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Prisoner's Disciplinary Conviction for Possession of Unauthorized Medication Affirmed

The U.S. Eighth Circuit Court of Appeals, affirming the U.S. District Court
of Minnesota, held that a federal prisoner could be disciplined for
possessing psychotropic medications at one prison that were prescribed for
him at a different prison.

Daniel Wesley Allen is a prisoner at Federal Medical Center at Rochester,
Minnesota (FMC-Rochester), a prison of the Federal Bureau of Prisons (BOP).
During a shakedown, a guard found 160 pills of the antidepressant Doxepin,
100 mg, in a jar labeled "Flax Oil 1000." Allen was charged with
"possession of narcotics or related paraphernalia not prescribed for the
individual by the medical staff." At a disciplinary hearing, Allen raised
as a defense that he had been prescribed Doxepin at Rochester and at
another BOP prison, Taft, at which he was previously incarcerated. Allen
was convicted of the charge and lost 40 days good-conduct time and was
given a 30-day suspended sentence in disciplinary segregation.
Allen filed a petition for habeas corpus under 28 U.S.C. § 2241. The
district court denied the petition, and Allen appealed.

The Court of Appeals held that Allen's due process rights were not
violated. "[The disciplinary process complied with the scheme set forth in
the federal regulations...." Allen claimed that his signed waiver of the
right to call witnesses was invalid, but the district and appeals courts
held that he failed to prove the claim. The appeals court also held that
the record contained "some evidence" to support the charge that Allen
violated FMC-Rochester and BOP rules by possessing medication not
prescribed by FMC-Rochester medical personnel.

The district court judgment was affirmed. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
Allen v Reese, 52 Fed.Appx. 7 (8th Cir. 2002).

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Related legal case

Allen v Reese

[U] Allen v. Reese, 52 Fed.Appx. 7 (8th Cir. 12/03/2002)


[2] No. 02-2337

[3] 52 Fed.Appx. 7, 2002

[4] December 3, 2002


[6] Appeal from the United States District Court for the District of Minnesota.

[7] Before Loken, Bye, and Riley, Circuit Judges.

[8] The opinion of the court was delivered by: Per Curiam


[10] Submitted: November 27, 2002

[11] In September 2000 Daniel Wesley Allen, an inmate at the Federal Medical Center in Rochester, Minnesota (Rochester), was charged, as relevant, with possession of any narcotics or related paraphernalia not prescribed for the individual by the medical staff. The incident report indicated an officer had conducted a search of Allen's room and found in his bedstand drawer a jar labeled "Flax Oil 1000," which contained 160 pills labeled "Mylan 6410." Further investigation revealed that "Mylan 6410" is Doxepin 100 mg, an antidepressant. At a hearing before a Discipline Hearing Officer (DHO), Allen stated that the medication had been prescribed for him by doctors at both Rochester and Taft, the prison where he was previously incarcerated; and that he had not taken the pills as given at Taft, and had kept some instead, because he wanted to take them only once in a while. The DHO found that the fact the pills were in a jar labeled "Flax Oil" showed Allen was attempting to disguise his possession of prescription pills, which he possessed in sufficient number to cause a fatal overdose to him; that if Allen wanted to reduce his medication, he should have done so through his doctors, not by "hoarding the controlled medication"; and that Allen had committed "the prohibited act of 'possession of drugs not authorized by medical staff,' Code #113." Allen was sanctioned with disallowance of 40 days good-conduct time; and 30 days of disciplinary segregation, which was suspended pending 180 days of clear conduct. Allen unsuccessfully appealed the DHO's determination. He then filed the instant 28 U.S.C. § 2241 petition claiming he was denied liberty without due process, in that his waiver of his right to call witnesses and have a staff representative during the DHO hearing was uninformed and unknowing; and the DHO's findings did not support the charged violation because the DHO substituted "not authorized" for "not prescribed," and Allen was prescribed the medication in his possession. The district court *fn1 denied the petition, holding that Allen had been provided adequate procedural due process protections, and that there was some evidence upon which the DHO could have found that Allen had committed the charged violation.

[12] The federal regulations list as a prohibited act "Code 113-Possession of any narcotics, marijuana, drugs, or related paraphernalia not prescribed for the individual by the medical staff." Sanctions for this violation include disallowance of good-time credit and disciplinary segregation (up to 60 days). See 28 C.F.R. § 541.13, Table 3 (2000).

[13] We agree with the district court that Allen's procedural due process rights were not violated. He was given advance written notice of the charges against him; he waived, through a signed written form, his right to call witnesses and to have a representative present during the hearing; and he received a written report of the DHO's decision setting forth the specific evidence relied on and the reason for the sanction. See Wolff v. McDonnell, 418 U.S. 539, 564-66, 570 (1974) (setting forth limited procedural rights with respect to prison disciplinary action). Allen has not shown that his waiver was involuntary; and the disciplinary process complied with the scheme set forth in the federal regulations, including the preparation of an incident report, the conducting of an investigation, the initial hearing before the disciplinary committee, the hearing before the DHO, and the appeals process, see 28 C.F.R. § 541.11, Table 1 (2000).

[14] We also agree that--despite the substitution of language in the DHO's finding--the record contained "some evidence" to support the charge that Allen possessed drugs not prescribed for him by the medical staff. See Superintendent v. Hill, 472 U.S. 445, 455 (1985) (procedural due process demands that prison disciplinary board findings are supported by some evidence in record). The record shows that Allen's prescription for Doxepin was not renewed at Rochester after July 2000 and Rochester did not carry the Mylan brand. Further, Allen admitted that although the pills were given to him at Taft to take in the pill line, he kept them instead; and he has not shown that he had any prescription which would have allowed him to accumulate and store a potential overdose of pills. Accordingly, we affirm.