Vann Lamont Bailey v. Kauffman

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VANN L. BAILEY, : Civil No. 1:19-CV-1458

:

Plaintiff, :

:

v. :

:

KEVIN KAUFFMAN, et al., : (Magistrate Judge Carlson)

:

Defendants. :

MEMORANDUM OPINION

I. Factual Background

This pro se prisoner lawsuit stems from disciplinary proceedings involving

the plaintiff, Vann Bailey. Bailey was found guilty of violating prison contraband

rules after an incoming card mailed to him tested positive during a Nark II test for

infusion with a controlled substance, suboxone. In his amended complaint, Bailey

acknowledges this positive Nark II drug test, and concedes that the test has an 85%

accuracy rate. He nonetheless decries the prison’s failure to preserve the card, or

have the Pennsylvania State Police conduct a second test of that card. Alleging that

these matters raised concerns of a constitutional dimension, Bailey asserts that these

disciplinary proceedings were fundamentally flawed in ways which violated the

First, Eighth and Fourteenth Amendments.

We disagree. Given the concessions made by Bailey in his second amended

complaint, which acknowledges both the positive Nark II test result and the test’s

85% accuracy rate, we are constrained to join that rising tide of caselaw which has

found that such drug tests satisfy the burden of proof in a prison disciplinary setting,

where due process simply requires the presence of some evidence to support the

disciplinary determination. Therefore, as discussed below, we will grant this motion

to dismiss.

This case comes before us on the second amended complaint by pro se

Plaintiff Vann Bailey, an inmate at the State Correctional Institution at Huntingdon

(“SCI-Huntingdon”). Bailey’s complaint seeks compensatory damages1 pursuant to

42 U.S.C. § 1983 for alleged violations of his rights under the First, Eighth, and

Fourteenth Amendments of the United States Constitution.

We consider as true the following factual background presented by Plaintiff

Bailey in his complaint. The controversy begins with a Valentine’s Day card sent to

Bailey from his mother. Bailey alleges that, on March 25, 2018, Defendant Yohn, a

Correctional Officer at SCI-Huntingdon, searched his personal property and found

the Valentine’s Day card, which Yohn noted had an inked red line inside. (Doc. 49,

at 5). Yohn ordered the card be tested for narcotics using a Fluorescence Polarization

Immunoassay (“Nark II test”), and the test result turned up positive for suboxone.

(Id., at 5-6).

1Bailey’s second amended complaint also seeks preliminary injunctive relief. The

Court denied Bailey’s motion for preliminary injunction in a separate order on

August 2, 2021. (Doc. 57). Thus, we do not address his request in this memorandum.

After the positive test, Defendant Lofferty, another Correctional Officer at

SCI-Huntingdon, issued a misconduct report charging Bailey with possession or use

of a dangerous or controlled substance and possession of contraband. (Doc. 49, at

6). A disciplinary hearing was held on March 17, 2018, with Defendant Ellenberger

serving as the hearing examiner. (Id.) At the initial hearing, Bailey requested

additional time to prepare evidence, including requesting to have the Valentine’s

Day card re-tested. (Id.) Bailey signed a waiver of the first hearing, and a follow-up

disciplinary hearing was held on March 29, 2020. (Id., at 7).2 Bailey again requested

that the Valentine’s Day card be re-tested, indicating that other inmates had been

permitted to take a second test. (Id.) At the hearing, Bailey alleges Ellenberger based

his finding of guilt on a photocopy of the Nark II report, not the actual testing results.

(Id.) Ellenberger also relied on the written report filed by Lofferty and discounted

Bailey’s claims that the card was not inked with a red line of suboxone. (Id.) His

request to have the card re-tested was denied, and Bailey was found guilty of all

charges cited in the misconduct report. (Id.)

Bailey was sentenced to 45 days in segregation confinement in SCI-

Huntingdon’s Restricted Housing Unit (“RHU”) and lost visitation rights with his

“Elderly Sick Mother.” (Doc. 49, at 8). In the months following the hearings, Bailey

2 The purported date of this second hearing falls well after Bailey commenced this

lawsuit. Bailey does not explain this anomaly, which may well be a typographical

error, but we accept that date for purposes of consideration of the instant motion.

continued his quest to have the Valentine’s Day card re-tested. He argued that,

because the Nark II test is only 85% accurate, the results are not usable unless a

second test is provided to confirm the results, or the results are confirmed by an

approved analytical laboratory. (Id., at 10-11). He also maintained that three

similarly situated inmates had been exonerated under similar circumstances after

receiving permission to have a second Nark II test. (Id.)

He first sent written requests to Defendant Kauffman, Superintendent of SCI-

Huntingdon, Defendant Brumbaugh, Deputy Superintendent for Facilities

Management at SCI-Huntingdon, and Defendant Walters, Deputy Superintendent

for Centralized Services at SCI-Huntingdon. (Id.) He then sent a DC-135A “Inmates

Request to Staff Member” form to Brumbaugh and Kauffman requesting that they

intervene in the finding of guilt and allow Bailey to pay for the cost of a re-test of

the Nark II. (Id., at 8-9). Finally, he filed an appeal to the Program Review

Committee (“PRC”) requesting their intervention. Walters and Brumbaugh were

active committee members on the PRC board at the time. (Id., at 9) Bailey’s sentence

was upheld by the PRC, despite their alleged awareness of the inaccuracies of the

Nark II test and the fact that other inmates were afforded a second test. (Id.)

Following the PRC denial, Bailey endeavored to pursue the instant cause of

action. Bailey filed his initial pro se complaint on June 10, 2019 in the Court of

Common Pleas of Huntingdon County. (Doc. 1-2). The case was removed to federal

court on August 21, 2019, (Doc. 1), and the parties subsequently consented to

magistrate judge jurisdiction on October 29, 2019. (Doc. 10). After severance of

several parties named in the initial complaint, (Doc. 17), Bailey filed his first

amended complaint on September 8, 2020. (Doc. 25). The defendants filed a motion

to dismiss his amended complaint, (Doc. 26), which was denied as moot after Bailey

was granted leave to file a second amended complaint. (Doc. 48). Bailey’s second

amended complaint, the operative pleading in this case, was filed on July 2, 2021,

(Doc. 49), to which the defendants filed a motion to dismiss for failure to state a

claim on July 27, 2021. (Doc. 53). This motion has been fully briefed and is ripe for

resolution. (Docs. 49, 54, 60).

After consideration, we agree with the defendants that the plaintiff has not

alleged sufficient facts to state a claim for relief with respect to his First Amendment,

Eighth Amendment, and Fourteenth Amendment claims. Accordingly, for the

following reasons, the motion to dismiss will be granted.

II. Discussion

A. Motion to Dismiss – Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for

the legal sufficiency of a complaint, the United States Court of Appeals for the Third

Circuit has aptly noted the evolving standards governing pleading practice in federal

court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)], and culminating recently with the Supreme Court’s decision in

Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards

have seemingly shifted from simple notice pleading to a more

heightened form of pleading, requiring a plaintiff to plead more than

the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief

may be granted, the court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right

to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon

which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,

556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id. at 679.

According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather,

in conducting a review of the adequacy of a complaint, the Supreme Court has

advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id. at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions; it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to

state a claim, district courts should conduct a two-part analysis. First,

the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. Second, a District Court

must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for relief.” In

other words, a complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to “show” such an entitlement

with its facts.

Fowler, 578 F.3d at 210-11.

As the Court of Appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, [ ] “stops short of the

line between possibility and plausibility of ‘entitlement of relief.’”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,

132 S. Ct. 1861 (2012).

In practice, consideration of the legal sufficiency of a complaint entails a

three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead

to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should

identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id. at 1950. Finally, “where

there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129

S. Ct. at 1950).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002)

(holding that “[a]lthough a district court may not consider matters extraneous to the

pleadings, a document integral to or explicitly relied upon in the complaint may be

considered without converting the motion to dismiss in one for summary

judgment”). However, the court may not rely on other parts of the record in

determining a motion to dismiss, or when determining whether a proposed amended

complaint is futile because it fails to state a claim upon which relief may be granted.

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

B. The Motion to Dismiss Plaintiff’s Second Amended Complaint Should Be

Granted.

In his second amended complaint, Bailey asserts a cause of action under 42

U.S.C. § 1983, alleging violations of his First, Eighth, and Fourteenth Amendment

rights by the defendants. His complaint alleges that the defendants violated his First

Amendment right to freedom of association by depriving him of visitation rights

with his mother. He further claims violations of his Eight Amendment right against

cruel and unusual punishment for being confined in disciplinary segregation after he

was found guilty at the disciplinary hearing. Finally, he alleges violations of his

Fourteenth Amendment right to equal protection and due process based on the way

his disciplinary proceedings were handled.

1. First Amendment Claim

Bailey alleges that the defendants deprived him of his right to engage in

Freedom of Association without a compelling justification and timely notice when,

following the disciplinary hearing, he lost his visitation rights with his mother. It is

true, as Bailey asserts, that the Constitution protects “certain kinds of highly personal

relationships,” including among members of immediate family. Overton v. Bazzetta,

539 U.S. 126, 131 (2003) (quoting Roberts v. United States Jaycees, 468 U.S. 609,

618 (1984)). However, it is also axiomatic that inmates do not retain rights that are

found to be incompatible with their incarceration, and “freedom of association is

among the rights least compatible with incarceration.” Id. at 131. Accordingly,

“some curtailment of that freedom must be expected in the prison context.” Id. Thus,

the Supreme Court has held that, so long as a regulation limiting prison visitation is

rationally related to a legitimate penological interest, it is not violative of the First

Amendment right that survives incarceration. Id. at 132 (citing Turner v. Safley, 482

U.S. 78, 89 (1987)). Under this standard, the Third Circuit has held that “the prison is

acting on a legitimate penological interest when it restricts persons found with

contraband, especially drugs, to non-contact visitation,” because “the restriction

reduces the chances that contraband will be passed from outside the prison.” Henry

v. Dep't of Corr., 131 F. App'x 847, 851 (3d Cir. 2005) (citing Overton, 539 U.S. at

132); Turner v. Safley, 482 U.S. 78, 89–91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

Here, to survive the motion to dismiss, Bailey must assert that the regulation

restricting his visitation rights, DC-ADM 812 § 1.N.4, (Doc. 54-1, at 14), or the

enforcement of the regulation as applied to him, does not serve any legitimate

penological interest. For example, the Third Circuit in Cordero v. Warren, 612 F.

App’x 650, 654 (3d Cir. 2015), found the plaintiff had sufficiently stated a First

Amendment violation of freedom of association when he alleged the defendants

violated applicable regulations by failing to reinstate visitation privileges with his

brother in retaliation for his grievances. Id.

Here, the applicable prison visitation policy, states:

In accordance with Department policy DC-ADM 801, any inmate who

is dealing, using (including positive drug test results or refusal to submit

to drug testing), or possessing illegal or non-prescribed drugs and/or

drug paraphernalia, will be prohibited from having contact visits for the

period specified below. This period and the special security precaution

will commence immediately upon the issuance of the misconduct and

continue, pending the outcome of the misconduct hearing. Upon a

finding of guilt, contact visits shall be prohibited for the periods

outlined below, and the inmate shall be referred to the Drug and

Alcohol Treatment Department for an assessment of treatment needs.

If the inmate is found not guilty of the misconduct,

then contact visits shall be reinstated immediately.

1st offense - 180 days

2nd offense - one year

3rd offense - indefinite ban

(Doc. 54-1, at 14).

It appears Bailey is asserting not that the regulation itself is unconstitutional,

but that the restriction was applied to him unconstitutionally, as his visitation rights

were “terminated based on false, fabricated and tainted misconduct report . . . and

flawed evidence,” which denied him an opportunity to defend his innocence. (Doc.

60, at 6). However, unlike Cordero, Bailey has not put forth any facts alleging that

defendants violated the prison policy which dictates that visitation rights should be

restricted. It appears from Bailey’s complaint that prison officials followed the

visitation policy; Defendant Yohn ordered a Nark II test on the Valentine’s Day card

and alleged that the card tested positive for the drug, suboxone (Doc. 49, at 5-6);

Defendant Lofferty filed and issued a Misconduct Report alleging possession of a

controlled substance (Doc. 49, at 6); a disciplinary hearing was held, and the plaintiff

was found guilty (Doc. 49, at 7); and Bailey lost visitation rights with his mother.

(Doc. 49, at 8). Bailey does not allege that defendants deprived him of his visitation

for longer than the prescribed period, or allege any facts showing that the drug test

was fabricated or tainted. His argument that the accuracy of the test deployed is not

100% is not sufficient to state a claim for violation of his First Amendment rights to

visitation, given the “legitimate penological interest” served by the policy restricting

visitation after a positive drug test.

Because Bailey has stated only conclusory allegations regarding the flawed

nature of the disciplinary process and enforcement of the visitation policy, he has

failed to state a claim for a violation of his First Amendment right to freedom of

association. Accordingly, the motion to dismiss will be granted as to the plaintiff’s

First Amendment claim.

2. Eight Amendment Claim

Bailey also asserts a claim for violation of his Eight Amendment right against

cruel and unusual punishment. He alleges that the defendants engaged in

unnecessary and wanton infliction of pain by confining him in disciplinary

segregation following his finding of guilt at his disciplinary hearing. Bailey faces an

exacting burden in advancing this Eighth Amendment claim against these defendants

in their individual capacities. To sustain such a claim, he must plead facts that:

[M]eet two requirements: (1) “the deprivation alleged must be

objectively, sufficiently serious;” and (2) the “prison official must have

a sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825,

834, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and

citations omitted). In prison condition cases, “that state of mind is one

of ‘deliberate indifference’ to inmate health or safety.” Id. “Deliberate

indifference” is a subjective standard under Farmer—the prison

official-defendant must actually have known or been aware of the

excessive risk to inmate safety.

Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).

In Overton, the Supreme Court found that withdrawing visitation privileges

for a limited period in order to effect prison discipline is not a dramatic departure

from accepted standards for confinement conditions, “[n]or does [it] create

inhumane prison conditions, deprive inmates of basic necessities or fail to protect

their health or safety, or involve the infliction of pain or injury or deliberate

indifference to their risk.” Overton, 539 U.S. at 137. Here, Bailey was found guilty

of possession of a controlled substance and possession of contraband in violation of

prison policy after a disciplinary hearing. As a consequence of his finding of guilt,

he was sentenced to 45 days in segregation confinement. This sort of prison

discipline is not a dramatic departure from accepted standard for confinement

conditions and was pursuant to prison policy. Accordingly, Bailey’s claim of cruel

and unusual punishment in violation of the Eight Amendment fails as a matter of

law.

3. Fourteenth Amendment Claims

Finally, Bailey alleges the defendants violated his Fourteenth Amendment

rights under two theories. First, he alleges violations of his right to equal protection

under a “class of one” claim, averring that, in denying him the opportunity to re-test

the Valentine’s card, the defendants treated him differently than other similarly

situated inmates without compelling justification. He also claims the defendants

violated his right of procedural due process by denying him the minimum procedural

rights afforded to him within the prison rules and regulations including the

opportunity to call witnesses and present documentary evidence.

The Equal Protection Clause of the Fourteenth Amendment directs that no

state shall “deny to any person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1. Bailey’s equal protection claim in this case

apparently advances what is called a “class of one” claim, an assertion that the

plaintiff has been treated differently than all others in some invidious fashion. In

order to sustain a “class of one” equal protection claim “a plaintiff must allege that

(1) the defendant treated him differently from others similarly situated; (2) the

defendant did so intentionally; and (3) there was no rational basis for the difference

in treatment. Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006). So, “to state

a claim for ‘class of one’ equal protection, a plaintiff must at a minimum allege that

he was intentionally treated differently from others similarly situated by the

defendant and that there was no rational basis for such treatment.” Phillips v. Cty. of

Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).

Bailey has failed to meet the minimum requirements for stating a claim for

violations of equal protection. First, Bailey has failed to state any factual connection

between the named defendants and the other inmates he alleged were allowed a

second test beyond stating they were all “aware” that numerous “other similarly

situated” inmates had been exonerated after receiving permission to have a second

test. (Doc. 49, at 12). Thus, he has not alleged that any defendant personally treated

him differently than such similarly situated inmates. Similarly, Bailey has not

alleged that the inmates whose affidavits he includes with his second amended

complaint were similarly situated. His main argument is that the Nark II test used to

test the Valentine’s day card is not 100% accurate and should be confirmed by a lab

before being used as evidence. However, the three inmates whose affidavits

indicated they were permitted to retest were subjected to a urine test, not a Nark II

test. (Doc. 49-1, at 18-20). On this score, we do not find that Bailey has alleged they

were similarly situated, and Bailey has failed to sufficiently state a claim for

violations of his right to equal protection.

Furthermore, Bailey simply has not shown that there was no rational basis for

the allegedly disparate treatment he received, nor can he. That disciplinary treatment

was the result of a Nark II drug test of his incoming mail, which disclosed the

presence of suboxone. Bailey concedes that his test has an 85% accuracy rate, a

degree of accuracy which strongly supports a rational inference that Bailey

participated in a prison infraction. Since the actions taken in Bailey’s case are

grounded on this rational inference, the degree of irrationality that is necessary for a

class of one equal protection claim is lacking here.

As to his procedural due process claim, Bailey faces an exacting burden of

proof. It is well established that “[p]rison disciplinary 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). The

Supreme Court has, however, recognized a set of minimum procedural protections

that must apply to prison disciplinary proceedings, including the right to: (1)

advance written notice of the disciplinary charges; (2) an opportunity, when

consistent with institutional safety or correctional goals, to call witnesses and present

documentary evidence as part of a defense; and (3) a written statement by the

factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at

563-67.

Due process also requires that a prison disciplinary tribunal be sufficiently

impartial. Meyers v Alldredge, 492 F.2d 296, 305-07 (3d Cir. 1974). The

requirement of an impartial tribunal “prohibits only those officials who have a direct

personal or otherwise substantial involvement, such as major participation in a

judgmental or decision-making role, in the circumstances underlying the charge

from sitting on the disciplinary committee.” Meyers, 492 F.2d at 306. In the past,

inmates have often invited courts find violations of this due process right based upon

general assertions of staff bias. Yet, such requests, while frequently made, have

rarely been embraced by the courts. Instead, the courts have held that a “generalized

critique” of staff impartiality is insufficient to demonstrate the degree of bias

necessary to prove a due process violation. Lasko v. Holt, 334 F. App’x 474 (3d Cir.

2009). Furthermore, in the absence of a showing that the hearing officer was

“personally or substantially involved in the circumstances underlying [the

investigation of the] charge,” Greer v. Hogston, 288 F. App'x. 797, 799 (3d Cir.

2008), courts generally decline to sustain due process challenges to disciplinary

decisions on claims of staff bias. See Redding v. Holt, 252 F. App'x 488 (3d Cir.

2007).

Most importantly, with respect to the instant claim, a prison disciplinary

determination comports with due process if it is based on “some

evidence.” See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56

(1985) (“[T]he relevant question is whether there is any evidence in the record that

could support the conclusion reached by the disciplinary board”). This standard is

minimal and does not require examination of the entire record, an independent

assessment of the credibility of witnesses, or even a weighing of the

evidence. See id. at 455; Thompson v. Owens, 889 F.2d 500, 501-02 (3d Cir. 1989).

Therefore, it is well settled that disciplinary decisions are entitled to considerable

deference by a reviewing court and must be upheld whenever there is “some

evidence” to support the decision. Hill, 472 U.S. at 457; Elkin v. Fauver, 969 F.2d

48 (3d Cir. 1992); Thompson v. Owens, 889 F.2d 500 (3d Cir. 1989); Franco v.

Kelly, 854 F.2d 584, 588 (2d Cir. 1988); Freeman v. Rideout, 808 F.2d 949, 955 (2d

Cir. 1986). Thus, in this setting the “function [of the court] is to determine whether

there is some evidence which supports the decision of the [hearing

officer].” Freeman, 808 F.2d at 954. As the Supreme Court has observed, the “some

evidence” standard is a highly deferential standard of review and:

Ascertaining whether this standard is satisfied does not require

examination of the entire record, independent assessment of the

credibility of witnesses, or weighing of the evidence. Instead, the

relevant question is whether there is any evidence in the record that

could support the conclusion reached by the disciplinary board.

Hill, 472 U.S. at 455-456.

Provided that a prisoner is afforded these due process protections during the

disciplinary hearing process, it is well settled that a claim that a misconduct report

was false, standing alone, does not state a valid cause of action. As the Third Circuit

has aptly observed: “[F]iling false disciplinary charges does not itself violate

a prisoner's constitutional rights, so long as procedural due process protections were

provided.” Richardson v. Sherrer, 344 F. App’x 755, 757-758 (3d Cir. 2007)

(citing Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir. 1986); Hanrahan v. Lane,

747 F.2d 1137, 1140 (7th Cir. 1984)); See also Booth v. Pence, 141 F. App’x 66 (3d

Cir. 2005); Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002).

In our view, Bailey’s second amended complaint demonstrates that the

required minimum procedural protections were afforded to him and, indeed, “some

evidence” existed to support a guilty verdict at his disciplinary hearing. In his

complaint, Bailey concedes that the corrections officers filed a Misconduct Report

after conducting a Nark II test on the Valentine’s Day card and reporting that it tested

positive for the drug, suboxone. (Doc. 49, at 5-6). He further acknowledges that the

Nark II is a “commonly used test” that is 85% accurate, (Id., at 10), and that the

hearing examiner based his finding of guilt on a copy of the Nark II report/testing

results indicating positive for the presence of suboxone. (Id., at 7). We find that this

demonstrates there was evidence in the record to support the finding reached by the

hearing examiner and affirmed by the disciplinary board.

Bailey does not allege that prison officials failed to follow procedures or that

no test was conducted which could be used to support the hearing examiner’s

finding. Instead, he argues that 85% accuracy is not sufficient, and the defendants’

refusal to allow him to re-test the card denied him the opportunity to present

evidence in his defense as required by Wolff. 418 U.S. at 556. At the outset, we note

that this argument essentially asks us to weigh the credibility of the evidence relied

upon by the hearing examiner, which we are not permitted to do under Hill. 472 U.S.

at 455-456. Rather, our due process inquiry is minimal, requiring only that some

evidence existed to support the hearing examiner’s finding.

We are not alone in this view. Indeed, a growing body of caselaw supports the

position that in a prison disciplinary setting a positive drug test of the type obtained

here satisfies the requirements of due process. On this score, the Third Circuit has

held that a positive drug test in other contexts constitutes “some evidence” to satisfy

the due process standard. Thompson v. Owens, 889 F.2d 500, 502 (3d Cir. 1989)

(“Positive urinalysis results based on samples that officials claim to be appellant's

constitute some evidence of appellant's drug use”). Further, other courts have

specifically held a positive Nark II test to be sufficient evidence to support a finding

by a prison disciplinary board. See Clark v. Butts, No. CIV. 18-2248-SEB-MPB,

2019 WL 2436974, at *2 (S.D. Ind. June 11, 2019) (“Although it is possible that a

different test would have yielded a different result, due process did not require the

prison staff to subject the substance to additional testing, even at [plaintiff’s]

request].”); see also Huntington v. Warden, No. 219CV00192JMSMJD, 2020 WL

1027978, at *1 (S.D. Ind. Mar. 3, 2020).Moreover:

[N]umerous courts have held that a prisoner does not have a

constitutional right to an additional drug test to verify the results of an

initial positive test. See, e.g., Henson v. U.S. Bureau of Prisons, 213

F.3d 897 (5th Cir. 2000) (prisoner did not have a due process right to a

second test after first urinalysis test came back negative); Harrison v.

Dahm, 911 F.2d 37, 41 (8th Cir. 1990) (due process does not require

prison officials to provide a drug re-test or to provide an inmate with

the documentary evidence of the results); Spence v. Farrier, 807 F.2d

753, 756 (8th Cir. 1986) (although inmates are permitted to present a

defense, “[s]tates need not implement all possible procedural

safeguards against erroneous deprivation of liberty when utilizing

results of scientific testing devices in accusatory proceedings”); Cato v.

Ives, No. CIV. 12-193-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. CIV. 12-1905 RMB,

2012 WL 5880343, at *6 (D.N.J. Nov. 20, 2012) (no due process right

to obtain a second, independent lab test.

White v. Stansil, No. 215CV0242EFBPTEMP, 2016 WL 4009954, at *6 (E.D. Cal.

July 25, 2016); see also Gonzales v. Warden, S. Ohio Corr. Facility, No. 1:17-CV-

70, 2017 WL 1048129, at *3 (S.D. Ohio Feb. 28, 2017), report and recommendation

adopted sub nom. Gonzales v. Warden, S. Ohio Corr. Inst., No. 1:17CV070, 2017

WL 1049564 (S.D. Ohio Mar. 17, 2017) (and numerous cases cited therein).3

Bailey has not alleged that any other step of the procedural process was

lacking. He received notice and a hearing, was provided additional time to obtain

evidence to present in his defense, and an impartial hearing examiner found him

guilty based on some evidence in the record. Accordingly, as to Bailey’s claim for

violations of his procedural due process right under the Fourteenth Amendment, the

3 The fact that Bailey was not constitutionally entitled to a second drug test is also

fatal to his contention that prison officials have violated his rights by failing to

preserve the card for the past three years in order to allow for re-testing.

defendants’ motion to dismiss should be granted.

III. Conclusion

Accordingly, for the foregoing reasons, the defendants’ motion to dismiss

(Doc. 17), will be GRANTED.

An appropriate order follows.

Submitted this 9th day of December 2021.

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge