DONALD RUCKER v. KENTUCKY DEPARTMENT OF CORRECTIONS
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RENDERED:
NOVEMBER 26, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002071-MR
DONALD RUCKER
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, JUDGE
ACTION NO. 02-CI-00294
v.
KENTUCKY DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BAKER AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Donald Rucker has appealed, pro se, from an
order of the Oldham Circuit Court entered on July 24, 2002,
which granted the Kentucky Department of Corrections’ motion to
dismiss Rucker’s petition for declaration of rights.
Having
concluded that the trial court did not err in granting the
Department’s motion to dismiss, we affirm.
Rucker is an inmate at the Kentucky State Reformatory
in LaGrange, Kentucky.
On October 17, 2001, Rucker was required
to submit a urine sample which was tested the following day for
the presence of illegal drugs.
Rucker’s urine sample tested
positive for the presence of marijuana and on October 29, 2001,
a disciplinary report was filed against Rucker by the
Department.
A disciplinary hearing was held on November 5,
2001, after which the Adjustment Committee found Rucker guilty
of unauthorized drug use.
Rucker was given 45 days of
disciplinary segregation and forced to forfeit 60 days of goodtime credit.
Rucker’s appeal of the committee’s decision was
denied by the prison warden on November 19, 2001.
On May 17, 2002, Rucker filed a pro se petition for
declaration of rights in the Oldham Circuit Court.
Rucker
claimed that he had been denied due process of law on the
following grounds:
(1) there were defects in his urine sample’s
chain of custody; (2) he was improperly denied the opportunity
to call two doctors as expert witnesses; (3) the Adjustment
Committee improperly relied upon the testimony of Cindy Gray,
the prison’s pharmacist; and (4) he was denied a fair hearing
when the committee chairperson improperly spoke with a witness
outside the hearing room prior to the witness’s testimony.
On July 15, 2002, the Department filed a motion to
dismiss Rucker’s petition for declaration of rights.
On July
24, 2002, after finding that “[t]he chain of custody
documentation for [Rucker’s] urine sample [was] complete,” and
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that Rucker had “failed to demonstrate that he was prejudiced by
the denial of witnesses in such a way as to support a finding of
a due process violation,” the circuit court granted the
Department’s motion to dismiss.
On August 21, 2002, the circuit
court denied Rucker’s motion to alter, amend, or vacate its
order dismissing his petition for declaration of rights.
This
appeal followed.
Rucker first claims that he was denied due process of
law when the Adjustment Committee found him guilty of
unauthorized drug use by relying upon the testimony and report
of Cindy Gray, the prison’s pharmacist.
Specifically, Rucker
argues that Gray was not qualified to testify to which
medications could produce a false positive drug test, and that
Gray’s testimony was not based on all of the facts since she was
not aware that Rucker had taken certain vaccines which,
according to Rucker, could lead to a false positive drug test.
We find this alleged due process violation to be without merit.
In Superintendent, Massachusetts Correctional
Institution, Walpole v. Hill,1 the United States Supreme Court
discussed the evidentiary requirement that must be met to
support a finding of guilt in the prison disciplinary context:
We hold that the requirements of due
process are satisfied if some evidence
supports the decision by the prison
1
472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985).
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disciplinary board to revoke good time
credits. This standard is met if "there was
some evidence from which the conclusion of
the administrative tribunal could be
deduced. . . ." Ascertaining whether this
standard is satisfied does not require
examination of the entire record,
independent assessment of the credibility of
witnesses, or weighing of the evidence.
Instead, the relevant question is whether
there is any evidence in the record that
could support the conclusion reached by the
disciplinary board [citation omitted].
In the case sub judice, our review of the record shows that the
Adjustment Committee’s finding of guilt was supported by
sufficient evidence.
First, although Gray testified that she did not know
Rucker had taken any vaccines, she also testified that she was
unaware of any flu vaccines which would cause a false positive
drug test for marijuana.
Moreover, Dr. Morkas,2 a prison
physician, testified that Rucker’s alleged liver disease, kidney
infection, flu or hepatitis vaccines, and hydrocortisone
injections would not cause a false positive drug test for
marijuana.
Accordingly, since there was “some evidence”
supporting the committee’s finding of guilt, Rucker was not
denied due process of law.
Rucker next argues that he was denied due process of
law on the grounds that a proper chain of custody was not
established with respect to his urine sample.
2
In support of
Dr. Morkas’s first name is not mentioned in the record.
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this claim, Rucker alleges that his urine sample was not placed
“in a secured lock box” prior to being delivered to the lab
courier for shipment.
According to Rucker, this constituted a
“break” in the chain of custody sufficient to render the sample
unreliable.
We disagree.
In Mollette v. Kentucky Personnel Board,3 this Court
discussed the requirements for establishing a proper chain of
custody:
While the integrity of weapons or
similar items of physical evidence, which
are clearly identifiable and
distinguishable, does not require proof of a
chain of custody, a chain of custody is
required for blood samples or other
specimens taken from a human body for the
purpose of analysis to show that the sample
tested in the laboratory was the same sample
drawn from the victim [citations omitted].
Even with respect to substances which
are not clearly identifiable or
distinguishable, it is unnecessary to
establish a perfect chain of custody or to
eliminate all possibility of tampering or
misidentification, so long as there is
persuasive evidence that “the reasonable
probability is that the evidence has not
been altered in any material respect”
[citations omitted].
In the case at bar, our review of the record shows that a proper
chain of custody was established.
Correctional Lieutenant Carl Corley testified that
after Rucker submitted his urine sample, the sample was sealed
3
Ky.App., 997 S.W.2d 492, 495 (1999).
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in the proper container and given to the courier for shipment.
Contrary to Rucker’s assertion, since the courier was already at
the prison, there was no need to place the sample “in a secured
lock box” prior to shipment.
Lt. Corley’s testimony.
Documents in the record support
A form bearing Rucker’s signature and
the identification number “304677260” appears in the record,
which indicates that after Rucker submitted his urine sample, it
was sealed in his presence and the labeling on the container was
correct.
This form also contains language indicating that
Rucker’s urine sample was released to Airborne Express for
shipment after the sample was submitted.
Further, the document
contains the signature of a laboratory employee, who indicated
on the form that the sample was sealed in its container after
being delivered to the lab the following day.
A lab report listing Rucker’s name and the
identification number “304677260” also appears in the record,
and states that Rucker’s sample tested positively for marijuana.
Finally, internal lab documents with the identification number
“304677260,” contain numerous signatures of individuals who
handled the sample at the lab.
These signatures account for the
sample’s movement from place-to-place within the lab.
Therefore, we conclude that there was sufficient evidence
establishing to “a reasonable probability that the evidence
ha[d] not been altered in any material respect.”
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Accordingly,
Rucker’s claim that he was denied due process of law on chain of
custody grounds is without merit.
Rucker next argues that he was denied due process of
law when the committee chairperson, Lt. Bill Searcy, left the
hearing room to “discuss [ ] [Rucker’s] case with Dr. Morkas [ ]
minutes before Dr. Morkas testified at the hearing.”
While it
is apparently true that Lt. Searcy apprised Dr. Morkas of the
issues to be discussed at the hearing prior to his testimony,4 we
conclude that no due process violation occurred.
“The requirements of due process are flexible and
depend on a balancing of the interests affected by the relevant
government action.”5
In the prison disciplinary hearing context,
due process is satisfied if there has been “notice of the
charges, a reasonable opportunity to be heard, and a brief
written finding suitable for judicial review.”6
Further,
“[p]rison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply.”7
In the instant case, since
Rucker has not alleged that any inappropriate communication took
4
In its brief to this Court, the Department admits that Lt. Searcy left the
hearing room to call Dr. Morkas as a witness and that he “apprised” Dr.
Morkas of the issues to be discussed at the hearing.
5
Hill, 472 U.S. at 454.
6
Smith v. O’Dea, Ky.App., 939 S.W.2d 353, 357 (1997)(citing Wolff v.
McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).
7
Wolff, 418 U.S. at 556.
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place when Lt. Searcy left the hearing room to summons Dr.
Morkas, we conclude that Rucker’s due process rights were not
violated when Lt. Searcy briefly apprised Dr. Morkas before he
testified of the relevant issues to be discussed at the hearing.
Therefore, this claim of error is also without merit.
Next, Rucker claims that after the hearing, he
informed Dr. Morkas that he had received injections which were
“laced with Lidocaine” prior to submitting his urine sample.
Rucker contends that Dr. Morkas was not aware of this fact at
the time of the hearing.
Presumably, Rucker is arguing that the
Lidocaine could have affected the results of his drug test and
that further expert testimony was necessary to resolve this
issue.
We disagree.
First, we note that Rucker has produced no evidence
whatsoever indicating that Lidocaine would have had any effect
on the results of his drug test, or that Dr. Morkas would have
testified differently if he had known about Rucker’s alleged
contact with Lidocaine.
Moreover, Dr. Morkas testified that
Rucker would not be in danger of a false positive drug test for
marijuana unless he had taken narcotics within two weeks of the
drug test.
Rucker himself stated at the hearing that the
medicines he had taken were administered more than two weeks
prior to his drug test.
Accordingly, we reject this claim of
error as well.
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Finally, Rucker argues that he was denied due process
of law by the Adjustment Committee’s refusal to allow him to
call two doctors to testify on his behalf.
According to Rucker,
these two doctors could have testified that his prior
medications led to a false positive drug test for marijuana.
disagree and find no violation of Rucker’s due process rights.
We
We once again turn to Wolff, where the United States
Supreme Court stated:
Ordinarily, the right to present evidence is
basic to a fair hearing; but the
unrestricted right to call witnesses from
the prison population carries obvious
potential for disruption and for
interference with the swift punishment that
in individual cases may be essential to
carrying out the correctional program of the
institution. We should not be too ready to
exercise oversight and put aside the
judgment of prison administrators. It may
be that an individual threatened with
serious sanctions would normally be entitled
to present witnesses and relevant
documentary evidence; but here we must
balance the inmate’s interest in avoiding
loss of good time against the needs of the
prison, and some amount of flexibility and
accommodation is required. Prison officials
must have the necessary discretion to keep
the hearing within reasonable limits and to
refuse to call witnesses that may create a
risk of reprisal or undermine authority, as
well as to limit access to other inmates to
collect statements or to compile other
documentary evidence. Although we do not
prescribe it, it would be useful for the
Committee to state its reason for refusing
to call a witness, whether it be for
irrelevance, lack of necessity, or the
hazards presented in individual cases. Any
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less flexible rule appears untenable as a
constitutional matter, at least on the
record made in this case. The operation of
a correctional institution is at best an
extraordinarily difficult undertaking. Many
prison officials, on the spot and with the
responsibility for the safety of inmates and
staff, are reluctant to extend the
unqualified right to call witnesses; and in
our view, they must have the necessary
discretion without being subject to unduly
crippling constitutional impediments. There
is this much play in the joints of the Due
Process Clause, and we stop short of
imposing a more demanding rule with respect
to witnesses and documents.8
In the case at bar, Rucker failed to provide any
evidence whatsoever that either of the two doctors he wanted to
call as witnesses would have provided favorable testimony.
This
fact, coupled with the reality that Dr. Morkas provided
testimony regarding the possible effects of the medications
Rucker had taken, supports the Department’s determination not to
allow Rucker to call two doctors from outside the prison to
testify at the hearing.
Accordingly, Rucker’s final due process
argument is also unpersuasive.
Based on the foregoing, the order of the Oldham
Circuit Court is affirmed.
ALL CONCUR.
8
Id. at 566-67.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald Rucker, Pro Se
LaGrange, Kentucky
Rebecca Baylous
Frankfort, Kentucky
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