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Trimaine Noreiga v. Warden Paul M. Schultz

May 12, 2011

TRIMAINE NOREIGA, PETITIONER,
v.
WARDEN PAUL M. SCHULTZ, RESPONDENT.



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

NOT FOR PUBLICATION

OPINION

Petitioner Trimaine Noreiga, a prisoner currently confined at FCI Fairton, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241*fn1 challenging the results of a prison disciplinary proceeding. Warden Paul Schultz is named as the sole respondent.

Petitioner has been granted in forma pauperis status. Because it appears from a review of the Petition that Petitioner is not entitled to relief, the Petition will be dismissed. See 28 U.S.C. § 2243.

I. BACKGROUND

Petitioner is a federal prisoner serving a federal prison term of 100 months with three years supervised release pursuant to his conviction for Bank Robbery in violation of 18 U.S.C. § 2113(A). His projected release date is March 3, 2012.

The following Incident Report was filed against Petitioner: "On December 18, 2009 at 8:12 a.m., inmate Noreiga, Thrimaine [sic] Reg. NO. 19417-057 was directed to provide a urine sample for testing (Suspect Specimen # BOP0001078667). At that time inmate Noreiga was provided with one 8 ounce cup of water. At 10:12 a.m. inmate Noreiga was given a direct order to provide a urine sample. At this time inmate Noreiga refused to provide a sample as directed. The Operations Lieutenant was notified that inmate Noreiga refused to provide a urine sample as directed. Inmate Noreiga than [sic] stated that he had a problem urinating when he was under pressure and that he had talked [to] health services about his problem. I than [sic] proceeded to talk to health services about what the inmate had stated and they have no such record of the problem. Inmate Noreiga was than [sic] placed in the Special Housing Unit." Petitioner received a copy of the Incident Report on that same day. At that time, Petitioner was advised of his rights by Investigating Lieutenant D. McCabe. The initial hearing was held before the Unit Discipline Committee ("UDC") on December 22, 2009. Petitioner made no comment at the hearing. The incident report was then referred to the Discipline Hearing Officer ("DHO"). Petitioner did not request representation or that any witnesses appear at the DHO hearing. The DHO hearing was held on December 31, 2009. Petitioner did not present any evidence in support of his denial of the charges. After the incident report was read, Petitioner stated to the DHO: "I couldn't go. I had this problem before."

At the conclusion of the DHO hearing on June 2, 2008, it was determined that Petitioner committed the prohibited act as he was charged and received the following sanctions: disallowance of forty days of good conduct time ("GCT"), eighteen months of loss of visitation privileges, and then eighteen months of visiting restricted to immediate family only.

Petitioner appealed the DHO's decision, stating that he did not refuse to give a urine sample but that he was unable to do so and should have been given more time. The appeal was denied, with the explanation:

"In your appeal, you do not deny failing to provide a urine sample on December 18, 2009. At 8:12 a.m., the reporting officer stated you were notified that you had two hours to provide a urine sample. By 10:12 a.m., you did not provide a sample. You told the reporting officer you had a problem urinating and you talked to medical about it. Staff called Health Service and medical staff stated there was no reason why you could not provide a sample. You told the DHO, you could not urinate and you had the problem before. Program Statement 6060.08, Urine Surveillance and Narcotic Identification states, if an inmate is unable to provide a urine sample within two hours, there is a presumption the inmate is unwilling to provide it. Based on the evidence presented, the DHO determined you did not adequately rebut the presumption and reasonably found you committed the prohibited act. Unless there is documentation of a medical problem or medication you are taking, that prohibits you from providing a urine sample, you will be subject to disciplinary action if you fail to provide a urine sample when ordered. Your medical records must also document the need to give you more than two hours to provide a sample as outlined in policy."

Petitioner then submitted a Central Office Administrative Remedy Appeal. He did not receive a response. It appears that Petitioner exhausted his administrative remedies before filing this Petition.

Petitioner alleges that he "suffers from an anxiety disorder call [sic] paruresis, which at times impede him from providing urine under pressure and within the 2-hour time period." However, no such evidence of this alleged condition was available at the time of the incident or the subsequent hearings.

II. STANDARDS FOR A SUA SPONTE DISMISSAL United States Code Title 28, Section 2243 provides in relevant part as follows:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application ...


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