Robinson v. Werlich

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL L. ROBINSON, )

)

Petitioner, )

)

vs. ) Case No. 20-cv-208-SMY

)

ERIC WILLIAMS, )

Warden, FCI-Greenville, )

)

Respondent.

MEMORANDUM AND ORDER

YANDLE, District Judge:

Petitioner Michael L. Robinson, an inmate in the Bureau of Prisons (BOP), filed a Petition

for Writ of Habeas Corpus under 28 U.S.C. § 2241 to challenge the imposition of disciplinary

sanctions against him. Respondent filed a Response to the Petition (Doc. 18), Robinson filed a

Reply (Doc. 19). For the following reasons, the Petition will be DENIED.

Background

Robinson was convicted in the Eastern District of Missouri for conspiracy to distribute and

intent to distribute marijuana, cocaine, and methamphetamine, and was sentenced to 292 months

imprisonment followed by 10 years of supervised release. See United States v. Robinson, Case

No. 05-cr-294-CEJ (E.D. Mo.) (Doc. 18-2, p. 59). Robinson’s projected release date is April 8,

2026.1

The disciplinary incident giving rise to this action occurred while Robinson was

incarcerated at FCI-Greenville. According to the Incident Report (Doc. 18-2, pp. 67-68), on April

1 According to public information on the BOP website, Robinson is currently scheduled for release on April 8, 2026.

Https://www.bop.gov/inmateloc/ (Last visited November 29, 2022).

11, 2019, BOP Religious Services Assistant Carrie Sellers searched Cell 125 in Housing Unit B at

FCI-Greenville. Robinson and Inmate Robert Sloat were assigned to this cell. Sellers drafted and

signed a memorandum regarding the results of the search that stated as follows:

“On 4/11/2019, at approximately 10:30 AM, Religious Services Assistant Selers

conducted a cell search in Housing United 4B cell 125 belonging to Inmate

Robinson, Michael Reg. No. 31932-044 and Sloat, Robert Reg. No. 07294-025. I

recovered one (1) full piece of white lined notebook paper with faded blue lines on

one side; and the number 125 written 4 times attached to the handle of a small

broom in the common area of the cell.” (Doc. 18-2, p. 69).

The notebook paper was released to the Special Investigate Services (S.I.S.) Technician J.

Serio who tested the paper using a narcotic identification kit (NIK test) and completed the Incident

Report, charging Robinson with a violation of Prohibited Act 113 – possession of any narcotics,

and noting:

“On 4/11/2019, at approximately 10:30 AM, Religious Services Assistant C.

Sellers conducted a cell search in inmate cell 125. During the search (1) sheet of

white paper, soaked in an unidentified substance, was found rolled up and hidden

inside the handle of a dust pan located in the common area of cell 125. Cell 125

has (2) inmate occupants, Sloat, Robert, Reg. No. 07294-0125 and Robinson,

Michael, Reg. No. 31932-044. The paper, with the unidentified substance was

released to the SIS department.

I tested the sticker with NIK test kit A, resulting in a positive test for opium

alkaloids (purple color). I proceed to NIK test kit U, resulting in a negative test for

methamphetamine (burgundy color). I concluded with NIK test kit K, resulting in

a positive test for buprenorphine (purple color).” (Doc. 18-2, p. 67).

Lt. Ki. Dugdale gave Robinson a copy of the Incident Report on April 24, 2019 (Doc. 18-2, p.

68).

All incident reports are reviewed by a Unit Discipline Committee (“UDC”). 28 C.F.R.

§541.7. The UDC has several options when reviewing an incident report, including a referral of

the report to the Disciplinary Hearing Officer (“DHO”) for further review, based on the seriousness

of the prohibited act charged. Id. If the UDC refers the incident report to the DHO for further

review, the UDC will advise the inmate of his rights at the upcoming DHO hearing, as set forth in

28 C.F.R. §541.8.

On April 25, 2019, the Unit Discipline Committee (“UDC”) provided Robinson with a

Notice advising him that a hearing would be scheduled before a Disciplinary Hearing Officer

(“DHO”) and outlining his rights with respect to the hearing (Doc. 18-2, p. 77). Robinson signed

acknowledgement of the Notice (/d.). He indicated that he did not wish to have a staff

representative or call any witnesses at the hearing (Doc. 18-2, p. 79).

On May 9, 2019, the hearing was convened by DHO Michael Puckett, but postponed due

to a discrepancy in the Incident Report as to whether Serio tested paper or a sticker for drugs. After

a request for clarification by DHO Puckett, Serio submitted an electronic statement stating that he

tested “white paper” (Doc. 18-2, p. 83).

The hearing was reconvened on May 24, 2019, (Doc. 18-2, pp. 81-84). Robinson raised

several objections and arguments during the hearing:

e That the item was not a sticker;

e That he wanted lab results;

e That the NIK tests cannot be used to initiate disciplinary proceedings;

e That a second investigative report was improperly written after the first one; and,

e That the paper was exposed to cleaning supplies that could have resulted in incorrect test

results (Doc. 18-2, pp. 81-88).

DHO Puckett considered and rejected Robinson’s arguments in his report:

e The item was clearly a piece of paper as is reflected in Sellers’ memorandum, Serio’s

photographs, and Serio’s amended incident report;

e The staff conducted the NIK tests following proper procedures so that lab tests were not

necessary;

e The staff are authorized and trained to conduct NIK test kits for suspected drugs and

followed standard operating procedures by testing the suspected drugs;

e The DHO can return an incident report to staff for remnvestigation; and,

e No evidence was presented that the cleaning supplies could have affected testing (/d.).

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He ultimately found Robinson guilty as charged and sanctioned him to 41 days of lost good time

credit (Id.).

Robinson filed a Regional Administrative Remedy Appeal, which was denied (Doc. 1, pp.

12-15). He then filed a Central Office Administrative Remedy Appeal raising only one issue: that

the NIK test must be confirmed by an approved analytical laboratory test (Doc. 1, pp. 16-17). The

Central Appeal was also denied (Doc. 1, p. 18).

Discussion

Robinson argues for habeas relief pursuant to 28 U.S.C. §2241. He contends that the NIK

test is presumptive and does not satisfy the “some evidence” standard used by the DHO, and that

the BOP failed to follow the manufacturer test requirement that all test results be confirmed by

analytical laboratory testing (Doc. 1).

BOP inmates can challenge the loss of good conduct credit through a petition for habeas

relief pursuant to 28 U.S.C. §2241. Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir. 1983). While

inmates retain due process rights in connection with prison disciplinary proceedings, such

proceedings “are not part of a criminal prosecution, and the full panoply of rights due a defendant

in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Rather, the

following due process requirements apply to such proceedings: (1) receipt of written notice of the

charges in advance of the hearing; (2) an opportunity to be heard before an impartial decision

maker; (3) the right to call witnesses and present evidence where the same will not be unduly

hazardous to safety or correctional goals; and, (4) a written statement as to the evidence relied on

and the reason for the decision. Wolff, 418 U.S. at 564-66; Henderson v. U.S. Parole Commission,

13 F.3d 1073, 1077 (7th Cir. 1994).

The findings of the disciplinary hearing officer must be supported by “some evidence in

the record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985); see also Black v. Lane, 22 F.3d

1395, 1402 (7th Cir. 1994). The Court does not reweigh the evidence or determine credibility.

Meeks v. McBride, 81 F.3d 717, 720 (7th Cir. 1996). Nor does the Court “assess the comparative

weight of evidence underlying the disciplinary board’s decision. Webb v. Anderson, 224 F.3d 649,

652 (7th Cir. 2000). The “relevant question is whether there is any evidence in the record that

could support the conclusion reached by the disciplinary board.” Id. (quoting Hill, 472 U.S. at

455-56 (emphasis in original)). As such, the Court can overturn the decision “only if no reasonable

adjudicator could have found [petitioner] guilty of the offense on the basis of the evidence

presented.” Henderson, 13 F.3d at 1077.

Field testing or identification may satisfy the “some evidence” standard in the prison

disciplinary context. See Ellison v. Zatecky, 820 F.3d 271, 275 (7th Cir. 2016) (a guard’s lay

identification of a substance might be sufficient in a prison-discipline context depending on the

guard’s training and experience). And Robinson does not identify specific reliability or execution

problems with the NIK tests performed by Serio. He simply contends that the tests were only

presumptive and necessitated analytical laboratory results. However, as DHO Puckett noted, the

staff, including Serio, are authorized and trained to conduct NIK testing for suspected drugs, and

in this case, followed standard operating procedures. See BOP PS 6060.08, Urine Surveillance

and Narcotic Identification. Given that there was “some evidence” supporting the DHO’s findings,

Robinson had no due process right to additional testing beyond the NIK tests.

Conclusion

For the foregoing reasons, Robinson’s Petition for Habeas Relief under 28 U.S.C. §2241

(Doc. 1) is DENIED. This case is DISMISSED with prejudice. The Clerk is DIRECTED to

enter judgment accordingly and to close the case.

If Robinson wishes to appeal the dismissal of this action, his notice of appeal must be filed

with this Court within 30 days after the entry of the judgment. Fed. R. App. P. 4(a)(1)(A). A proper

and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 60-day

appeal deadline. Fed. R. App. P. 4(a)(4). A Rule 59(e) motion must be filed no more than twenty-

eight (28) days after the entry of the judgment, and this 28-day deadline cannot be extended. Other

motions, including a Rule 60 motion for relief from a final judgment, do not toll the deadline for

an appeal.

A motion for leave to appeal in forma pauperis (“IFP”) must set forth the issues Petitioner

plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If Robinson does choose to appeal and

is allowed to proceed IFP, he will be liable for a portion of the $505.00 appellate filing fee (the

amount to be determined based on his prison trust fund account records for the past six months)

irrespective of the outcome of the appeal. See Fed. R. App. P. 3(e); 28 U.S.C.

§1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d

857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

IT IS SO ORDERED.

DATED: November 29, 2022 UW

STACIM.YANDLE ——™

United States District Judge

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