Kingsley v. Bureau of Prisons

• Citation: 937 F.2d 26
• Decision Date: 24 June 1991
• Docket Number: D,No. 518,518
• Parties: Michael J. KINGSLEY, Plaintiff-Appellant, v. BUREAU OF PRISONS, Michael Quinlan, Director, Jesse James, Warden, F.C.I. Otisville, and Mark Myers, Lieutenant, F.C.I. Otisville, Defendants-Appellees. ocket 89-2399.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 26

937 F.2d 26

Michael J. KINGSLEY, Plaintiff-Appellant, v. BUREAU OF PRISONS, Michael Quinlan, Director, Jesse James,

Warden, F.C.I. Otisville, and Mark Myers,

Lieutenant, F.C.I. Otisville,

Defendants-Appellees.

No. 518, Docket 89-2399.

United States Court of Appeals, Second Circuit.

Argued Feb. 7, 1991.

Decided June 24, 1991.

Charles E.F. Millard, Jr., New York City (Davis Polk & Wardwell, Ogden N. Lewis, of counsel), for plaintiff-appellant.

Thomas A. Zaccaro, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Edward T. Ferguson, III, Asst. U.S. Atty., of counsel), for defendants-appellees.

Before LUMBARD, NEWMAN and ALTIMARI, Circuit Judges.

LUMBARD, Circuit Judge:

Michael J. Kingsley, a federal prisoner, formerly an inmate at the Federal Correctional Institution ("FCI") at Otisville, New York, appeals the July 27, 1989, order of the Southern District of New York, Louis L. Stanton, Judge, dismissing his pro se complaint, which the court construed as a petition for a writ of habeas corpus and as a claim for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Kingsley alleges that his constitutional rights were violated during a random prison drug test and in subsequent disciplinary proceedings that occurred because he allegedly refused to provide a urine sample within two hours, in violation of 28 C.F.R. Sec. 550.30(c) (1990). ¹

We conclude that Kingsley was denied his right to call witnesses in his disciplinary hearing and, therefore, we reverse the dismissal of his petition for a writ of habeas corpus. The district court is directed to order defendant Jesse James, Warden of FCI Otisville, to reinstate the 15 days of "good time" ² revoked in the disciplinary proceedings and to expunge the offense from Kingsley's record, unless a new hearing is held at which Kingsley is permitted to call witnesses. We affirm the district court's dismissal of Kingsley's Bivens action, as the facts alleged do not constitute cruel and unusual punishment.

BACKGROUND

Kingsley, an inmate at FCI Otisville, spent the evening of July 18, 1987 exercising. He had run five miles, showered, and urinated, but did not drink any fluids. At approximately 8:00 p.m., prison officials told Kingsley that he was to be part of a random prison drug test, and that he would have to provide a urine sample within the next two hours. Kingsley had never participated in a prison drug test before.

Kingsley, along with thirty-six other inmates, was escorted to the lieutenants' office, where he was asked to provide a urine sample. Kingsley told the officer who monitored the test, Lieutenant Mark Myers, that he was nervous and could not urinate when anyone was watching. Myers informed Kingsley that he would be subject to sanctions if he refused to supply a specimen.

When Kingsley was unable to provide a sample in his first attempt, Myers gave him two cups of water to drink. At approximately 8:20 p.m. and 8:40 p.m., Kingsley again attempted to urinate into a specimen bottle, but was unsuccessful. Each of the three attempts was made in the lieutenants' office bathroom, with Kingsley under Myers' direct supervision. During each of the attempts, Kingsley requested permission to leave the sink faucet turned on. Kingsley stated that the sound of running water might help him urinate. Kingsley also alternated letting warm and then cold water run over his left wrist while he attempted to urinate. At approximately 8:55 p.m., Kingsley made another unsuccessful attempt to produce a specimen.

At about 9:00 p.m., Kingsley and six other inmates, who also had not provided urine samples, were taken by Myers to the Special Housing Unit ("SHU") for an official inmate count. An hour later, the inmates were returned to the lieutenants' office to try again. The other inmates provided a specimen at that time, but Kingsley did not.

At about 10:30 p.m., in the presence of a third individual, Officer Atwood, Myers gave Kingsley a cup of ice and told him to apply it to his testicles. Kingsley contends that he was ordered to apply the ice to himself; according to Myers, it was merely a suggestion. Kingsley states that he did not know whether Myers was trying to help or hurt him but, nevertheless, he complied with the instruction. Although Kingsley believed that the application of ice would not hurt, he claims that it did. Kingsley was unsuccessful in his subsequent attempts to provide a urine specimen. At approximately midnight, Kingsley was taken to disciplinary segregation.

Myers then instructed SHU Officer Crowell to prepare an incident report charging Kingsley with refusing to provide a urine sample. Crowell's report stated: "At 8:40PM Inmate Kingsley, Michael # 15423-038 was brought into Segregation for a urine sample. At 12:00 AM Inmate Kingsley still had not provided a urine sample."

On July 19, the incident report was investigated by Lieutenant Keith, who determined: "Inmate Kingsley [sic] attitude was good. Inmate Kingsley stated that the incident report is true as written. No other statement was made." Keith concluded that the incident report was warranted and forwarded the report to the prison unit disciplinary committee.

That same day, Kingsley appeared before the unit disciplinary committee. The committee recorded Kingsley's comments to it as follows: "States that he could not Urine [sic] for the Lt. Incident true as stated." The committee referred the charge to the disciplinary hearing officer ("DHO") for hearing and disposition.

At the July 21 disciplinary hearing, Kingsley explicitly requested that witnesses be called on his behalf. He specified that he wished to call "who ever was one [sic] line the night of the test." Kingsley did not know the names of these persons; when the random drug test was conducted, Kingsley had only been at FCI Otisville for five days. Prison officials had a list of the 36 inmates, which indicated those seven inmates who, along with Kingsley, had not initially provided urine samples. Nevertheless, the DHO found that Kingsley waived his right to call witnesses because he could not identify them by name.

The DHO's report summarizes Kingsley's statement at the July 21 hearing as follows:

I did not refuse to give a urine sample, I was unable to. I called the officer in the morning and told him I could give him a sample then but he didn't want it anymore. This is the first time I ever had to provide a sample and I was nervous and No other witnesses testified at the hearing. Considering only Kingsley's testimony, the incident report and investigation, the DHO found that the act was committed as charged. The DHO set forth the following as "specific evidence to support [his] findings":

couldn't urinate at that time. I am clean, I would have given a sample if I could. They gave me more than the 2 hour time limit and also gave me two (2) cups of water.

On July 18, 1987 at 12:00 midnight, you were issued an incident report for failing to provide a urine sample required by Bureau policy. Officer Crowell, Special Housing Unit Senior Officer Specialist, issued the incident report relating that you had entered Segregation at 8:40 p.m. for the purpose of obtaining the urine specimen, and as of 12:00 midnight, you had not provided the required sample.

Throughout the disciplinary process you freely admitted that you did not provide the sample, justifying your actions as being unable to urinate. Although not revealed in the investigation of this report, you were freely advised [sic] that you were given the opportunity to consume two (2) cups of fluid, and given more than two (2) hours to provide your sample. A review of the time element revealed that you were given more than ample opportunity, specifically, 3 hours and 40 minutes, to provide the sample.

Your inability to provide a urine sample is not justified by any medical documentation or evidence submitted during this hearing; therefore, you are guilty of Code 110. ³

In addition to placing a "Code 110" on Kingsley's record, the DHO sanctioned him with 15 days disciplinary segregation and the loss of 15 days statutory good time. The DHO set forth the following reason for the disciplinary action:

The Federal Prison System initiated a Urinalysis Surveillance Program in order to identify inmates utilizing unauthorized narcotics, medication and marijuana. A review of all procedures surrounding the incident reveals that staff followed the guidelines as established by policy. Your refusal or inability to provide a urine sample cannot be condoned, therefore, the above sanctions have been imposed. Hopefully the next request for a urine specimen will be accomplished within the required time limit, and this type of incident will not occur in the future.

Because of the July 18 incident, Kingsley was placed in the high risk test group of the urine surveillance program and was required to provide urine specimens for six consecutive months. See 28 C.F.R. Sec. 550.30(a). Kingsley did so, each time testing negative for illegal substances. He was removed from the high risk group on February 1, 1988. Since that time, Kingsley's difficulty in providing urine specimens has been documented by Lynn Calcote, a chief prison psychologist. Calcote states that Kingsley's anxiety is not unusual. She recommends that Kingsley be given more time than the two hours suggested in the prison guidelines or be permitted to use a "dry cell" to allow him to provide a sample in private, but without the risk of dilution.

After the disciplinary hearing, Kingsley filed a Request for Administrative Remedy with the Bureau of Prisons. On September 15, 1987, this appeal was denied. On October 5, Kingsley filed a Central Office Appeal, to which he received no response.

On June 7, 1988, Kingsley filed a pro se complaint under 42 U.S.C. Sec. 1983 (1988) against defendants Bureau of Prisons; Michael...