Wykoff v. Resig, S 84-713.

• Decision Date: 30 July 1985
• Docket Number: No. S 84-713.,S 84-713.
• Citation: 613 F. Supp. 1504
• Parties: Randall WYKOFF, Plaintiff, v. Jan RESIG, Director of Westville Work Release Center; Gordon Faulkner, Commissioner of Indiana Department of Correction; Cloid Shuler, Deputy Commissioner of Operations for Indiana Department of Correction, Defendants.
• Court: U.S. District Court — Northern District of Indiana

613 F. Supp. 1504

Randall WYKOFF, Plaintiff, v. Jan RESIG, Director of Westville Work Release Center; Gordon Faulkner, Commissioner of Indiana Department of Correction; Cloid Shuler, Deputy Commissioner of Operations for Indiana Department of Correction, Defendants.

No. S 84-713.

United States District Court, N.D. Indiana, South Bend Division.

July 30, 1985.

Rick C. Gikas, Merrillville, Ind., for plaintiff.

Kermit R. Hilles, Deputy Indiana Atty. Gen., Indianapolis, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

The plaintiff, Randall Wykoff, former prisoner at the Westville Work Release Center (WWRC) presently incarcerated at Westville Correctional Center (WCC), brought this action against defendants, Janice Resig, Director of the WWRC, Gordon Faulkner, Commissioner of the Indiana Department of Correction (DOC), and Cloid Shuler, Deputy Commissioner of Operations for the Indiana DOC, claiming that his rights have been violated under 42 U.S.C. § 1983. Plaintiff alleges that his Fourth, Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States have been violated.

Jurisdiction here is founded upon 28 U.S.C. §§ 1331 and 1343(3) and (4). This court has conducted extensive evidentiary proceedings in this case: February 8, 1985 in South Bend, Indiana, May 3, 1985 in South Bend, May 24, 1985 at WCC, June 13, 1985 in South Bend, and concluding on June 20, 1985 in South Bend. This shall constitute the necessary findings and conclusions under Federal Rules of Civil Procedure 52 and 65. Plaintiff was very ably represented by counsel at all proceedings.

The reasons for plaintiff's alleged deprivation arose on two separate occasions: August 22, 1984 and November 8, 1984. Both incidents stem from plaintiff's alleged use of marijuana.

I.

Plaintiff was transferred to WWRC from Summit Farm Work Release Center in early August 1984. He was employed by Cam Or Oil Company of Westville, Indiana. On August 22, 1984 plaintiff submitted to the EMIT¹ d.a.u Cannabinoid Assay test. Plaintiff alleges that one Sgt. Fleming told him that if his urine test came back positive, he would not lose his Regulated Community Assignment (RCA), his time class, and would probably only lose 30-60 days of good time. Sgt. Fleming denies making this statement. The screening officer, Officer Howard, then informed plaintiff that his urine sample had produced a positive result showing the presence of marijuana in his system. Plaintiff alleges that Officer Howard then confirmed what Sgt. Fleming had told him concerning his sanctions. Officer Howard also denies having made such a statement. Officer Howard testified that he would not have authority to negotiate a plea bargain for this type of offense. Based on these alleged assurances that he would not lose this RCA, time class, or more than 60 days good time, plaintiff entered a plea of guilty before the CAB on August 27, 1984. Plaintiff received a sentence of 90 days loss of good time credits, was demoted in Time Earning Class from Class I to Class II, and his RCA eligibility was cancelled for September 25, 1984. Plaintiff timely appealed the sentence imposed upon him to all available stages of the DOC. The appeals were denied at each step of the DOC's appeals process.

On October 26, 1984, plaintiff filed an Emergency Petition for Writ of Habeas Corpus in the LaPorte County Superior Court, Cause Number S X-XX-XXXX. The petition challenged the constitutionality of various procedures used by the WWRC and the CAB in cancelling plaintiff's scheduled release from incarceration pursuant to the terms of his RCA release date. Until this time, plaintiff had not specifically stated that Officer Howard had made any statements to him concerning the sanctions he received from the CAB. However, central to this habeas corpus action was the challenge to the validity and constitutionality of imposing sanctions based on the sole EMIT test conducted by Pat Stayback of the LaPorte County Sheriff's department.

On November 8, 1984, plaintiff was ordered to submit to a second urine drop, as were several other residents of WWRC. The reason the WWRC officials ordered the drop was because an unnamed informant had accused plaintiff, among others, of using marijuana. However, no written statement had been placed in plaintiff's file wherein an informant was said to have seen plaintiff using marijuana.

After plaintiff submitted to the urine drop, the facts are contested as to the actions and reactions of the plaintiff. Defendants contend that WWRC staff members observed plaintiff as being nervous and agitated. Sgt. McKinley, who was shift supervisor the evening of November 8, 1984, spoke to plaintiff concerning his behavior. Plaintiff allegedly told her that he had smoked some "stuff" earlier in the week and he was afraid it would show up in his urine test. Plaintiff then allegedly packed his belongings and told Sgt. McKinley that the reason he was doing so was because he knew that his urine was for sure dirty and he was just preparing to be sent to WCC for lockup. Worried that plaintiff might try to escape or harm himself or others, Sgt. McKinley called defendant Jan Resig, Director of WWRC, and informed her of the situation. Resig ordered that plaintiff be sent to WCC for his own safety and for the security of the WWRC. Plaintiff contends that he was not packing his clothes, but that clothes were strewn about his room that evening because his roommate was doing the laundry. He claims that this gave the appearance that he was packing his clothes. Furthermore, plaintiff denies making a statement to Sgt. McKinley concerning his smoking marijuana. Plaintiff refused to sign Sgt. McKinley's statement that contained his alleged statements concerning his use of marijuana.

Plaintiff is also challenging the way in which the urine sample was handled and its chain of custody. Three to four hours elapsed from the time plaintiff gave his urine drop until the sample was transported to the LaPorte County Sheriff's Department and locked in a refrigerator. All those who handled the urine sample in the chain of custody testified that they did not tamper with plaintiff's urine sample or any other urine sample which accompanied plaintiff's urine sample.

Pat Stayback of the LaPorte County Sheriff's Department tested plaintiff's urine sample using the EMIT d.a.u Cannabinoid Assay test on November 9, 1984. Plaintiff's urine sample was tested positive. The results of the EMIT test was not confirmed by any other scientific testing technique until after the initiation of the present action. (On February 28, 1985 plaintiff's urine sample from November 8, 1984 was confirmed as positive by the Thin Layer Chromatography (TLC) method).

Based upon the results of the unconfirmed EMIT test, a conduct charge was brought against plaintiff. Plaintiff pled innocent to the charge of using marijuana. On November 13, 1984, plaintiff appeared before the CAB and was found guilty of the aforementioned charge. The CAB's finding of guilt was based upon the unconfirmed result of the EMIT test. Plaintiff received a sentence of ninety days; loss of good time credits; was demoted from Time Earning Class II to Time Earning Class III; and was removed from work release.

As a result of these last sanctions being placed on plaintiff, he has filed this action. Plaintiff suggests that defendants initiated the November urine test in retaliation for him petitioning the LaPorte County Superior Court for a Writ of Habeas Corpus.

Plaintiff's claim is based upon two issues: (1) as to the August incident, whether an inmate who enters a plea of guilty to an institutional charge based upon a staff member's promises as to the sentence he will receive has made a voluntary, knowing and intelligent waiver of his constitutional rights; and (2) what procedural due process must be attendant upon an institutional CAB's use of the results of the EMIT d.a.u Cannabinoid Assay test; i.e. (a) whether positive EMIT results must be confirmed by alternative scientific methods before such results can be used in a CAB hearing to impose disciplinary sanctions against prisoners, and (b) whether the chain of custody of plaintiff's urine sample was adequate.

II. The August Guilty Plea

Plaintiff contends that before an individual may be said to have relinquished a constitutional right, there must be a knowing, intelligent and voluntary waiver of that right. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). A guilty plea that would waive these rights is neither knowing, intelligent nor voluntary if it is "induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper or having no proper relationship to the prosecutor's business (e.g. bribes)." Marby v. Johnson, ___ U.S. ___, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984).

Plaintiff alleges that Officer Howard, the screening officer, made specific promises to him if he would plead guilty, allegations which Howard denies. However, plaintiff has not produced any other evidence or testimony rather than his own testimony showing that a promise was made to him for his plea of guilty. The Notice of Disciplinary Hearing which was completed by Officer Howard and signed by plaintiff contains no hint of a plea bargain agreement on sentencing recommendation. The Disciplinary Hearing Report made out by Douglas Huybart, the counselor who sat as the CAB hearing officer in plaintiff's case, and signed by plaintiff does not contain any reference to an asserted plea bargain or any promise by Officer Howard. The written appeal by plaintiff does not assert that there was plea arrangement or any promise made by Officer Howard upon which plaintiff relied. The one document which plaintiff contends supports his contention is a letter from himself to defendant Jan Resig in which pla...