DARRELL WILSON v. JAMES L. MORGAN
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RENDERED:
SEPTEMBER 5, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000236-MR
DARRELL WILSON
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 02-CI-00253
v.
JAMES L. MORGAN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE AND McANULTY, JUDGES.
BARBER, JUDGE:
Darrell Wilson appeals from an order of the
Boyle Circuit Court which granted James L. Morgan’s motion to
dismiss Wilson’s declaratory judgment action.
Wilson, a prison
inmate at the Northpoint Training Center, had filed a
declaratory judgment action against Morgan, the warden at
Northpoint, alleging improper disciplinary action was taken
against him.
Having reviewed the record, the arguments of the
parties and the applicable law, we affirm.
On January 22, 2002, Northpoint Correctional Officer
Michael Hovious collected a urine specimen from Wilson for the
purpose of a drug screen.
Officer Hovious, witnessed by
Correctional Officer Jason Spurr, took the sample from Wilson,
sealed it and arranged for the sample to be shipped to a private
laboratory for analysis.
January 31, 2002.
Wilson’s urine sample was tested on
These test results, received by Northpoint on
February 6, 2002, indicated the presence of cocaine.
Thereafter, Corrections Officer John Fowler, in a disciplinary
report, charged Wilson with unauthorized use of drugs in
violation of regulations promulgated by the Department of
Corrections.
The laboratory results were attached to Officer
Fowler’s report.
On April 14, 2002, Wilson appeared before the
Northpoint Training Center’s Adjustment Committee for a hearing.
After reviewing the chain of custody reports provided to Wilson,
the results of the drug test, as well as testimony from Officer
Hovious, the Committee found Wilson guilty of the charged
offense.
The Committee penalized Wilson with disciplinary
segregation for 45 days, ordered the forfeiture of 60 days good
time credit and restricted Wilson’s institutional privileges for
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180 days.
Wilson timely appealed this decision to Warden
Morgan, who denied the appeal on April 29, 2002.
Following Warden Morgan’s denial of Wilson’s
institutional appeal, Wilson filed a declaratory judgment action
with the Boyle Circuit Court.
In this declaratory judgment
action, Wilson sought a declaration that authorities at
Northpoint Training Center violated his constitutional rights.
Wilson also requested the trial court to restore his good time
credits and expunge his record with regard to the drug charge.
Wilson further requested compensatory and punitive damages from
Warden Morgan.
The trial court dismissed Wilson’s declaratory
judgment action upon Warden Morgan’s motion.
This appeal
followed.
On appeal, Wilson presents two arguments for our
review.
First, Wilson asserts that he was denied his right to
an appeal because the trial court’s refused to allow him to
proceed in forma pauperis unless Wilson paid a filing fee of
$126.00 for the appeal.
On January 3, 2003, we vacated the
trial court’s order that denied Wilson’s motion to proceed in
forma pauperis and remanded this matter to the trial court for
entry of an order granting Wilson’s motion.
Accordingly, we
need not address this argument herein as this issue is moot.
We now turn to Wilson’s argument that the trial court
erred in dismissing his declaratory judgment action because
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Warden Morgan and corrections officials at Northpoint violated
his due process and equal protection rights.
We find this
assertion to be totally lacking in merit.
When a prisoner files a request for declaratory
judgment to the circuit court, the request invokes the trial
court’s ability to act as a court of review.
Ky. App., 939 S.W.2d 353, 355 (1997).
Smith v. O’Dea,
An inmate who alleges due
process violations has the burden of demonstrating that some
type of arbitrary governmental action resulted in the
deprivation of a protected liberty or property interest.
Williams v. Bass, 63 F.3d 483, 485 (6th Cir. 1995).
Where a
prison disciplinary hearing may result in the loss of good time
credits, the inmate is required to receive advanced written
notice of the disciplinary charges, an opportunity to call
witnesses and present documentary evidence in defense and 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, 41 L.Ed.2d 935
(1974).
Kentucky courts have recognized and followed these
requirements.
Stanford v. Parker, Ky., 949 S.W.2d 616, 617
(1996); Smith v, O’Dea, Ky. App., 939 S.W.2d 353, 357 (1997).
A
decision to revoke good time credits must be supported by “some
evidence.”
Superintendent, Massachusetts Correctional
Institution, Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768,
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2774, 86 L.Ed.2d 356 (1985).
recognized this standard.
939 S.W.2d at 357.
Kentucky courts have also
Stanford, 949 S.W.2d at 617; O’Dea,
With these legal principles in mind, we now
turn our attention to Wilson’s two specific assertions of error.
First, Wilson argues that the chain of custody of his
urine specimen was incomplete, making the results unreliable.
Wilson relies upon Byerly v. Ashley, Ky. App., 825 S.W.2d 286
(1991) in support of his arguments.
In Byerly, this Court was
confronted with a situation where the chain of custody for the
prisoner’s urine sample was established by prison authorities
until such time as the sample arrived at the laboratory, but was
deficient from that point forward since there was no entry on
the form indicating who or how many handled the specimen at the
lab.
Id., at 287.
In determining that such deficiencies
rendered the chain of custody unreliable, this Court noted that
information reflecting the date and time others within the
laboratory received the sample had been omitted from the form
even though spaces were designated for that purpose.
Id.
Hence, Byerly stands for the proposition that chain of custody
is incomplete unless it at least indicates who received the
sample; that the specimen seal was then intact, and who had
handled the specimen through the time it was tested.
288.
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Id., at
In order to fully comply with our decision in Byerly,
the Department of Corrections revised its regulations concerning
unauthorized substance abuse testing.
At the time Wilson’s
urine sample was given, Corrections Cabinet Policy and Procedure
(CPP) 15.8(VI)(3) governed chain of custody as follows:
(A) A Chain of Custody form shall be properly
maintained on the urine sample.
(B) 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.
(C) The laboratory personnel conducting the
testing shall sign and date the Chain of
Custody certifying:
1. That the sample was received intact;
and
2. That the sample is properly identified
as the inmate’s.
(D) The laboratory shall report which
substance the urine sample tested positive
for, if any.
(E) If the test indicates the use of an
Unauthorized Substance:
1. The Chain of Custody form shall be
returned to the sending institution; and
2. The institution shall initiate a
disciplinary report against the inmate.
(F) If a positive test for an Unauthorized
Substance occurs, the institution shall
determine and document through consultation
with medical or pharmacy staff whether the
inmate is taking medication which may have
resulted in the positive results.
(G) The inmate shall receive a copy of the
Chain of Custody form if a disciplinary
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report is filed against him and if a Chain
of Custody form is used.
Here, the record documents a complete chain of custody
from the time that Wilson signed the chain of custody form on
January 22, 2002 until Certifying Scientist Trudi Osborne
confirmed and released the results of the drug test on February
1, 2002.
First, Wilson signed the custody and control form
acknowledging “each specimen bottle used was sealed with a
tamper-evident seal in my presence.”
Next, the custody and
control forms used by Advanced Toxicology Network (“ATN”)1 leave
no doubt that the sample was received intact by ATN on January
31, 2002.
These forms include the signatures of each person at
ATN’s lab who handled the sample and clearly shows that the test
was performed at ATN’s facility in Memphis, Tennessee.
The test
results were then reported to ChemReview in Kansas City,
Missouri who then reported the results of this drug test to
Northpoint.
Finally, the identification numbers originally
assigned to the urine sample correspond with the numbers printed
on all of the chain of custody forms.
From the record, we find
no evidence that CPP 15.8 was violated or that any flaws in the
chain of custody over Wilson’s urine sample existed.
Hence, we
conclude that the chain of custody herein was valid, proper and
1
ATN is the laboratory that performs and analyzes the drug tests on
Kentucky inmates on behalf of the Department of Corrections.
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clearly establishes the reliability of the results of Wilson’s
positive drug test.
Wilson also argues that his due process rights were
violated because he was denied documents relating to the testing
of his urine specimen.
Wilson argues that, to present a proper
defense, he required access to a carbon-copied page from the
initial custody and control form, as well as a page from a urine
specimen logbook maintained by the correctional institution.
CPP 15.6(VI)(C)(4)(b)(3)(c) requires that inmates be provided
all documents to be used by the Adjustment Committee or the
Adjustment Officer at the hearing.
The written findings of the
Adjustment Committee demonstrate that Wilson was found guilty of
using cocaine solely from Officer Havious’s testimony and from
information contained within Officer Fowler’s disciplinary
report.
Since the documentation Wilson requested was not used
by the Adjustment Committee during the April 15, 2002 hearing,
neither CPP 15.6 nor CPP 15.8 permitted Wilson to obtain those
documents for his defense.
Moreover, even had Wilson possessed
the documentation he requested, Wilson fails to show how the
requested documents would counteract the overwhelming evidence
contained within the record.
Wilson’s positive drug test,
coupled with the evidence of the validity of the chain of
custody of his urine sample, sufficiently satisfies the “some
evidence” standard.
Thus, we cannot find that failing to
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provide Wilson with requested documents deprived him of due
process herein.
For the foregoing reasons, the judgment of the Boyle
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Darrell Wilson, Pro Se
Burgin, Kentucky
Rebecca Baylous
Frankfort, Kentucky
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