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Thompson v. Milusnic

United States District Court, C.D. California

February 7, 2014

TOMMIE THOMPSON, Petitioner,
v.
LOUIS MILUSNIC, Warden, Respondent.

ORDER SUMMARILY DISMISSING HABEAS ACTION

OTIS D. WRIGHT, II, District Judge.

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts - which Rule also applies to this Section 2241 petition, see Rule 1(b) - provides that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." Because it is clear from the face of the petition in this prison-discipline habeas case that the action lacks merit, the Court will dismiss the action summarily and with prejudice.

I.

BACKGROUND

Petitioner Tommie Thompson is a federal prisoner housed at Victorville, in this judicial district. In 2012 prison disciplinary proceedings based on a urine sample, he was found guilty of using marijuana. Part of his punishment was the loss of good-time credits towards completion of his sentence. Petitioner challenges the guilty finding here on the following due process grounds:

1. The "urine sample was collected by an unqualified Correctional Officer." Petitioner bases this supposed lack of qualification, however, solely on his allegation that the officer, one R. Wentz, "refused to provide Petitioner with a verbal acknowledgment of [Wentz's] certification requirements for collecting urine samples." Pet. ¶ 9(a).

2. The Incident Report inadequately describes the urine sample's chain of custody. For example, Petitioner explains, there was no evidence that the sample was secured at the correct temperature or that it was shipped for testing on the day of its collection, as (Petitioner says) is required by a Bureau of Prisons (BOP) Program Statement section. Pet. ¶ 9(b).

3. Similarly, the hearing officer's Disciplinary Hearing Officer (DHO) Report lacks evidence that the urine sample was shipped for testing on the day of collection. Pet. ¶ 9(c).

4. The BOP's failure to respond to Petitioner's final administrative appeal entitles him to relief by default. Pet. ¶ 9(d).

II.

DISCUSSION

Prison disciplinary proceedings comport with substantive due process if the resulting findings are supported by "some evidence" in the record, Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), bearing sufficient "idicia of reliability." Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The "some evidence" test is satisfied by "any evidence in the record that could support the conclusion reached by the disciplinary board, " even if "no direct evidence" exists; even if the circumstantial evidence is "meager, " Hill, 472 U.S. at 455-57; and even if the record evidence is in conflict. In re Powell, 45 Cal.3d 894, 906 (1988).

A. Claim 1: Non-Reply By Urine-Collecting Officer About Certification

Even if the Court assumed, solely for the sake of discussion, that a valid habeas challenge could lie where a prisoner's tested urine was collected by an officer who lacked a federal legal qualification for such collection, Petitioner has actually not made such a claim. He is speculating. As noted above, he specifically asserts only that R. Wentz did not answer Petitioner's challenge. That is not evidence that Wentz was in ...


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