DONNIE GAMBREL v. GEORGE MILLION
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RENDERED: NOVEMBER 8, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000508-MR
DONNIE GAMBREL
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 00-CI-00183
v.
GEORGE MILLION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, HUDDLESTON, JUDGES.
BARBER, JUDGE:
Donnie Gambrel appeals from an order of the
Morgan Circuit Court dismissing his petition for declaratory
judgment.
Gambrel, a prison inmate at the Eastern Kentucky
Correctional Complex, filed the petition in the Morgan Circuit
Court against George Million, the Warden at Eastern Kentucky
Correctional Complex, and Carl Smith, whose relevance to the case
is not disclosed by the record.1
Having reviewed the record and
the arguments of the parties, we conclude that the trial court
properly dismissed Gambrel’s petition.
1
Smith was not named as an appellee in Gambrel’s notice of
appeal.
This case involves two prison disciplinary write-ups.
The first write-up resulted from a random drug test administered
on March 4, 2000.
Following laboratory testing, Gambrel’s urine
test came back positive for opiates and hydrocodone.
As a
result, Gambrel was charged with the unauthorized use of drugs or
intoxicants.
The second incident occurred at approximately 11:30
a.m. on March 6, 2000.
During visitation, Gambrel’s female
visitor was seen taking something from her shirt and placing it
into a cup.
Gambrel was then observed taking the cup, drinking
from it, and then chewing the object which had been placed in the
cup.
Subsequently, Gambrel was glassy eyed and failed a sobriety
test, being unable to walk heel-to-toe.
In addition, his speech
pattern was slurred and he could not count backwards correctly.
As a result of this incident, Gambrel was charged with promoting
dangerous contraband.
On March 21, 2000, the penitentiary’s Adjustment
Committee heard the two cases and found Gambrel guilty of both
charges.
Gambrel was punished with 45 days of disciplinary
segregation and 60 days forfeiture of good time for the
unauthorized use of drugs charge, and 90 days disciplinary
segregation and 180 days forfeiture of good time for the
promoting dangerous contraband charge.
Gambrel’s appeal to the
Warden was unsuccessful.
On July 31, 2000, pursuant to KRS2 418.040, Gambrel
filed a petition for declaration of rights in Morgan Circuit
2
Kentucky Revised Statutes.
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Court alleging that there was insufficient evidence to support
his conviction of promoting dangerous contraband, and that the
chain-of-custody in the urine test supporting his conviction for
unauthorized use of drugs was flawed.
The Department of
Corrections responded on behalf of the defendants and filed a
motion to dismiss.
On September 19, 2000, the circuit court
entered an order dismissing Gibson’s petition for declaratory
judgment.
This appeal followed.
It is well-established that "a prison inmate facing
administrative disciplinary proceedings does not have the same
procedural safeguards as does a person facing criminal
prosecution or even parole revocation. . . ."
Ky. App., 825 S.W.2d 286, 288 (1991).
Byerly v. Ashley,
See also Gilhaus v.
Wilson, Ky. App., 734 S.W.2d 808, 809 (1987).
Nevertheless,
"fundamental fairness dictates that the evidence relied upon to
punish him at least be reliable." Byerly, 825 S.W.2d at 288. In
cases, as here, involving the administrative revocation of good
time, the minimum requirements of procedural due process are (1)
advanced written notice of the disciplinary charges; (2) an
opportunity, when consistent with institutional safety and
correctional goals, to call witnesses and present documentary
evidence in defense; and (3) a written statement by the fact
finder of the evidence relied upon and the reasons for the
disciplinary action Wolff v. McDonnell, 418 U.S. 539, 563-567, 94
S.Ct. 2963, 2978-2982, 41 L.Ed.2d 935 (1974).
Furthermore a
disciplinary decision may not be disturbed on appeal if "some
evidence supports the decision by the prison disciplinary board
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to revoke good time credits.” Superintendent, Massachusetts
Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105
S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985).
Kentucky courts have
recognized and followed these requirements. Stanford v. Parker,
Ky.
App., 949 S.W.2d 616, 617 (1996); Smith v. O'Dea, Ky. App.,
939 S.W.2d 353, 357 (1997).
First, Gambrel contends that there was insufficient
evidence to support his conviction in the second incident, the
charge of promoting dangerous contraband.
Gambrel alleges that
it was never specified what he swallowed; that a urine test which
was administered following the visiting room incident showed less
of a concentration of hydrocodone than the test administered on
March 4, 2000; and that if he was believed to be intoxicated, the
proper charge for the incident should have been for unauthorized
use of drugs.
We are persuaded that there is sufficient evidence
in the record to sustain Gambrel’s conviction.
The disciplinary report reflects that, in finding
Gambrel guilty, the Adjustment Committee relied upon the
statements and occurrence reports of corrections officer Tammie
Williams, who witnessed the incident via security camera, and
Sgt. Neace, who reviewed the incident on video tape.
Officer
Neace’s occurrence report described the incident as follows:
On 3-6-00 at 11:30 a.m. Officer T. Williams
was observing Resident Donnie Gambrel 131359
of 7-DL-1. At this time his wife Barbara J.
Gambrel . . . reached in her shirt and got an
unknown item and put it in a paper cup. B.
Gambrel then poured soda into the cup and
pushed it over to D. Gambrel. D. Gambrel
then picked the cup up and drank the entire
contents. Then he began to chew the item and
swallow. He seemed to have trouble so he
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poured more soda and drank it. Then appeared
to be relieved. At approx. 11:45, I, Sgt.
Neace, terminated the visit and escorted D.
Gambrel to the Medical Unit where he was
placed in a holding cell. B. Gambrel was
escorted out of the visiting room by C.O.T.
Williams. This incident was taped on VHS.
The Adjustment Committee report also indicates that it
relied upon the report from the Medical Unit.
The report
concerns a medical examination of Gambrel administered shortly
after the visiting room incident.
The Medical Unit report, while
in part illegible, stated that Gambrel’s eyes were red and
glassy; that in counting backwards from 20 to zero he missed the
number 10; and that he could not walk heel to toe.
In addition,
a urine test was administered, which produced a positive result.
The foregoing reflects an abundance of evidence that after
ingesting the object his wife placed in the cup, Gambrel was
under the influence of drugs, a dangerous contraband.
The statements of the officers and the medical report
are sufficient evidence, i.e., “some evidence,” to support the
determination of the Adjustment Committee that Gambrel was guilty
of promoting dangerous contraband.
Gambrel also contends that the chain-of-custody for the
March 4, 2000, urine test was not properly completed and,
therefore, the integrity of the sample was compromised and the
test was unreliable evidence.
Specifically, Gambrel alleges two
problems — first, that when the lab specimen was placed in the
hands of the courier, the courier did not sign the form but,
rather, the notation “courier” was entered in the applicable
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space, and, second, that there is no chain of custody sheet
disclosing what occurred at the lab.
At the time Gambrel’s urine sample was taken, the
Department of Corrections' Policy and Procedure 15.8(VI)(c),
regulating chain of custody, provided as follows:
1. A Chain of Custody form shall be properly
filled out by the staff who collected the
urine sample.
2. Each time the sample is released, the
person releasing the sample shall legibly
sign, not initial, the Chain of Custody
indicating date and time of release.
3. Each time the sample is received, the
person receiving the sample shall:
a. sign the Chain of Custody;
b. indicate date and time of receipt; and
c. whether or not the seal is intact.
4. Each time the sample is received or
released from an inanimate object including a
locked security box, mail pouch or mail room,
the form shall be signed on behalf of the
object below the name of the object.
5. An institution that utilizes any outside
delivery agent to deliver a urine sample to
the laboratory shall ensure that the sample
is released to the delivery agent by
signature of staff packaging the sample.
6. The laboratory personnel conducting the
testing shall sign and date the Chain of
Custody certifying:
a. that the seal is intact; and
b. that the name and number on or in the
specimen bottle matches the name and number
on the Chain of Custody form.
Gambrel relies upon Byerly v. Ashley, Ky. App., 825
S.W.2d 286 (1991), where this Court reversed a disciplinary
action against an inmate because the chain-of-custody procedure
failed to meet due process requirements.
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In Byerly, this Court
stated that the chain-of-custody “is for the purpose of
establishing that the sample tested is the same as that taken
from a particular individual and that, at the time it is tested,
the sample is in the same condition as when taken free of
tampering."
Id. At 287.
In that case, the chain-of-custody
procedure was followed "only as far as showing the sample being
delivered by a correctional officer to the laboratory courier.
No one at the laboratory made an entry on the form indicating who
or how many handled the specimen there."
Id.
The Court in
Byerly also noted that the form completed by the laboratory
failed to state whether the package and the seals were intact
upon receipt.
The present case is distinguishable from Byerly.
The
chain of custody form discloses that the sample was collected
from Gambrel on March 4, 2000.
Gambrel signed an acknowledgment
that “the specimen container(s) was/were sealed with tamper-proof
seal(s) in my presence.”
is 5179295-0.
The specimen identification on the form
The form is signed as first being received by the
person who collected the specimen, Dewayne A. Nickell.
Next, the
form indicates the specimen as being released by Nickell on March
4, 2000, and being received by the courier for the purpose of
sending the specimen to the lab for testing.
Rather than a
signature occupying the applicable space, the term “courier” is
entered.
The form then shows that the specimen was received and
signed for by R. Bowling of LabCorp, the laboratory which
performed the actual drug screening tests, on March 7, 2000.
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The
form has boxes to be completed by the lab stating “Pouch intact
upon receipt?” and “Seals intact upon receipt?”
checked “yes.”
Both boxes are
Finally, the actual LabCorp drug screening report
is included in the record.
The report is shown as being for
specimen number 5179295-0, and as having been prepared by Dr.
Ronald J. Elin.
The procedure used herein was approved in Byerly, where
this Court stated:
We would have no problem in this case if the
laboratory had filled out its own form to at
least indicate who received the sample, that
the specimen seal was then intact, and who
had handled the specimen through the time it
was tested. This is hardly a burdensome
procedure, as even the laboratory would seem
to agree in light of its own forms. Such a
simple procedure would obviate any reasonable
probability of tampering from the time the
sample leaves correctional authorities until
it is received by the laboratory, while at
the same time establishing the integrity and
identity of the specimen actually tested. Id.
at 288.
Since a LabCorp employee signed for the specimen on
March 7, 2000, and the form was completed to indicate that the
package and the seals were intact upon receipt, we believe the
“fundamental fairness” requirement of Byerly has been met since
the evidence relied upon to punish Gambrel has every indication
of being reliable.
The entry of the term “courier” in the
applicable box rather than the actual signature is not, we
conclude, fatal to the chain-of-custody requirements.
Since Gambrel has not identified any facts justifying a
finding that the evidence relied upon to punish him was
unreliable, or that his due process rights were otherwise
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violated, the order from which this appeal is prosecuted is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donnie Gambrel, pro se
Eastern Kentucky Correctional
Complex
West Liberty, Kentucky
John T. Damron
Justice Cabinet
Department of Corrections
Frankfort, Kentucky
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