William Lewis v. Warden Canaan USP , 683 F. App'x 110 ( 2017 )

BLD-114 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-4037
____________
WILLIAM SOLOMON LEWIS,
Appellant
v.
WARDEN CANAAN USP;
UNITED STATES ATTORNEY GENERAL
__________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 3-15-cv-00319)
District Judge: Robert D. Mariani
__________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 26, 2017
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed: March 23, 2017)
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OPINION*
____________
PER CURIAM
William Lewis appeals from an order of the District Court denying his petition for
writ of habeas corpus, 28 U.S.C. § 2241. For the reasons that follow, we will summarily
affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Lewis, while incarcerated at the United States Penitentiary-McCreary in Pine
Knot, Kentucky, was charged in Incident Report No. 2283439 with a Code 227 violation
for refusing to submit to a tuberculosis skin test. Bureau of Prisons (“BOP”) Program
Statement (“P.S.”) 6190.04, requires inmates to undergo a purified protein derivative
(“PPD”) skin test for tuberculosis (“TB”). Lewis complained to prison personnel that he
had previously experienced “red blistering and swelling” following a PPD test. He
requested a chest x-ray in lieu of the test. The request was denied by prison staff and
Lewis’s continued refusal resulted in the misconduct, 28 C.F.R. § 549.12(b)(4).
On March 27, 2012, the Unit Disciplinary Committee referred the misconduct to a
Disciplinary Hearing Officer. Lewis was given notice of the hearing and advised of his
rights. Lewis did not request a staff representative, nor did he request any witnesses to
appear on his behalf. At his hearing, Lewis admitted the allegations but argued that his
refusal of the PPD skin test was justified because of his prior allergic reaction. Lewis
submitted a copy of P.S. 6190.03, and argued that it supported his position that he was
entitled to a chest x-ray in lieu of a PPD test.1 Specifically, Lewis argued that BOP
policy allows for a chest x-ray based solely on an inmate’s self-reporting of an allergic
reaction.
1
Specifically, Lewis noted the following text:
A self-reported, undocumented previous positive tuberculin skin test is not
a contraindication to receiving a tuberculin skin test unless a severe
previous reaction (e.g. whole arm swelling or severe blistering) has been
documented or described by the inmate. *** An inmate may not request to
substitute a chest radiograph for a screening tuberculin skin test. The only
exception is when there is a medical contraindication to tuberculin skin
testing….
P.S. 6190.04 (emphasis added).
2
Following the hearing, the Hearing Officer concluded that Lewis’s refusal to
submit to the PPD test was unjustified and found him guilty of the misconduct. The
Hearing Officer found that Lewis’s refusal was not based on a prior positive PPD test or
severe previous reaction, and that the only basis for his refusal was his preference to not
have the tuberculosis virus injected into his skin. The Hearing Officer relied on Lewis’s
statement to a staff member on one occasion that in fact he had had no prior positive PPD
tests, nor had he ever suffered an allergic reaction to a PPD test. The Hearing Officer
further noted that prison staff had assured Lewis at the time of his refusal that the PPD
test posed no risk of harm to him. The Hearing Officer further found that Lewis’s
medical file contained no evidence to corroborate his assertion of a prior allergic reaction.
The Hearing Officer sanctioned Lewis to the loss of 27 days of good conduct time and 60
days of commissary privileges, and to disciplinary confinement for 15 days.
Lewis, who is now incarcerated in Pennsylvania, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle
District of Pennsylvania, seeking the restoration of his good conduct time. In addition to
setting forth his claim of a violation of his right to due process in connection with the loss
of his good conduct time, he also asserted that he had exhausted his administrative
remedies. He asserted that he had appealed the decision of the Hearing Officer to the
Mid-Atlantic Regional Director and to National Inmate Appeals, and that those appeals
had been denied.2 The BOP submitted a response and argued that the § 2241 petition was
meritless and should be denied.
2
We note that the National Inmate Appeals Acting Administrator responded to Lewis’s
textual argument by explaining that P.S. 6190.04 states that an inmate may not request to
substitute a chest x-ray in place of a skin test, and that the only exception to this rule is
3
In an order entered on October 7, 2016, the District Court denied the habeas
corpus petition on the merits. In a thorough Memorandum, the Court discussed the
applicable law, reviewed the evidence presented at Lewis’s disciplinary hearing and the
Hearing Officer’s findings and conclusions, and concluded that Lewis was afforded all of
his procedural rights, and that “some evidence” supported the decision of the Hearing
Officer. Accordingly, the District Court concluded, Lewis had failed to make out a due
process violation.
Lewis appeals. We have jurisdiction under 28 U.S.C. § 1291. See Burkey v.
Marberry, 556 F.3d 142, 146 (3d Cir. 2009) (certificate of appealability not required to
appeal from denial of § 2241 petition). Our Clerk granted Lewis leave to appeal in forma
pauperis and advised him that the appeal was subject to summary dismissal under 28
U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P.
10.6. He was invited to submit argument in writing, but he has not done so.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. A
challenge to the BOP’s execution of a sentence, including the sanction of loss of good
conduct time, is properly brought under 28 U.S.C. § 2241. See Woodall v. Federal
Bureau of Prisons, 432 F.3d at 235, 241-43 (3d Cir. 2005). We exercise plenary review
over the District Court’s legal conclusions and review its factual findings for clear error.
See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000).
where there is a medical contraindication. The Acting Administrator stated that: “Staff
reviewed your medical record and found no evidence of severe allergic reaction to TB
skin testing.” Petition, Exhibit “D.”
4
Due process provides certain procedural protections at a prisoner’s disciplinary
hearing, Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974), as do the governing
regulations, see 28 C.F.R. § 541.5, et seq., but, as explained by the District Court, Lewis
received all of the process he was due. He received advance written notice of the charge,
and he was not prevented in any way from presenting his medical justification defense at
his disciplinary hearing. The administrative record shows that Lewis was fully aware of
his rights in connection with the hearing. Also, the Hearing Officer fully considered all
of the evidence and fully explained his decision to sanction Lewis for refusing to undergo
the PPD skin test. Lewis was then notified of his right to appeal, and he took advantage
of that right.
Furthermore, the findings of a Disciplinary Hearing Officer must be supported by
“some evidence in the record,” Superintendent, Massachusetts Correctional Inst. v. Hill,
472 U.S. 445, 454-56 (1985), but again, as explained by the District Court, the standard
was met in Lewis’s case. Lewis’s statements about his history with the PPD skin test
were inconsistent and he does not have a documented history of a severe previous
reaction to the PPD skin test. Thus, the Hearing Officer’s conclusion that Lewis’s refusal
to undergo the PPD test was unjustified was supported by “some evidence.” We “need
only find that the [Hearing Officer’s] decision had ‘some basis in fact’ in order to affirm
the decision as comporting with the Due Process Clause.” Denny v. Schultz, 708 F.3d
140, 145 (3d Cir. 2013) (quoting Hill, 472 U.S. at 456). The administrative record shows
that the Hearing Officer believed that Lewis had recently “contrived” the defense of a
prior allergic reaction. The Hearing Officer nonetheless sought out prison medical staff
and asked for clarification. Specifically, the Hearing Officer asked that medical staff
5
review Lewis’s medical records for documentation of a severe previous reaction. The
records were reviewed by a nurse and she reported back to the Hearing Officer that there
was no documentation of a severe previous reaction. Lewis’s due process claim is thus
without merit.
We note that, in his Traverse to the BOP’s response to his § 2241 petition, Lewis
challenged the Hearing Officer’s weighing of the evidence. He noted that he had
previously had a chest x-ray at a BOP institution (and at a state institution in Brazoria
County, Texas). He also appeared to argue that localized swelling and a small blister at
the injection site qualifies as a medical contraindication to future PPD testing. Neither of
these assertions undermines the Hearing Officer’s decision. The administrative record
shows that the Hearing Officer was aware of the existence of a recent negative chest x-
ray in Lewis’s BOP file but deemed it insufficient under P.S 6190.03 to justify Lewis’s
refusal. In addition, Lewis cited to no authority for his assertion that localized swelling
and a small blister at the injection site constitutes a “severe” previous reaction and is thus
a medical contraindication to a PPD skin test. P.S. 6190.03, in fact, lists as examples of a
severe reaction “whole arm swelling” or “severe blistering.” Lewis’s Traverse and
supporting exhibits show nothing of the sort. Lewis also raised a new argument in his
Traverse that prison officials lack the authority to “force” more than one PPD skin test on
an inmate within a one-year period, but the regulation he cited states only that “[t]he
Bureau conducts [TB] screening for each inmate annually as medically indicated.” 28
C.F.R. § 549.12(b)(2). We are not persuaded that this regulation or P.S. 6190.03, which
states that “[a]ll inmates without prior TB infection must be screened annually for newly
6
acquired TB infection,” prohibit prison authorities from scheduling annual PPD testing
unless a full calendar year has passed since the inmate was last tested.
For the foregoing reasons, we will summarily affirm the order of the District Court
denying Lewis’s petition for writ of habeas corpus.
7