REVISED - June 19, 2000
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 99-31200
(Summary Calendar)
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THOMAS RAYMOND HENSON,
Plaintiff - Appellant,
versus
US BUREAU OF PRISONS,
Defendant - Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
June 16, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:
Correctional officers found a tobacco pipe containing a residue which field tested positive for
marijuana on federal prisoner Thomas Raymond Henson. The officers instituted disciplinary
proceedings against him for possession of marijuana. Henson requested a urinalysis test, which came
back negative, but the Bureau of Prisons (“BOP”) denied his request to retest the pipe residue at his
own expense. After a hearing, he was found guilty and his punishment included the loss of fourteen
days of good time credit.1
Henson filed this petition for habeas corpus relief under 28 U.S.C. § 2241 after exhausting
his administrative remedies, arguing that BOP violated his due process rights when it stripped him
of his good time credit without allowing him to retest the pipe residue. He now appeals the district
court’s denial of his petition. We review the district court’s legal conclusions de novo and its factual
findings for clear error. See Royal v. Tombone, 141 F.3d 596, 599 (5th Cir. 1998).
BOP does not challenge the district court’s conclusion that Henson had a statutorily-created
liberty interest in his good time credit. See Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997)
(noting that, while “[t]he Constitution does not guarantee good time credit for satisfactory behavior
while in prison,” “some states create such a right” through statutes creating a ri ght to good time
credit which can be revoked for misconduct). When a prisoner has a liberty interest in good time
credit, revocation of such credit must comply with minimal procedural requirements. See
Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d
356 (1985) (noting the usual procedural requirements which must be observed—notice, an
opportunity to present evidence, and written findings in support of the ruling—and stating that “some
evidence” must support the ruling). These requirements are flexible, however, and must necessarily
be balanced against legitimate penological interests. See id.; Wolff v. McDonnell, 418 U.S. 539, 556,
94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (“Prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”).
1
Henson was also stripped of thirty days of visiting time, commissary time, and telephone privileges,
and he was placed in administrative segregation for fifteen days. He only challenges his loss of good time credit on
appeal.
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Thus, prison officials can limit the evidence a prisoner presents when they can articulate legitimate
reasons for doing so. See Ponte v. Real, 471 U.S. 491, 495-98, 105 S. Ct. 2192, 85 L. Ed.3 (1985);
cf. Hill, 472 U.S. at 454, 105 S. Ct. 2768 (noting that due process generally requires the
“opportunity, when consistent with institutional safety and correctional goals, to call witnesses and
present documentary evidence in [a prisoner’s] defense”). These reasons include “assuring the safety
of inmates and prisoners, avoiding burdensome administrative requirements that might be susceptible
to manipulation, and preserving the disciplinary process as a means of rehabilitation.” Hill, 472 U.S.
at 455, 105 S. Ct. 2768.
We have not previously addressed whether the denial of a drug retest during disciplinary
proceedings, when the prisoner has otherwise been afforded adequate process, violates a prisoner’s
due process rights. Considering the parties’ respective interests in this case, however, it is clear that
BOP did not violate Henson’s rights. BOP has a strong interest in “avoiding burdensome
administrative requirements that might be susceptible to manipulation” and in “act[ing] swiftly on the
basis of evidence that might be insufficient in less exigent circumstances.” Id. at 455-56, 105 S. Ct.
2768. BOP’s justifications for the test make clear that its denial was premised on these concerns.
It denied Henson’s retest request because he failed to identify reliability or execution problems with
the first test, and because it was not even clear that sufficient residue remained in the pipe for a
second test.
On the other hand, Henson identified no specific need for the retest (either by showing that
the test is unreliable or that it was improperly administered) or any case law supporting a general right
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to retest positive drug results.2 Given that there was “some evidence” supporting the punishment,3
Hill, 472 U.S. 456, 105 S. Ct. 2768, and that there would still be “some evidence” even if Henson
obtained a contradictory result from a retest, Henson had no due process right to retest the pipe.
AFFIRMED.
2
Several courts have rejected similar claims. See Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992)
(holding that a prison could deny a prisoner’s request to retest a drug use test, and noting that this was justified by the
burden retests would impose and by the fact that not all prisoners could afford retests); Spence v. Farrier, 807 F.2d 753,
755-57 (8th Cir. 1986) (rejecting a challenge to the use of drug tests without confirmatory retesting); Hoeppner v. Iowa,
379 N.W.2d 23, 25-26 (Iowa Ct. App. 1985) (same).
3
As noted, Henson was found in an area where drug use was reported, he was observed with bloodshot
eyes and a flushed face, his pipe smelled of marijuana, and he admitted owning it and lending it to others. The pipe
field tested positive on the Narcotics Identification Kit (“NIK”) test “E”. Henson’s only challenges to the reliability
or execution of this test are conclusory and unpersuasive. He argues that the testing officer obtained two instances of
false positives in prior cases, without submitting support for this assertion, and he notes that the testing officer
conceded in his affidavit that, although BOP does not have formal training procedures for the test, the officer has
performed the test numerous times by following the instructions provided with the test kit. In light of the officer’s
affidavit indicating the frequency with which he and BOP use the test, and BOP’s citation of decisions where the test
was upheld as reliable, Henson’s unsubstantiated challenge is unpersuasive. See, e.g., United States v. Sanchez, 50
C.M.R. 450, 453-55 (A.C.M.R. 1975) (allowing a NIK test and quoting literature on its reliability).
The only evidence which arguably weighed in Henson’s favor was his negative urinalysis test. Given that he
was charged with possession rather than use, however, this evidence only minimally weighed in his favor.
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