Jenkins v. United States

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

ANTWON D. JENKINS,

Plaintiff,

v. Case No. 1:20-cv-1815-CLM-SGC

UNITED STATES OF

AMERICA,

Defendant.

MEMORANDUM OPINION

Antwon D. Jenkins is a federal inmate who sues the United States under

the Federal Tort Claims Act (“FTCA”). Jenkins alleges that Bureau of Prison

(“BOP”) officials negligently or intentionally disregarded and failed to follow

NIK drug test instructions when they tested a brown piece of paper soaked in

some substance in Jenkins’ possession and interpreted the result to indicate

the presence of amphetamines. Jenkins was then sanctioned with disciplinary

segregation in the Special Housing Unit (“SHU”).

The court held a bench trial on Jenkins’ claims of malicious prosecution

and negligence. The court then had the parties file post-trial briefs on the

evidence presented at trial. Below are the court’s findings of fact and

conclusions of law under Federal Rule of Civil Procedure 52. See Fed. R. Civ.

P. 52(a) (“In an action tried on the facts without a jury or with an advisory jury,

the court must find the facts specifically and state its conclusions of law

separately. The findings and conclusions may be stated on the record after the

close of evidence or may appear in an opinion or memorandum of decision filed

by the court.”).

For the reasons stated within, the court will DISMISS WITH

PREJUDICE Jenkins’ complaint. The court will DENY AS MOOT the

Government’s motion for judgment on partial findings (doc. 94).

FINDINGS OF FACT

Antwon Jenkins is a federal inmate who was incarcerated at FCI

Talladega in Talladega, Alabama from September 2014 to July 2023. (Doc. 98,

p. 114). On November 1, 2016, Officer Taylor Green performed a random pat

search on Jenkins. (/d., p. 115). When Jenkins emptied his pockets, he gave

> ?

Green a brown piece of paper that Jenkins said had Vaseline on it to help

Jenkins with his chapped nose and lips. Ud., pp. 115-16). Officer Green

suspected that the substance was drugs, so he asked for Jenkins’ prison ID and

told Jenkins that he would send the brown paper to the lieutenant’s office. □□□□

p. 117).

Special Investigative Services (“SIS”) Technician Wayne Harvell tested

the brown paper from Jenkins with a NIK test kit. Ud., pp. 31-382). This

Identidrug chart shows how NIK tests work:

™ IMPORTANT: Follow the Polytesting flow

IDENTIDRUG CHART Om son ares

eee _——— test to another, noting the results,

cuagg yy YY oN □□ nomen

T □□ TOF

®) ©® ® @® ® (U) G)

i ®

I Hi

eee Go fH

| | Demercl MDA Amphetamine? MoMA, bal

(K) (D) Methamphetamine Cocaine?

©

He EZEen (&)

2 Lhe AMT MDA pet Psilecybin = STF > they ve an voncn W) W) (C)

mee © © | -=.8 Bee. fre

| forme of Mercing == Herpif cw Cn) PMA ‘A (H)

> 2 a 2 Barbituretes

Methedrine Mescaline Beractyzine (R) [ne]: [nc] + [nc]

Ketamine Stop

Fo

serv snees te cng scone eaage wt et Rohyanel, valiuen® Be “mene

GEE = color shitt change | ivsssccvr" Somaketsiner (0) sence sn

Phe teste □□ as MAADUAMA, KASHISH & THE METHARUALONE ‘TALE & PENTAZOCENE PROPOXYPHENE (OARVOM") EPHEDOENE

mcluded in ths Pobtedting eviews, NOTE: The ft OTE: IF ha baa Adon develosing Ales clle draping □□

sagen satis Ht [no] Se set PBS 9D) sec bo eset fl pusucsarery

panda □□ See cake Oe PB coe PM eee. eee

PARTS 190-601 REV D111 = wih testing, creer ‘i comp Sane Si ab ne (904) 485-1836

(Trial Ex. 15, p. 1).

The instructions require the tester to start with Test A, observe the color

changes in the solution, and by process of elimination conduct other tests until

the solution suggests the presence of a tested substance. (Id., p. 2).

The NIK test kit instructions also have specific requirements for testing

liquids:

Liquid samples – NIK tests are NOT designed for use with liquid

samples. However, liquids may be tested by placing the tip of an

NIK SUBSTANCE LOADING DEVICE or a 1cm square (roughly

1/2” square) piece of paper into the liquid. Remove and allow to air

dry. Place the dry paper into the test pack and proceed with the

test as instructed. The choice of paper is critical. Unscented,

uncolored filter paper is ideal. NEVER use brown paper, hand

towels or newsprint.

(Id.) (emphasis added). Among other things, Jenkins bases his breach of duty

argument on the highlighted instruction: “NEVER use brown paper.”

That’s because Harvell tested brown paper. Harvell could not extract the

liquid substance from the brown paper. (Doc. 98, p. 90). So Harvell cut a small

piece of the brown paper that Officer Green took from Jenkins and placed it in

the solution for Test A. (Id., pp. 33, 72). The solution quickly turned orange to

brown and eventually turned black. (Id., pp. 88–89). From Harvell’s experience

of performing over 100 NIK tests, he knew that suspect material would always

turn black the longer it sat in the solution. (Id., pp. 41–42, 72–73). And because

the solution first turned orange and then brown, he then tested another piece

of the confiscated paper under Test U, which came next in the sequence. (Doc.

98, p. 72; Trial Ex. 15).

The solution in Test U turned a reddish-purple color, so Harvell

determined that the substance on Jenkins’ paper was presumptively positive

for amphetamines. (Doc. 98, p. 2; Trial Ex. 21). Harvell based this

determination on the Identidrug chart’s suggestion that a reddish-pink color

in Test U meant that the substance was likely amphetamine:

ih Test A result

© R ©

Cc

oe Oo ae Test U result

(Trial Ex. 15, p.1). But Harvell admits that he did not read footnote 2 of the

Identidrug chart:

Only after Test A goes from orange to brown AND Test U turns

can you presumptively identify the substance of an amphetamine-

type compound. Red in Test U alone does NOT indicate

amphetamine-type compounds.

(d.). Nor did Harvell test the brown paper under Test W, which tests for

amphetamine and methadone. (Doc. 98, p. 84; Trial Ex. 16, p. 62).

After Harvell found that Jenkins’ brown paper tested positive for

amphetamine, Jenkins was ordered to report to Lieutenant William Epps’

office. (Doc. 98, p. 118). Epps informed Jenkins that his paper tested positive

for amphetamine and provided Jenkins with an incident report. (Doc. 98, pp.

118-19; Trial Ex. 18). Jenkins responded that the paper had Vaseline on it and

that he did not possess amphetamines. (Trial Ex. 18, pp. 1, 3). But Epps found

that there was enough evidence to forward Jenkins’ incident report to a

Disciplinary Hearing Officer (“DHO”) for further review. (Doc. 98, pp. 98-99;

Trial Ex. 18, p. 3).

A disciplinary hearing was held two weeks later. (Trial Ex. 8). After the

hearing, the DHO found that Jenkins committed the prohibited act of

possessing narcotics, relying on the NIK test kit results to support his findings.

p. 3). The DHO then sanctioned Jenkins with 30 days of disciplinary

segregation in the SHU, the loss of 41 days of good time credit, and the loss of

visitation privileges for a year. (Doc. 87, p. 4).

After Jenkins filed a habeas petition under 28 U.S.C. § 2241, the BOP

expunged his disciplinary sanction for possession of narcotics and restored his

visitation rights and good time credits. (Id.). But Jenkins’ disciplinary sanction

wasn’t expunged until after his disciplinary segregation had ended. At trial,

Jenkins testified that he was subject to unsanitary conditions at the SHU that

caused him to suffer asthma attacks, develop a staph infection, and have

emotional distress. So Jenkins sues the United States under the FTCA for

negligence and malicious prosecution, alleging that prison officials didn’t

follow the NIK test kit’s instructions when testing the brown paper they

confiscated from him.

CONCLUSIONS OF LAW

The FTCA allows private individuals to sue the United States for injuries

caused by negligent or wrongful acts of a government employee “acting within

the scope of his office or employment, under circumstances where the United

States, if a private person, would be liable to the claimant in accordance with

the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

So the court will apply Alabama law to Jenkins’ claims for malicious

prosecution and negligence. See Ochran v. United States, 273 F.3d 1315, 1317

(11th Cir. 2001).

A. Malicious Prosecution

To establish malicious prosecution, a plaintiff must show: “(1) that a

prior judicial proceeding was instituted by the present defendant, (2) that in

the prior proceeding the present defendant acted without probable cause and

with malice, (3) that the prior proceeding ended in favor of the present plaintiff,

and (4) that the present plaintiff was damaged as a result of the prior

proceeding.” Delchamps, Inc. v. Bryant, 738 So. 2d 824, 831–32 (Ala. 1999).

Jenkins concedes that he hasn’t presented evidence that establishes malicious

prosecution. (Doc. 98, p. 187). The court agrees. There was no evidence

presented at trial that suggested that any BOP official acted with malice

towards Jenkins. So the court will dismiss Jenkins’ malicious prosecution

claim with prejudice.

B. Negligence

In Alabama, “[t]he necessary elements for recovery under a negligence

theory are duty, breach of that duty, proximate cause, and injury.” Rutley v.

Country Skillet Poulty Co., 549 So. 2d 82, 85 (Ala. 1989). Jenkins bears the

burden of proving each of these elements by a preponderance of the evidence.

See Johnson v. Florida, 348 F.3d 1334, 1347 (11th Cir. 2003).

1. Duty: “The existence of a duty is determined by a number of factors,

including (1) the nature of the defendant’s activity; (2) the relationship

between the parties; and (3) the type of injury or harm threatened.” Taylor v.

Smith, 892 So. 2d 887, 892 (Ala. 2004) (quotations omitted). “The key factor is

whether the injury was foreseeable by the defendant.” Id.

Jenkins asserts that Harvell had a duty to exercise reasonable care in

following the NIK test kit instructions and that Lieutenant Epps had a duty to

verify that the procedures were followed correctly. The United States doesn’t

dispute that the BOP owes a general duty of care to prisoners or that

unjustified inmate punishment is a foreseeable result of an erroneous prison

drug test. But the United States argues that Jenkins’ alleged injuries of

asthma attacks, staph infection, and emotional distress were not foreseeable

to Harvell or Epps.

The fact that a federal employee failed to follow federal regulations or

guidelines doesn’t establish that the Government is liable under the FTCA.

Zelaya v. United States, 781 F.3d 1315, 1324 (11th Cir. 2015). But federal

statutes, regulations, and guidelines “may provide the standard of care against

which the government’s conduct should be assessed.” Id.; see also Lands v.

Ward, 349 So. 3d 219, 223 (Ala. 2021) (“In a negligence action, it is possible for

a legal duty imposed by statute or regulation to inform the common-law

standard of reasonable care or to supplant it entirely.”). It is BOP policy to test

suspected contraband with a NIK test kit by following the test kit’s

instructions. (Doc. 98, p. 100–02). And the NIK training material stresses that

“[d]eviating from [the test kit’s procedures] will give an inconclusive answer or

may put the officer or observers at risk.” (Trial Ex. 16, p. 2). So the court finds

that the NIK test kit’s instructions, procedures, and protocols inform the duty

Harvell and Epps owed Jenkins.

The court also finds that it was foreseeable to Harvell and Epps that

failing to follow the NIK test kit’s protocols could injure Jenkins. As stated, the

Government concedes that unjustified inmate punishment is a foreseeable

result of an erroneous prison drug test. And “[f]oreseeability does not require

that the particular consequence should have been anticipated, but rather that

some general harm or consequence should have been anticipated.” Lands, 349

So. 3d at 226. The court thus finds that Jenkins has established that (a)

Harvell owed Jenkins a duty to exercise reasonable care in following the NIK

test kit’s instructions, and (b) that Epps owed Jenkins a duty to exercise

reasonable care in verifying that Harvell followed the NIK test kit protocols.

2. Breach of Duty: Jenkins alleges that Harvell and Epps breached the

standard of care by not following these procedures: (1) Harvell failed to follow

the Identidrug chart; (2) Harvell failed to measure the paper he used to make

sure that it was the right size for testing; (3) Harvell used brown paper to test

the liquid substance; (4) Epps moved forward with discipline without verifying

that Harvell used the proper procedures for the NIK test; and (5) BOP did not

consult an outside lab or use urinalysis testing.

a. Failure to follow Identidrug chart: Jenkins says that Harvell failed to

follow the Identidrug chart in three ways. First, Jenkins argues that Harvell

failed to correctly apply the chart’s footnote 2:

Only after Test A goes from orange to brown AND Test U turns

can you presumptively identify the substance of an amphetamine-

type compound. Red in Test U alone does NOT indicate

amphetamine-type compounds.

(Trial Ex. 15, p. 1, n.2). According to Jenkins, this footnote means that a

substance turning red following Test U does not indicate amphetamines and

instead tells the tester that the substance is not methamphetamines.

The court disagrees. The second page of the Identidrug chart states: “A

blue result in Test U confirms the presence of Methamphetamine. A reddish-

pink or negative result in Test U indicates an Amphetamine-type compound.

Only by following the proper sequence of tests from A to U is a positive result

obtained.” (Id., p. 2). Plus, the NIK test kit training materials say that if the

substance turns burgundy it is an amphetamine:

The logic to be used here is that Test A (if it shifts from Orange to

Brown) tells us that the substance is either Amphetamine or

Methamphetamine. Test U then tells us if we have Amphetamine

(primary amine/burgundy) or Methamphetamine (secondary

amine/dark blue) present. By not turning dark blue and staying

burgundy, this is considered a negative reaction for the presence

of a secondary amine (Methamphetamine) and therefore it is an

amine (Amphetamine).

(Trial Ex. 16, p. 56). So despite footnote 2’s statement, that “Red in Test U

alone does NOT indicate amphetamine-type compounds,” the court finds that

Harvell did not breach the standard of care by finding that Jenkins’ paper was

positive for amphetamines because it turned a reddish-pink color.

Second, Jenkins says that the only way for Harvell to determine whether

amphetamine was present was to use Tests I and W, and Harvell did not.

Again, the court disagrees. Test W, which does test for amphetamine and

methadone, comes into play only if Test I is the appropriate test to give after

Test A. (Trial Ex. 15, p. 1). And Test I is to be used only when the substance

immediately turns brown after Test A. (Id.). Because the paper seized from

Jenkins turned orange and then brown, Harvell was under no duty to perform

Tests I and W on the suspected substance. Instead, Test U is the correct test

to use when a substance quickly changes from orange to brown. (Id.). So the

court finds that Harvell applied the proper test to the paper seized from

Jenkins. And as explained, both the Identidrug chart itself and the NIK test

kit training materials say that a substance that goes from orange to brown

following Test A and turns reddish-pink after Test U is likely an amphetamine,

which is what Harvell found.

Third, Jenkins says that Harvell shouldn’t have performed Test U

because his paper went from orange to brown to black. But Harvell explained

at trial that in his experience, NIK test kits always eventually turn black. (Doc.

98, pp. 41–42, 72–73). The court finds Harvell’s testimony credible and thus

determines that Harvell properly performed Test U because after he performed

Test A, the suspected substance turned orange and then brown.

b. Failure to measure paper: Jenkins asserts that Harvell breached the

duty of care by not making sure that the paper he tested was the proper size

for testing. The NIK test kit instructions say to test a liquid sample on a 1 cm

square (or roughly 1/2” square) piece of paper. (Trial Ex. 15, p. 2). Harvell cut

off a size of the piece of brown paper confiscated from Jenkins to test the liquid

substance on the paper. (Doc. 98, pp. 31–33). But Harvell did not measure the

paper he used for the test and could not tell the court the exact size of the paper

he used. (Id.). Instead, Harvell could remember only that he used a small piece

of paper to conduct both Test A and Test U. (Id., pp. 33–34). Jenkins, however,

has not offered evidence that would establish the size of the paper Harvell used

for either Test A or Test U. So Jenkins hasn’t established by a preponderance

of the evidence that Harvell in fact used the wrong size of paper. Thus, the

court finds that Jenkins hasn’t shown that Harvell breached the standard of

care.

c. Use of brown paper: The NIK instructions also say that the choice in

paper is critical when testing a liquid sample and to never use brown paper,

hand towels, or newsprint. (Trial Ex. 15, p. 2). So Jenkins says that Harvell

shouldn’t have tested the brown paper with the NIK test. The court agrees with

the United States that the NIK test kit instructions related to brown paper

address different circumstances than the one Harvell faced. These instructions

tell testers to not place a piece of brown paper into a liquid substance for

testing. They do not explain what to do if the suspected substance is already

on a piece of brown paper that it cannot be extracted from. Nor did Harvell’s

training materials tell him what to do if he received soaked brown paper. (Doc.

98, pp. 90–91). So Harvell tested what he had believing that this was the best

he could do in that situation. (Id.). Under these circumstances, the court finds

that Jenkins hasn’t established by a preponderance of the evidence that

Harvell’s testing of the brown paper was a breach of duty. See Ford Motor Co.

v. Burdeshaw, 661 So. 2d 236, 238 (Ala. 1995) (“Negligence is the . . . doing of

something that a reasonably prudent person would not have done under the

same or similar circumstances.”).

d. Failure to verify procedures: Jenkins next says that Epps breached his

duty to verify that Harvell followed the correct procedures and that there was

enough evidence to move forward with disciplining Jenkins.

For example, Jenkins asserts that Epps shouldn’t have approved moving

forward with discipline when he saw that brown paper was used in the

investigation. As explained, Jenkins hasn’t shown that Harvell failed to follow

the procedures applicable to the testing of the brown paper seized from

Jenkins. So the court finds that Jenkins hasn’t established by a preponderance

of the evidence that Epps breached the standard of care by moving forward

with Jenkins’ discipline based on Harvell’s NIK test.

e. Failure to conduct further testing: Jenkins finally says that Harvell

should’ve performed more than one NIK test. Jenkins also says that BOP

officials breached their duty to Jenkins by not submitting the brown paper for

laboratory testing or performing a urinalysis test on Jenkins.

As Jenkins points out, the NIK test training materials say that “two tests

are better than one, three better than two, etc.” (Trial Ex. 16, p. 7). But the

training materials say this in the context of explaining why using a series of

progressively discriminating test starting with Test A minimizes the chance of

false positives. (Id., pp. 6–7). And both the Identidrug chart and training

materials instruct testers to continue from test to test until a positive or

negative result is obtained. (Trial Ex. 15, p. 2; Trial Ex. 16, p. 31). They do not

instruct testers to test presumptively positive substances multiple times. So

the court finds that Harvell did not breach a duty owed Jenkins by only once

performing Tests A and U.

Nor does the court find that Harvell, Epps, or any other BOP official

breached their duty to Jenkins by not submitting the brown paper for

laboratory testing or performing a urinalysis on Jenkins. Harvell testified that

the NIK test kit is the only test kit that BOP uses on suspected drugs and that

it is not part of BOP procedure to send substances to labs for further testing.

(Doc. 98, p. 36). He also said it’s “not protocol to give” inmates a urinalysis test

after finding an unknown liquid on a piece of paper. (Id., p. 55). And Lieutenant

Epps testified that whether BOP officials follow up a NIK test with a urinalysis

test depends on the circumstances. (Id., pp. 95–96). So the court finds that

there is no NIK test kit instruction or BOP policy that specifically told Harvell

or Epps whether further testing was needed. Because Harvell and Epps had

discretion over whether to order further testing and decisions about the

discipline of inmates is the type of discretionary function that Congress

exempted from the FTCA’s waiver of sovereign immunity, the court finds that

the discretionary function exception to the FTCA bars Jenkins from bringing

a claim based on the failure to conduct laboratory or urinalysis testing. See

Shivers v. United States, 1 F.4th 924, 928–31 (11th Cir. 2021).1

—

In sum, Jenkins has failed to establish that Harvell, Epps, or any other

BOP employee breached the duty of care.

3. Proximate Cause: Even if Jenkins has shown a breach of the duty of

care, he hasn’t established by a preponderance of the evidence that this breach

of duty proximately caused his alleged injuries. Under Alabama law,

“[p]roximate cause is an act or omission that in a natural and continuous

sequence, unbroken by any new independent causes, produces the injury and

without which the injury would not have occurred.” Lemley v. Wilson, 178 So.

3d 834, 842 (Ala. 2015).

Jenkins’ alleged injury is that he was unfairly placed in disciplinary

segregation because Harvell incorrectly performed the NIK test, resulting in a

false positive for amphetamines. To support his assertion that he did not

possess amphetamines, Jenkins points to (a) his testimony that the substance

on the brown paper was Vaseline, and (b) the BOP’s decision to expunge

Jenkins’ disciplinary sanction after he filed his § 2241 petition. But the record

does not establish that interpreting the NIK test instructions the way Jenkins

does or performing the test differently would have changed the test result. For

example, Jenkins hasn’t shown that Harvell’s failure to measure the size of

paper he tested or the use of brown paper caused the substance to turn reddish-

pink. Nor has Jenkins shown that performing Tests I and W, conducting a

urinalysis, or sending the sample to an outside lab would have confirmed or

undermined the test results. As a result, the court finds that Jenkins hasn’t

met his burden to establish proximate causation.

1 The discretionary function exception doesn’t apply to the other breaches of duty that

Jenkins alleges because these alleged breaches all relate to the alleged failure to follow a

specific NIK test kit instruction. See Shivers, 1 F.4th at 931 (“[T]here is no discretion to

exercise when a federal statute, regulation, or policy specifically prescribes a course of action

for an employee to follow.” (quotations omitted)).

Because Jenkins hasn’t met his burden to establish breach of duty or

proximate cause by a preponderance of the evidence, the court will dismiss

Jenkins’ negligence claim with prejudice without addressing whether Jenkins

has established damages.

CONCLUSION

For the reasons stated within, the court will DISMISS WITH

PREJUDICE Jenkins’ complaint. The court will DENY AS MOOT the

Government’s motion for judgment on partial findings (doc. 94).

The court will enter a separate final order that carries out this ruling

and closes this case.

DONE and ORDERED on September 6, 2024.

COREY 7 MAZE :

UNITED STATES DISTRICT JUDGE

12