# Vann Lamont Bailey v. Kauffman

> District Court, M.D. Pennsylvania · December 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10411074

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411074

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411074. Public record. Not legal advice.