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Thomas v. Blackmon

United States District Court, S.D. Mississippi, Northern Division

January 31, 2019

ALVIN M. THOMAS PETITIONER
v.
B. E. BLACKMON RESPONDENT

          REPORT AND RECOMMENDATION

          F. KEITH BALL UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on the petition for a writ of habeas corpus filed by Alvin M. Thomas pursuant to 28 U.S.C. § 2241 and his Motion for Summary Judgment [20]. The Respondent has filed responses to both. [14], [22]. Having considered the filings, the undersigned recommends that the motion and petition be denied.

         I. Background

         Thomas is a federal inmate sentenced by the United States District Court for the District of the Virgin Islands to an 85-month term of imprisonment on two counts of Conspiracy to Interfere with Commerce by Robbery and one count of Conspiracy to Possess a Firearm in Furtherance of a Crime of Violence. [14-2] at 2. Although Thomas was incarcerated at FCC Yazoo City-Low when he filed this action, he is presently held at the Federal Detention Center at Miami, Florida. [1], [23]. His current projected release date is June 21, 2020. [14-2] at 2.

         In his petition, Thomas challenges a disciplinary proceeding in which he was found guilty of refusing to give a urine sample, in violation of the Bureau of Prisons (“BOP”) Disciplinary Code 110, and his resulting loss of 41 days of good time credit.

         On August 9, 2015, Officer M. Gower completed an incident report charging Thomas with failing to provide a urine sample upon request. [14-6] at 2. In the report, Officer Gower states that on August 9, 2015, “Thomas was called to the compound office to provide a random urine sample.” Id. Gower's report documents that “Thomas was allowed to drink one cup of water once he came to the compound office[, ] [and] was informed that he had 2 hours to provide a sample.” Id.[1] The report records Thomas's “beginning time” for the urine sample as 6:03 a.m. and states that at 8:04 a.m., Thomas “still hadn't provided a sample.” Id.

         That same morning, Officer G. Stallion investigated the charge, delivered to Thomas a copy of the incident report, and advised him of his rights. Id. at 4. In response to the charge, Thomas stated, “I did not drink any water.” Id. Officer Stallion referred the matter to the Unit Disciplinary Committee (“UDC”). Id.

         On August 11, 2015, the UDC held a hearing, but Thomas refused to appear. Id. at 3-4, see [14-7] at 2 (Waiver of Appearance). The UDC referred the charge to a Discipline Hearing Officer (“DHO”) for further hearing, recommending “any sanctions deemed necessary by the [DHO].” Id. at 3. After a DHO hearing, Thomas was sanctioned with the loss of 41 days of good time credit and other privileges, not at issue here. [14-10] at 3.

         Thomas pursued an administrative appeal, and on November 5, 2015, the matter was remanded for further disposition. [14-5] at 2. The reviewing officer found that the UDC failed to have Thomas complete two forms, the Notice of Discipline Hearing Before the DHO form and the Inmate Rights at Discipline Hearing form. Id.; see [14-8] at 2, [14-9] at 2. The reviewing officer directed that on remand the appropriate forms should be completed, a rehearing should be conducted, and the inmate should be informed of any finding and its basis. Id.

         On November 10, 2015, the UDC held a rehearing on the incident report. [14-4] at 3. Thomas was read his rights, the two forms were completed and signed by Thomas, and he pleaded not guilty. Id.; see [14-11] at 2, [14-12] at 2. In his defense, Thomas stated that he “was not provided any water” and that he had tried to provide a urine sample during the last ten minutes of the two-hour waiting period. [14-4] at 3. In his Notice of Discipline Hearing Before the DHO form, Thomas elected not to have a staff representative present at the DHO hearing but indicated that he wanted to call Officer Gower as a witness to testify “that he tried to use it the last 10 mins. of the 2 hrs.” [14-12] at 2.

         On November 24, 2015, DHO C. Grider held a rehearing on the charge. [14-13] at 2. DHO Grider acknowledged that Thomas “requested Officer M. Gower (Reporting Employee) to testify that inmate Thomas tried to provide a urine sample the last 10 minutes of the 2 hour limit.” Id. DHO Grider explained that Officer Gower “was not called during the DHO hearing due to his testimony being adequately provided and described in . . . the incident report.” Id.

         After the hearing, DHO Grider issued a Discipline Hearing Officer Report (the “November 24 Report”). In the November 24 Report, the DHO considered Thomas's statement and defense. Specifically, the DHO recited Thomas's statement as follows:

I admit I did not supply a urine sample. I tried to provide a sample the last 10 minutes of the two hours but could not provide one. The Lieutenant asked if I took medication to prevent me from providing a sample and I told him I did not take medication. ...

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