United States District Court, D. Connecticut
ORDER DENYING PETITION FOR WRIT OF HABEAS
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE.
Shawn Richard Gallagher has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241, alleging
that his right to constitutional due process was violated
when he was subject to loss of prison good time credits due
to a positive drug test result. Because I conclude that
Gallagher received due process, I will deny the petition for
writ of habeas corpus.
is currently incarcerated at the Federal Correctional
Institution in Danbury, Connecticut, where he is serving a
120-month sentence for Possession with Intent to Deliver
Oxycodone. Doc. #10-1 at 1-2. At the time of the alleged
disciplinary infraction now at issue in this petition,
Gallagher was living at the Coolidge House Residential
Reentry Center (“Coolidge House”) in Boston,
Massachusetts, where he had been transferred from Danbury to
serve the remainder of his sentence. Id. at 2. He
was later transferred back to Danbury after the alleged
disciplinary infraction. Doc. #12 at 2.
1, 2017, a urine sample collected from Gallagher tested
presumptively positive for amphetamine. Doc. #10-1 at 1-2.
Several days later a toxicology drug test report confirmed
the positive test result. Ibid. Gallagher was
charged with use of drugs in violation of Code 112 of the
Federal Bureau of Prisons Inmate Discipline Program.
Smith, an intake and release coordinator at Coolidge House,
investigated the incident. Doc. #10-1 at 16. He read the
incident report, which included a statement by the officer
who wrote it, and he interviewed Gallagher. Ibid.
During the interview, Gallagher told Smith that he had been
prescribed Claritin D as a child and had continued to take it
as an over-the-counter drug. Ibid. Gallagher said
that a counselor at Hope House, a rehabilitation center in
Boston, told him that Claritin D could cause a false positive
urine test. Ibid.
referred the charge to the Center Discipline Committee (CDC)
for a hearing that took place on August 30, 2017.
Ibid.; id. at 27-28. Gallagher was advised
of his rights to be present and participate in the hearing,
as well as his right to the assistance of a staff
representative, which he waived. Ibid. He attended
and denied the charge that he had used amphetamines. He
stated that the urine test was a false positive caused by
Claritin D. Id. at 2. After reviewing the incident
report, the investigation report, the toxicology report, and
other documents, the CDC chairperson found, based on the
greater weight of the evidence, that Gallagher had commit the
act charged. Ibid.
appealed, and Anthony Amico, a Bureau of Prisons discipline
hearing officer (DHO), reviewed the CDC decision.
Ibid. He requested clarification from Coolidge House
about Gallagher's claim that the urine test was a false
positive. Ibid. Joseph Jarvis, a program
administrator at Coolidge House and the chairperson of the
CDC, sent Amico a two-sentence memo stating that on September
5, 2017, “I made contact with Alere toxicology. I had
Mark Wuest, a toxicologist confirm that Claritin D would not
cause a false positive on a UA toxicology report.”
Id. at 29. After reviewing this memo along
with paperwork from the CDC hearing and Gallagher's
disciplinary record, which included two recent disciplinary
charges for using alcohol, Amico found that the CDC hearing
was in substantial compliance with the Bureau of Prisons due
process protections, and that the CDC's findings were
based on the greater weight of the evidence. Id. at
September 14, 2017, Amico certified the CDC hearing and
imposed sanctions by signing the CDC hearing report.
Id. at 14. The evidence listed under the heading
“specific evidence relied on to support findings”
included the initial incident report, Smith's
investigation, the toxicology report, the statement from the
toxicologist, and Gallagher's disciplinary record.
appealed the disciplinary finding to the Regional Director of
the BOP and then to the BOP's Office of General Counsel.
Id. at 3. The record reflects that Gallagher
submitted additional documentation to support his claim that
Claritin D may cause a positive test for amphetamine.
Id. at 38-43. The appeals were denied. Id.
at 3, 36, 47. As a result of the disciplinary finding,
Gallagher lost 41 days of good conduct time that he had
earned and 60 days of non-vested good conduct time.
Id. at 3.
March 19, 2018, Gallagher filed a pro se petition
for writ of habeas corpus. Doc. #1. He claims that his right
to due process was violated because he was wrongly
disciplined on the ground of his lawful use of Claritin D and
because the DHO gave too much weight to the findings of the
CDC. Doc. #9 at 6-8; Doc. #12 at 2-3. He seeks expungement of
his disciplinary record and restoration of 101 days of good
time credit. Id. at 4.
prisoner may challenge the execution of his prison sentence
by means of a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241. See Carmona v. U.S. Bureau of
Prisons, 243 F.3d 629, 632 (2d Cir. 2001). The standard
analysis for a claim of a violation of procedural due process
“proceeds in two steps: We first ask whether there
exists a liberty or property interest of which a person has
been deprived, and if so we ask whether the procedures
followed . . . were constitutionally sufficient.”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011)
well-settled that prisoners enjoy a liberty interest in
earned good time credit. See Sira v. Morton, 380
F.3d 57, 69 (2d Cir. 2004) (citing Wolff v.
McDonnell, 418 U.S. 539, 555-56 (1974)); Walker v.
Williams, 2018 WL 264172, at *2 (D. Conn. 2018). Because
it is clear that Gallagher lost earned good time credit as a
result of the disciplinary charge ...