IN THE SUPREME COURT OF MISSISSIPPI CERTIFICATE OF INTERESTED PARTIES

Transcription

1 IN THE SUPREME COURT OF MISSISSIPPI CHARLES GREEN, Appellant Versus MISSISSIPPI DEPARTMENT OF CORRECTIONS and Christopher Epps, Commissioner, James M. Holman Superintendent, and Chandra Berryman, Legal Claims Adjudicator. NO.2011-CA [pili Appellee CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies pursuant to Mississippi Rules of Appellate Procedure 28(a)(I) that the following persons have an interest in the outcome ofthis case. These representations are made in order that the Justices of this Court may evaluate possible disqualification or recusal. Charles Green Appellant MDOC # Central Mississippi Correctional Facility Post Office Box Hwy468 Pearl, MS 39208

2 Honorable John H. Emfinger Trial Court Judge P.O. Box 1885 Brandon, MS Honorable James M. "Jim" Norris Mississippi Department of Corrections P.O. Box 36 Parchman, MS So CERTIFIED, this the 15th day of May, / ~ II

3 STATEMENT REQUESTING QRAL ARGUMENT Oral argument is requested before the Mississippi Supreme Court in this case. Mr. Green has not received any evidentiary hearing in this case, in which the Mississippi Department of Corrections disciplined him on the basis of a drug "screening" test which, according to its manufacturer, is not scientifically appropriate for final determinations of the presence of drugs. Moreover, the Mississippi Department of Corrections continues to disregard the due process rights of inmates despite this Court's prior rulings. Therefore, undersigned counsel believes that oral argument will greatly aid the Court in the disposition of this case. III

4 TABLE OF CONTENTS Certificate of Interested Parties... i Statement Requesting Oral Argument... iii Table of Contents... iv Statement of the Record... v Table of Authorities... vi Statement of Issues... 1 Statement of the Case... 1 Procedural History... 1 Statement of Facts... 3 Law and Argument... 5 Conclusion... 8 Certificate of Service... 9 IV

5 STATEMENT OF THE RECORD The trial court record from Charles Green v. Mississippi Department of Corrections Rankin Circuit Court Civil Action No E, Mississippi Supreme Court Case #2011-CA consists of one volume of Clerk's papers numbered I to III and will be cited to as C.P.. The Appellant's Record Excerpts will be labeled as R.E. v

6 TABLE OF AUTHORITIES Cases Carson v. Hargett, 689 So. 2d 753 (Miss. 1997)... 6,7 Edwards v. Booker, 796 So 2d 991 (Miss. 2001)... 5,6,7,8 Siggers v. Epps, 962 So. 2d 78 (Miss 2007)... I, 5, 7 Statutes Miss. Code Ann ,5,6 VI

7 STATEMENT OF THE ISSUES I) Whether the actions of the MDOC were arbitrary and capricious when it (a) refused to timely administer a scientifically appropriate test to determine whether Charles Green had used illegal drugs; and (b) refused to allow Charles Green to present documentary evidence regarding the limitations on the drug "screening" test at his disciplinary hearing. 2) Whether Charles Green was denied due process oflaw when the MDOC and the Circuit Court of Rankin County refused to allow him to present evidence of his innocence at a hearing. 3) Whether the Circuit Court erred in holding that Charles Green could not be disciplined by the MDOC without affording him due process oflaw, where this Court has held that Mississippi statutory law creates a liberty and property interest that implicates the Due Process Clause of the Fourteenth Amendment. STATEMENT OF THE CASE ProceduraIJl~to~ Charles Green, is incarcerated as prisoner number at Central Mississippi Correctional Facility, in the custody of the Mississippi Department of Corrections. In his Complaint for ludicial Review, Mr. Green brought this action against the Mississippi Department of Corrections and Christopher Epps in his official capacity as Commissioner, lames M. Holman in his official capacity as Superintendent of Central Mississippi Correctional Facility and Chandra Berryman in her official capacity as claims adjudicator of Central Mississippi Correctional Facility. The Circuit Court had jurisdiction over the subject matter and the parties to this action pursuant to Mississippi Code Annotated Section Siggers v. Epps, 962 So. 2d 78, 81

8 (Miss 2007). On November 22, 2010 at approximately 1 :12 p.m., Mr. Green submitted to a drug screen, which is standard procedure for prisoners before a Family House visit. MDOC Lieutenant N unn reported that the "Toxcup Drug Screen Cup" showed that Charles Green tested positive for THC. C.P. 12. As a result, Charles Green was denied use ofthe Family House. Charles Green insisted that he did not injest illegal drugs and requested a blood test or more accurate test. MDOC refused this request and no additional testing was performed. C.P. 14 On Dec. 1, 2010, Lieutenant Evans conducted what purported to be a "disciplinary hearing" and issued a Rule Violation Report. On Dec. 5, 2010, Charles Green appealed the issuance ofa Rule Violation Report. C.P On December , Charles Green was given a blood test ordered by Dr. John Dial. The blood test was negative for all five drug profiles. C.P. 29. Charles Green received a response to the second step appeal on June 1,2011. C.P Charles Green sought judicial review of the RVR and the adverse decisions of the Mississippi Department of Corrections pursuant to Mississippi Code Annotated Section in Rankin County Circuit Court on June 21, c.p On July 28, 2011, Circuit Court Judge John H. Emfinger affirmed the decision of the MDOC finding, "the actions of the MDOC were supported by substantial evidence, were not arbitrary or capricious, were not beyond the agency's scope of powers, and did not violate the constitutional or statutory rights of Charles Green." C.P. 90. On August 4,2011, Charles Green filed Plaintiffs Rule 529b) and 59(e) motion to alter or amend Judgment, or for reconsideration of Order of Jul7 28, CPo on November 3, 2011, Circuit Judge John H. Emfinger denied Plaintiffs Rule 52(b) and 59 (e) Motion to Alter or 2

9 Amend Judgment, or for Reconsideration of Order of July 28, C.P Charles Green filed a timely Notice of Appeal and Designation of the Record. CP Statement Of Facts In late November 2010, Charles Green was scheduled for a visit with his wife at the Family House at the Central Mississippi Correctional Facility. In 31 years in MDOC custody, Mr. Green has been the quintessential "model prisoner." He has had few rules violations and was recommended to serve as a Governor's Mansion Trustee by the Department, a recommendation Mr. Green declined because at his age, he was concerned that he could not perform his share of the physical duties of the position. On November 22,2010 at approximately I :12 p.m., Charles Green was drug tested prior to going to the Family House. This is a requirement for all offenders prior to a Family House visit. According to Lt. Nunn, the "Toxcup Drug Screen Cup" showed that Charles Green tested positive for THC. c.p. 12. As a result, Charles Green was denied use of the Family House. At this time, Charles asked for the Toxcup Drug Screen Cup to be verified using a blood test. c.p. 14. The MDOC denied this request. Mr. Green's concern about thc scicntific validity ofthc "Toxcup Drug Screcn Cup" was well founded. Indeed the ToxCup Drug Screen Quick Reference Guide notes that "this test is only a screening device" and "Send preliminary positive or uncertain results to a laboratory to confirm results." C.P. 39. The Toxcup Drug Screen Cup Package Insert states: "The ToxCup Drug Screen Cup is only the first step in a two-step process for detecting drugs of abuse in urine. The first step is screening the urine. The second step is confirming the results." C.P. 41. On Dec. 1,2010, Lt. Evans conducted what purported to be a "disciplinary hearing" and issued a Rule Violation Report. On Dec. 5, 20 I 0, Charles Green appealed the issuance of a Rule 3

10 Violation Report C.P On his own, Charles Green submitted a sick call request and asked to be taken to the clinic. c.p. 14. On December , Charles Green was given a blood test ordered by Dr. John Dial. The blood test was negative for all five drug profiles. C.P. 29. Mr. Green has been prescribed two drugs Ranitidine C.P. 50 and Naproxen C.P. 51 by MDOC staff physicians. Both drugs are known to produce false positive results on drug tests, Ranitidine for amphetamines and Naproxen for THC or marijuana. C.P , C.P Mr. Green attempted to present this evidence through the ARP process but the MDOC did not consider this evidence; nor did they grant a hearing. On December 5, 2010, Charles Green filed a first step appeal C.P and when he did not receive a response, he filed a second step appeal on March 7, C.P Charles Green received a response to the second step appeal on June 1,2011. C.P As a result of the disciplinary ruling, Mr. Green lost Family House privileges. He was also referred to the Behavior Modification Program and transferred from Central Mississippi Correctional Facility to the Mississippi State Penitentiary at Parchman. Thus, the Decision ofthe Department of Corrections was based on the results of an unconfirmed ToxCup Drug Screen Cup test. The only follow up test given, thc Dcc. 13,2010, blood test by Dr. Dial was negative for all 5 drugs. C.P

11 LAW AND ARGUMENT This Court has jurisdiction over the subject matter and the parties to this action pursuant to Mississippi Code Annotated Section The rule specifically provides: Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure under Sections through may, within thirty (30) days after receipt of the agency's final decision, seek judicial review of the decision. Siggers v. Epps, 962 So. 2d 78, 81 (Miss 2007). Mr. Green has exhausted his administrative remedies and filed timely. Charles Green offered to show that the MDOC's decision was "unsupported by substantial evidence; arbitrary or capricious; beyond the agency's scope or powers; or volatile of the constitutional or statutory rights of the aggrieved party." Edwards v. Booker, 796 So.2d 991, 994(,10) (Miss.2001). Charles Green's due process rights were violated in that he was unable to present evidence of his innocence of the charge and never had a full and fair hearing on the charge. At the time he was tested by the Toxcup Drug Screen, Charles Green asked for the test to be verified by additional testing. C.P. 14. Indeed, the ToxCup Drug Screen Quick Reference Guide notes that "this test is only a screening device" and "Send preliminary positive or uncertain results to a laboratory to confirm results." C.P. 39. The Toxcup Drug Screen Cup Package Insert states: "The ToxCup Drug Screen Cup is only the first step in a two-step process for detecting drugs of abuse in urine. The first step is screening the urine. The second step is confirming the results." C.P. 41. Additional testing was not performed. Mr. Green filled out a sick call request and was taken to the clinic. C.P. 14. On 5

12 December 13,2010, Mr. Green was given a blood test by Dr. John Dial. The Test was negative for five drugs. C.P. 29 The delay between the ToxCup Drug Screen and the blood test was not under the control of Mr. Green. Mr. Green attempted to present this evidence through the ARP process but he was never provided a hearing. The Decision of the Department of Corrections was based on the results of an unconfirmed ToxCup Drug Screen Cup test. The only follow up test given, the Dec. 13,2010, blood test by Dr. Dial was negative for all 5 drugs. C.P. 29. Tellingly, in the Circuit Court Answer the MDOC Defendants pled that they "can neither admit or deny for lack of information or knowledge" that Mr. Green has been prescribed two drugs Ranitidine and Naproxen by MDOC staff physicians. C.P. 66. In fact, both drugs are known to produce false positive results on drug tests, Ranitidine for amphetamines and Naproxen for THC or marijuana. C.P , In the Circuit Court, the State argued that a convicted felon is afforded limited due process in prison discipline. They cited Carson v. Hargett, 689 So. 2d 753 (Miss. 1997) in support of this proposition. However, Carson is a 1997 decision in which the prisoner filed a petition for writ of habeas corpus to seek relief. In a 2001 decision, this Court held that Miss. Code Ann to (1999), authorizes MDOC to adopt administrative review procedures and creates a statutory scheme to which due process rights attach. Edwards v. Booker, 796 So 2d 991, 995 (Miss. 2001). The Edwards Court held: The right to judicial review of final decisions of the classification committee is conferred by statute. Because Edwards exhausted his administrative remedies, the circuit court has jurisdiction to hear his appeal, and this case is remanded for a factual determination of whether Edwards in fact violated the terms of his house arrest. 6

13 Id. at 998 ~36. Thus, under Edwards, the state statutory scheme creates procedures which cannot be arbitrarily administrated consistent with the Fourteenth Amendment. In Siggers v. Epps, 962 So. 2d 78, 81 (Miss 2007), this Court applied Edwards to rules violations appeals. As in Edwards, the MDOC argued that there is no due process right to appeal its administrative decisions to the circuit courts. But this Court held squarely that "this case parallels Edwards." Id. at 81 ~7. This Court held that the Legislature had created a system for administrative and judicial review ofthe MDOC's decisions regarding prisoners in its custody, and that prisoners had a due process right to avail themselves of those procedures. Id. It is curious that the MDOC continues to rely on Carson, a case denying habeas corpus relief, when this Court, in Edwards and Siggers, has distinguished Carson where the prisoner has exhausted the MDOC administrative remedies system. One wonders how many prisoners, unrepresented by counsel, have been discouraged from seeking judicial review, or had judicial review denied, due to this reliance on inapposite and overruled precedent. This case is important for reasons beyond Charles Green's individual case: this Court should make clear that the MDOC must permit prisoners to avail themselves of the appellate system that our Legislature has enacted. Like Edwards, Charles Green sought to present evidence to the Circuit Court which proved that he was innocent of the charge against him and thereby proved the arbitrary nature of the MDOC's disciplinary ruling.. Green further sought to show that the ToxCup test produced a false positive which resulted in Green's loss of privileges. In Edwards, this Court reversed and remanded the case to the Circuit Court holding that: 7

14 The classification committee acted arbitrarily and capriciously in refusing to allow Edwards to present witnesses and documents in violation of its own procedures and in refusing to allow his retained counsel to participate in the hearing. Edwards, 796 So. 2d at 998. The same result should be reached in this case. CONCLUSION For these reasons, this Court should, on review, reverse the decision of the Circuit Court of Rankin County and either (a) remand this case for an evidentiary hearing in the Circuit Court or (b) render judgment on appeal directing the Mississippi Department of Corrections to restore Mr. Green to the condition he was in before November 22, 20 I 0, including removal of the disciplinary finding from his official record. Respectfully submitted, this the 15 th day of May, CHARLES GREEN BY: S f~~ P.O. Box Flora, MS (phone) (fax) Attorney for Appellant 8

15 CERTIFICATE OF SERVICE I hereby certify that I have caused a true and correct copy of the above and foregoing Brief of Appellant to be mailed, first class mail, postage prepaid, to: This the 15th day of May, Honorable James M. "Jim" Norris, Attorney Senior Mississippi Department of Corrections P.O. Box 36 Parchman, MS !-rlK~,f~ 9

16 IN THE SUPREME COURT OF MISSISSIPPI CHARLES GREEN, Appellant Versus NO.2011-CA MISSISSIPPI DEPARTMENT OF CORRECTIONS and Christopher Epps, Commissioner, James M. Holman Superintendent, and Chandra Berryman, Legal Claims Adjudicator. Appellee Appeal from the Circuit Court of Rankin County, Mississippi CERTIFICATE OF SERVICE I hereby certify that I have caused a true and correct copy of the above and foregoing Brief of Appellant to be mailed, first class mail, postage prepaid, to: Honorable John H. Emfinger Trial Court Judge P.O. Box 1885 Brandon, MS This the 26th day of May, J(UVtYM~