King v. Gorczyk

• Decision Date: 28 March 2003
• Docket Number: No. 02-180.,02-180.
• Citation: 825 A.2d 16
• Parties: Mark W. KING v. John GORCZYK, Commissioner, Department of Corrections.
• Court: Vermont Supreme Court

825 A.2d 16

Mark W. KING v. John GORCZYK, Commissioner, Department of Corrections.

No. 02-180.

Supreme Court of Vermont.

March 28, 2003.

Mark W. King, Pro Se, Swanton, Plaintiff-Appellant.

William H. Sorrell, Attorney General, Montpelier, and Douglas R. Marden, Assistant Attorney General, Waterbury, for Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY, MORSE,¹ JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

¶ 1. Plaintiff Mark W. King, an inmate of the North West Correctional Facility ("NWCF") in Swanton, appeals from the superior court's denial of his cross-motion for summary judgment and grant of summary judgment in favor of defendant, commissioner of the Vermont Department of Corrections ("DOC"), dismissing plaintiff's claims contesting the propriety of the random drug test he underwent, the analysis and results of that drug test, and plaintiff's subsequent conviction for a disciplinary rule violation based on that drug test. We affirm.

¶ 2. Plaintiff is currently committed to the custody and control of the DOC based on a charge of second-degree murder. On the morning of July 11, 2000, plaintiff was selected for a random drug test and submitted a urine sample to a NWCF correctional officer for testing. An initial on-site test of plaintiff's sample indicated the presence of delta-9-tetrahydrocannabinol, the main active chemical in marijuana, otherwise known as THC. Plaintiff's urine sample was then sealed and sent to the Vermont Department of Health Laboratory (the "Lab"). The Lab received plaintiff's sample on July 12, 2000.

¶ 3. Random drug testing is governed by DOC policy 367 and described in guidelines set forth in policy directive 367.01. In accordance with policy directive 367.01, the Lab conducted two tests on plaintiff's urine sample, a screening test followed by a confirming test, both utilizing "technologies having a 90% ... reliability rating or any testing process approved by the federal courts for criminal prosecution." On July 18, 2000, the Lab performed the screening test, which confirmed the presence of THC in plaintiff's urine sample. Two days later, the Lab performed the confirmation test, which again demonstrated that plaintiff's urine sample contained THC. The Lab reported these positive test results to the DOC on July 20, 2000.

¶ 4. As a result of testing positive for THC, on August 2, 2000, plaintiff was charged with violating DOC disciplinary rule Major B# 20 ("DR").² At a disciplinary hearing held on August 8, 2000, plaintiff was convicted of violating the DR by a preponderance of the evidence. The hearing officer based plaintiff's conviction on the incident report, offender drug testing report, chain of custody log, and the request for drug analysis form. As punishment, plaintiff received "2 days lock in," which was suspended for thirty days. Plaintiff was allowed to maintain his current employment, as well as visits with his children. Plaintiff appealed his DR conviction to the disciplinary board on August 20, 2000. His appeal was denied by the disciplinary board on September 4.

¶ 5. Pursuant to V.R.C.P. 75 (review of governmental action), plaintiff filed a complaint in superior court in September 2000, alleging that his due process rights were violated by the DOC's failure to follow policy directive 367.01 because the department failed to provide plaintiff with the actual laboratory reports of his drug test and failed to address plaintiff's claims on appeal with specificity at the disciplinary board level. Plaintiff also claimed that, because the actual laboratory reports of the screening and confirmation tests were not part of the evidence relied on by the hearing officer, there was insufficient evidence to convict him of the DR. Plaintiff later filed a motion to amend his complaint, arguing that because the DOC failed to properly promulgate policy directive 367.01 pursuant to the Vermont Administrative Procedure Act ("VAPA"), 3 V.S.A. §§ 801-849, the seizure and testing of plaintiff's urine were unlawful, and the punishment imposed for his conviction was a violation of due process.

¶ 6. The DOC then moved for summary judgment, and plaintiff filed a cross-motion for summary judgment. Following a January 17, 2002 hearing on both motions, the superior court granted the DOC's motion for summary judgment and denied plaintiff's cross-motion. The court found sufficient evidence in the record to support plaintiff's DR conviction and found that the hearing officer's reliance "on the relevant Incident Report, Offender Drug Testing Report, the Chain of Custody Log, and the Request for Drug Analysis" was proper. The court also determined that the DOC had the authority to conduct random drug tests and searches; that the drug test was not unreasonable under the Fourteenth Amendment to the United States Constitution, and was valid under Chapter I, Article 11 of the Vermont Constitution; that the DOC provided specific documentation detailing the chain of custody of the urine sample; and that plaintiff failed to provide any evidence in support of his due process allegations. Plaintiff's appeal to this Court followed.

¶ 7. Our review of summary judgment is de novo. This Court applies the same standard as the trial court. Cooper v. Cooper, 173 Vt. 1, 6, 783 A.2d 430, 435 (2001). We will affirm summary judgment when the record clearly indicates there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rennie v. State, 171 Vt. 584, 584-85, 762 A.2d 1272, 1274 (2000) (mem.); V.R.C.P. 56(c). In applying this standard, we regard as true all allegations of the nonmoving party supported by admissible evidence and give the nonmoving party the benefit of all reasonable doubts and inferences. Politi v. Tyler, 170 Vt. 428, 431, 751 A.2d 788, 790 (2000). Additionally, when reviewing administrative action by the DOC under V.R.C.P. 75, we will not interfere with the DOC's determinations absent a showing that the DOC clearly and arbitrarily abused its authority. Vt. State Employees' Ass'n v. Vt. Criminal Justice Training Council, 167 Vt. 191, 195, 704 A.2d 769, 772 (1997). Finally, when reviewing a decision from an inmate disciplinary hearing, we need find only that there was "some evidence" in order to uphold a conviction. LaFaso v. Patrissi, 161 Vt. 46, 49, 633 A.2d 695, 697 (1993). The "some evidence" standard requires us to determine whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. Herring v. Gorczyk, 173 Vt. 240, 243, 789 A.2d 955, 958 (2001).

¶ 8. Plaintiff asserts three arguments on appeal, two of which challenge the procedure used by the DOC in convicting plaintiff of the DR violation based on his random drug test. First, plaintiff argues that the DOC's failure to provide plaintiff with the actual laboratory reports from his drug test at the disciplinary hearing deprived him of a due process right to present evidence in his favor. Plaintiff, who, at his DR hearing, was given a report stating that he tested positive for THC, claims that the actual laboratory reports would have provided him with exculpatory evidence because the "identification numbers of the tested samples were not the same as those ascribed to [plaintiff's] urine sample." We are unpersuaded.

¶ 9. The actual laboratory reports from plaintiff's drug test were provided to plaintiff in the superior court case. Our review of the laboratory reports indicates that the identification number discrepancy to which plaintiff refers was an insignificant, nonconfusing typographical error that would not seriously call into question the identify of the urine tested.³ The identity of a specimen used in drug testing need not be proved beyond all possibility of doubt to be admissible. State v. Ross, 130 Vt. 235, 240, 290 A.2d 38, 41 (1972). The circumstances need establish only reasonable assurance of the identity of the sample tested. Id. The DOC maintained an adequate chain of custody log, and as the superior court concluded, there is no other record evidence indicating a break in the chain of custody. The record evidence provides reasonable assurances that the urine sample which tested positive for THC was the same sample plaintiff provided to a NWCF correctional officer. Therefore, plaintiff did not demonstrate that the DOC's failure to provide him with the actual laboratory reports of his drug test at or before plaintiff's disciplinary hearing resulted in prejudice. See State v. Mott, 166 Vt. 188, 193, 692 A.2d 360, 364 (1997) (due process claims are resolved on facts before the Court and individual asserting denial of due process must show prejudice from asserted denial). As noted by the court below:

Where, as here, provision of the specific laboratory tests, with their positive quantitative results, would further establish the existence of THC in the Plaintiff's system, the Plaintiff cannot show prejudice in the failure to provide them, nor can the Court reach any other conclusion but that the DOC's basis for a conviction would be anything but strengthened.

Accordingly, plaintiff's alleged denial of due process from the failure to receive the actual laboratory reports of his drug test prior to his disciplinary hearing fails.

¶ 10. Plaintiff also argues that the DOC must establish a threshold level for toxins or other indicators found in an inmate's urine to constitute "use" of illegal drugs, as opposed to second-hand smoke exposure, in order to convict an inmate of a DR violation based on a random drug test. Plaintiff contends that this threshold level is necessary to avoid false positives and the imposition of arbitrary disciplinary sanctions. Again, plaintiff is incorrect.

¶ 11. The DOC, in an effort to implement its zero tolerance policy against illegal drug use in Vermont's prisons, has established a drug testing protocol for inmates that requires testing procedures that have at least a "90% . . . reliability...