                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2005

Perez v. Warden McKean FCI
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1034




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"Perez v. Warden McKean FCI" (2005). 2005 Decisions. Paper 946.
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CPS-199                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-1034
                                   ________________

                                     JULIO PEREZ,
                                           Appellant
                                           v.

                              FCI MCKEAN, WARDEN
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00033E)
                     District Judge: Honorable Sean J. McLaughlin
                     ____________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  April 7, 2005

                 Before: ALITO, McKEE and AMBRO, Circuit Judges

                                  (Filed June 29, 2005)


                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Julio Perez, a prisoner who proceeds pro se, appeals from the denial of his petition

for writ of habeas corpus. Pursuant to 28 U.S.C. § 2241, he sought restoration of Good

Time Credits that he lost when he was sanctioned in a prison disciplinary proceeding for
marijuana use while incarcerated. Perez claimed that his due process rights were violated

in the disciplinary hearing because his request to have a second urine test performed was

denied. He maintained, in the hearing and in his petition, that medication he was taking

caused a false positive result for THC metabolite (which indicates marijuana use). The

District Court, adopting the Report & Recommendation of the Magistrate Judge, held that

Perez was not deprived of due process of law because some evidence supported the

finding that Perez used marijuana while incarcerated. Perez appeals and moves for

appointment of counsel. The government has filed a motion for summary affirmance.

Because no substantial question is presented on appeal, we will summarily affirm.

       Perez was not denied due process of law in the prison disciplinary proceeding. As

a prisoner facing a deprivation of a liberty interest in a prison disciplinary hearing, Perez

was entitled to procedures sufficient to ensure that his interest in his Good Time Credits

was not arbitrarily abrogated. See Wolfe v. McDonnell, 418 U.S. 539, 557 (1974).

Specifically, he had to be afforded the following procedural protections:

       (1) an impartial tribunal; (2) advance written notice of the charges and
       underlying evidence; (3) an opportunity to call witnesses and present
       documentary evidence (to the extent compatible with the needs of the
       prison); (4) aid from a fellow inmate or staff representative, if Perez
       were illiterate or if the issues were complex; and (5) a written statement by
       the factfinders describing the evidence relied on and the reasons for
       disciplinary action taken.

See id. at 563-72. In addition, to comport with the requirements of due process, the

decision of the disciplinary hearing board had to be supported by some evidence. See



                                              2
Superintendent v. Hill, 472 U.S. 445, 454 (1985). Perez based his challenge to the

prison’s decision on his claim that he was prevented from presenting evidence in the

disciplinary proceeding to show that the medication he was taking at the time caused a

false positive result for THC metabolite.

       Perez was able to present evidence to substantiate his theory of a false positive

result. He testified in his own defense, and maintained that he had not used marijuana

since 1979. He noted that a physician on the prison’s staff, Dr. Beam, told him that his

medication could produce a false positive result for THC metabolite. Dr. Beam testified

that he contacted the prison pharmacist to determine whether the assay used in the urine

test at issue could have caused a false positive result. Dr. Beam reported that the

pharmacist told him that, according to the “Central Office,” the medication would not

cause a false positive with the assay used. Perez also testified that he had previously been

apprised of the possibility of a false positive result for THC metabolite when he was an

out-patient in a drug rehabilitation center in New York. In the District Court, but not in

the prison disciplinary proceeding, Perez submitted medical records from that center to

substantiate his testimony. In the medical records, a laboratory toxicologist’s report noted

that the medication that Perez takes could cause a false positive for THC metabolite. The

medical records, which cite a possibility, not a certainty, of a false positive result, merely

duplicate evidence presented in the disciplinary hearing.

       Perez also maintained that his urine should have been tested using a different


                                               3
assay, and that he should have been permitted to present the results of that test. Although

he presents evidence that he asked Dr. Beam if a different test could be performed, and

requested in his prison appeal that his urine sample be retested, there is no evidence that

he made a request to prison disciplinary officials that a second analysis be performed and

that the results be presented as evidence during the initial disciplinary hearing. Thus,

even if he did not present all the evidence he wished to present, he did not show that he

was deprived of the opportunity to do so.

       Moreover, although some evidence supported the claim that the urine test gave a

false positive result, some evidence supported the conclusion reached in the disciplinary

proceeding, which is all that is required. Perez was afforded due process of law in the

disciplinary proceeding. The District Court’s order will be affirmed. The motion for

appointment of counsel is denied.
