On August 26, 2015, Petitioner Jeffrey McCoy, who is currently incarcerated at the Federal Correctional Institution in Cumberland, Maryland ("FCI Cumberland"), filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 9 2241, asserting that he was unlawfully charged with refusing to provide a breathalyzer sample. Presently pending before the Court is the Motion to Dismiss or, in the Alternative, for Summary Judgment filed by Respondent Warden Timothy Stewart ("the Warden"), which was filed on November 9, 2015. The Warden asserts that McCoy was found guilty of a rule infraction for "Refusing to Provide a Urine Sample or to Take Part in any Other Drug-Abuse Testing" and that McCoy received all process that was due during his institutional proceedings regarding the rule infraction.

         On December 14, 2015, McCoy filed a Declaration in which he requested discovery to oppose the Government's Motion. On June 15, 2016, the Court issued an Order denying McCoyss request and directing him to respond to the Government's Motion within 21 days. That 21-day period expired on July 6, 2016, and to date the Court has not received a response from McCoy. The Motion is therefore ready for disposition, and a hearing is unnecessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Government's Motion, construed as a Motion for Summary Judgment, is GRANTED.


         The following facts are presented in the light most favorable to McCoy, the nonmoving party.

         On May 9, 2014, Senior Officer Specialist K. Smith prepared an Incident Report, in which he alleged that McCoy violated "Code 110" for refusing to take a breathalyzer test for alcohol use. Incident Report at 2, Mot. Dismiss or, in the Alternative, Summ. J. ("Mot.") Ex. 3, ECF No. 45.[1] The Bureau of Prisons has promulgated regulations that prohibit certain acts by inmates, including subsection 110, which bars "[r]efusing to provide a urine sample; refusing to breathe into a Breathalyze;; [and] refusing to take part in other drug-abuse testing." See 28 C.F.R. 9 541.3 (2016). A violation of subsection 110 is punishable by "[f]orfeit[ing] and/or withhold[ing] earned statutory good time or non-vested good conduct time (up to 100%) and/or termina[ing] or disallow[ing] extra good time." Id.

         According to Officer Smith, on May 9, 2014, he was conducting routine breathalyzer tests in the middle of the compound at FCI Cumberland. To prepare to administer a breathalyzer test to McCoy, he opened a new breathalyzer tube in front of McCoy to be placed on the ALCO-Sensor 111 device into which McCoy would be required to blow. McCoy refused to blow into the device and requested that Officer Smith use a new tube. Officer Smith advised McCoy that he had just removed the wrapper from a new tube and would not unwrap another tube. McCoy then asked to speak to a lieutenant. As Officer Smith escorted McCoy to Lieutenant Deurr's office, he explained that he had opened the tube in front of McCoy and would never tell an inmate to use a tube that had already been used by an inmate. When they arrived at the lieutenant's office, McCoy continued to refuse to take the breathalyzer test.

         McCoy received a copy of the Incident Report on May 9, 2014, the same day it was prepared. In response, McCoy stated, "All I did was ask the officer to change the tube. I didn't refuse to take it. I just wanted a fresh tube. The tube was already there when I got there. I didn't know where that one had been." Incident Report at 3.

         On May 12, 2014, the Unit Discipline Committee ("UDC"), an group of independent prison staff that reviews incident reports once investigations are complete, see 28 C.F.R. S 541.7, referred the Report to a discipline hearing officer ("DHO"), an impartial decision maker who had no prior involvement in the matter, see 28 C.F.R. S 541.8. The UDC advised: "If guilty, UDC recommends 41 days loss of [good conduct time], 30 days loss of commissary." Incident Report at 2. The DHO held a hearing on May 28, 2014. At the hearing, McCoy was represented by T. Hart-Smith, Supervisor of Education at FCI Cumberland. During the hearing, McCoy acknowledged receiving a copy of the incident report and that he understood his rights at the hearing. McCoy testified that he was walking across the yard when he was called over for a "breath test" by Officer Smith. DHO Report at 1, Mot. Ex. 6, ECF No. 4-8. McCoy stated that the machine was in the officer's hand and he was instructed to blow. McCoy stated that he blew but did not close his lips around the tube. When Officer Smith instructed him to blow through the tube, McCoy requested that the tube be replaced. When Officer Smith would not do so, McCoy refused to use the same tube because he had not seen it placed on the machine. McCoy admitted that after being taken to Lieutenant Deurr's office, he was again instructed to blow into the existing tube but refused to do so.

         Two other inmates testified at the hearing. Shawn Lee Simons testified that McCoy was asked to submit to a breath test and that he asked for a new tube. Simons also testified that he did not see the officer wearing gloves and did not see him put the tube onto the machine, but he acknowledged that he was not present for the entire incident. Rashard Wilson testified that he heard McCoy ask Officer Smith to change the tube. He stated that he was not paying close attention and did not know if Officer Smith was wearing gloves.

         Upon reviewing the evidence, the DHO issued a written report finding McCoy guilty of the rule violation. The DHO based his ruling on Officer Smith's description of the incident in the Incident Report and McCoyss admission that he did not close his lips around the tube and blow through the breathalyzer. The DHO stated that he considered McCoyss defense that he refused the breath test because he did not see Officer Smith put a clean tube on the device. Because the testimony of other inmate witnesses "shed no light on this subject" because they observed only glimpses of the incident and were unable to give a complete account of the incident, the DHO concluded that the dispute of fact boiled down to McCoyss word against Officer Smith's. Id. at 3. Finding that McCoy had a greater motive to argue that the tube was not changed because of the severe consequences facing him, the DHO gave greater weight to Officer Smith's account of the incident and concluded that McCoy had violated Code 110.

         Based on the DHO's finding, McCoy was sanctioned with the loss of 41 days of good conduct time. He was also sanctioned with 45 days of disciplinary segregation, to be suspended pending 180 days of clear conduct. McCoy received a copy of the DHO Report.


         I. ...

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