REVISED - June 19, 2000

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 99-31200

(Summary Calendar)

_________________

THOMAS RAYMOND HENSON,

Plaintiff - Appellant,

versus

US BUREAU OF PRISONS,

Defendant - Appellee.

Appeal from the United States District Court

For the Western District of Louisiana

June 16, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:

Correctional officers found a tobacco pipe containing a residue which field tested positive for

marijuana on federal prisoner Thomas Raymond Henson. The officers instituted disciplinary

proceedings against him for possession of marijuana. Henson requested a urinalysis test, which came

back negative, but the Bureau of Prisons (“BOP”) denied his request to retest the pipe residue at his1 Henson was also stripped of thirty days of visiting time, commissary time, and telephone privileges,

and he was placed in administrative segregation for fifteen days. He only challenges his loss of good time credit on

appeal.

-2- own expense. After a hearing, he was found guilty and his punishment included the loss of fourteen

days of good time credit. 1

Henson filed this petition for habeas corpus relief under 28 U.S.C. § 2241 after exhausting

his administrative remedies, arguing that BOP violated his due process rights when it stripped him

of his good time credit without allowing him to retest the pipe residue. He now appeals the district

court’s denial of his petition. We review the district court’s legal conclusions d e novo and its factual

findings for clear error. See Royal v. Tombone , 141 F.3d 596, 599 (5 th Cir. 1998).

BOP does not challenge the district court’s conclusion that Henson had a statutorily-created

liberty int erest in his good time credit. S ee Madison v. Parker

, 104 F.3d 765, 768 (5 th Cir. 1997)

(noting that, while “[t]he Constitution does not guarantee good time credit for satisfactory behavior

while in prison,” “some states create such a right” through sta tutes creating a ri ght to good ti m e

credi t which can be revoked for misconduct). When a prisoner has a liberty interest in good time

credit, revocation of such credit must co mply wit h minimal procedural requirements. S ee

Superintendent, Mass. Correctional Inst. v. Hill

, 472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d

356 (1985) (noting the usual procedural requirements which must be observed—noti ce, an

opportuni ty to present evidence, and written findings in support of the ruling—and stating that “some

evidence” must support the ruling). These requirements are flexible, however, and must necessarily

be balanced against legitimate penological interests. S ee id. ; Wolff v. McDonnell

, 418 U.S. 539, 556,

94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (“Prison disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”).-3-

Thus, prison officials can limit the evidence a prisoner presents when they can articulate legitimate

reasons for doing so. S ee Ponte v. Real

, 471 U.S. 491, 495-98, 105 S. Ct. 2192, 85 L. Ed.3 (1985);

cf. Hill

, 472 U.S. at 454, 105 S. Ct. 2768 (noting that due process gener ally requires the

“opportunity, when consistent with institutional safety and correctional goals, to call witnesses and

present documentary evidence in [a prisoner’s] defense”). These reasons include “assuring the safety

of inmates and prisoners, avoiding burdensome administrative requirements that might be susceptible

to manipulation, and preserving the disciplinary process as a means of rehabilitation.” H ill

, 472 U.S.

at 455, 105 S. Ct. 2768.

We have no t previously addressed whether the denial of a drug retest during disciplinary

proceedings, when the prisoner has otherwise been afforded adequate process, violates a prisoner’s

due process rights. Considering the parties’ respective interests in this case, however, it is clear that

BOP did not violate Henson’s ri ght s. BOP has a strong interest in “avoiding burdensome

administrative requirements that might be susceptible to manipulation” and in “act[ing] swiftly on the

basis of evidence that might be insufficient in less exigent circumstances.” I d. at 455-56, 105 S. Ct.

2768. BOP’s justificat

io ns for the test make clear that its denial was premised on these concerns.

It denied Henson’s retest request because he failed to identify reliabilit y or execution problems with

the first test, and because it was no t even clear that sufficient residue remained in the pipe for a

second test.

On the other hand, Henson identified no specific need for the retest (either by showing that

the test is unreliable or that it was improperly administered) or any case law supporting a general right2 Several courts have rejected similar claims. S ee Koenig v. Vannelli

, 971 F.2d 422, 423 (9 th Cir. 1992)

(holding that a prison could deny a prisoner’s request to retest a drug use test, and noting that this was justified by the

burden retests would impose and by the fact that not all prisoners could afford retests); Spence v. Farrier

, 807 F.2d 753,

755-57 (8 th Cir. 1986) (rejecting a challenge to the use of drug tests without confirmatory retesting); Hoeppner v. Iowa

, 379 N.W.2d 23, 25-26 (Iowa Ct. App. 1985) (same).

3 As noted, Henson was found in an area where drug use was reported, he was observed with bloodshot

eyes and a flushed face, his pipe smelled of marijuana, and he admitted owning it and lending it to others. The pipe

field tested positive on the Narcotics Identification Kit (“NIK”) test “E”. Henson’s only challenges to the reliability

or execution of this test are conclusory and unpersuasive. He argues that the testing officer obtained two instances of

false positives in prior cases, without submitt ing support for this assertion, and he notes that the testing officer

conced ed in his affidavit that, although BOP does not have formal training procedures for the test, the officer has

performed the test numerous times by following the instructions provided with the test kit. In light of the officer’s

affidavit indicating the frequency with which he and BOP use the test, and BOP’s citation of decisions where the test

was upheld as reliable, Henson’s unsubstantiated challenge is unpersuasive. S ee, e.g.

, United States v. Sanchez , 50

C.M.R. 450, 453-55 (A.C.M.R. 1975) (allowing a NIK test and quoting literature on its reliability ).

The only evidence which arguably weighed in Henson’s favor was his negative urinaly sis test. Given that he

was charged with possession rather than use, however, this evidence only minimally weighed in his favor.

-4- to retest positive drug results. 2 Given that there was “some evidence” supporting the punishment, 3

Hill , 472 U.S. 456, 105 S. Ct. 2768, and that there would still be “some evidence” even if Henson

obtained a contradictory result from a retest, Henson had no due process right to retest the pipe.

AFFIRMED.