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Miguel Angel Morales v. Donna Zickefoose

February 3, 2011

MIGUEL ANGEL MORALES, PETITIONER,
v.
DONNA ZICKEFOOSE, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Simandle, District Judge:

NOT FOR PUBLICATION

[#65643-004]

OPINION

Petitioner Miguel Angel Morales, a prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey, has submitted a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241,*fn1 challenging the results of a prison disciplinary proceeding.

For the reasons set forth below, the Petition will be denied.

I. BACKGROUND

Petitioner is a federal prisoner serving a sentence of 135-months' imprisonment imposed upon his conviction of various drug and firearms offenses. See United States v. Morales, Crim. No. 05-20791 (S.D. Fla.). His projected release date is August 27, 2005.

On February 13, 2009, Petitioner was selected to provide a urine sample for drug testing. Petitioner was given a two-hour period of time in which to provide the sample, during which time he was subjected to visual observation by a correctional officer of the same gender. There is no dispute that Petitioner did not provide the urine sample as directed.

On the same date, Petitioner was issued Incident Report Number 1832920 for Refusing to Provide a Urine Sample, Code 110. The incident report described the violation as follows:

On Friday February 13, 2009 at 9:30AM inmate Morales, Miguel #65643-004 was asked to provide a urine sample. He was given the two hours, at that point inmate Morales was not able to provide a urine sample. Health services staff was contacted and was informed by medical records tech Ms. Quinto that there is nothing in his records that specify he is unable to provide urine sample. (Incident Report Number 1832920, ¶ 11.)

The Incident Report was delivered to Petitioner on the same date. Petitioner was read his rights, and he declined to make a statement at that time.

On February 17, 2009, an initial hearing was held before the Unit Disciplinary Committee. At that hearing, Petitioner stated, "I could not use the bathroom. I was there for two hours. I do not use drugs." The Unit Disciplinary Committee then referred the Incident Report to the Discipline Hearing Officer, because of the severity of the offense.

At the DHO hearing on March 12, 2009, Petitioner was advised of his rights; he did not request a staff representative or any witnesses. Petitioner's statement to the DHO is summarized in the DHO Report as, "I could not provide. I told Respeto I could not go. I could not pee earlier in the unit two times." At the conclusion of the hearing, the DHO determined that Petitioner had committed the prohibited act of Code 110, based upon the Incident Report and Petitioner's admission that he did not provide a sample. He imposed sanctions including 30 days disciplinary segregation, another 30 days disciplinary segregation (suspended pending 180 days clear conduct), disallowance of 40 days good conduct time, 60 days loss of commissary privileges, 60 days loss of telephone privileges (suspended pending 180 days clear conduct), 12 months loss of visitation, and 12 months visitation with immediate family members only. The DHO explained the reasons for the sanctions as follows:

The action on the part of an inmate to refuse to provide a urine specimen for drug screening creates an inability for the established drug screening policy to be successfully carried out. The program provides the staff with the necessary means to provide a safe and secure environment for both inmates to live within and where the staff can work. Inmates who refuse to participate in these tests must be held accountable at the same level as inmate who test positive. Otherwise, inmates who know they will test positive could avoid or lessen the consequences by simply refusing the test. Disciplinary Segregation, Disallowance of Good Conduct Time, Loss of Privileges, are meant to demonstrate the seriousness of these offenses to you as well as everyone incarcerated at this facility. (DHO Report, ¶ VII.)

Petitioner filed a timely BP-10 administrative remedy appeal to the Regional Director. In the BP-10, Petitioner challenged the "immoral cruel and inhumane circumstances" to which he had been subjected, specifically, the circumstances of having to provide a urine sample while being subjected ...


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