REVISED - June 19, 2000

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 99-31200

(Summary Calendar)

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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 officersfound a tobacco pipe containing a residue which field tested positive for

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

proceedings against himfor 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 his
1 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.

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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 de novo and itsfactual

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

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

liberty interest in his good time credit. See Madison v. Parker, 104 F.3d 765, 768 (5th 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 statutes creating a right to good time

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

credit, revocation of such credit must comply with minimal procedural requirements. See

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—notice, an

opportunity to present evidence, and written findingsin support ofthe ruling—and stating that “some

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

be balanced against legitimate penological interests. See 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.”).
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Thus, prison officials can limit the evidence a prisoner presents when they can articulate legitimate

reasons for doing so. See 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 generally requires the

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

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

ofinmates and prisoners, avoiding burdensome administrative requirementsthat might be susceptible

to manipulation, and preserving the disciplinary process as a means of rehabilitation.” Hill, 472 U.S.

at 455, 105 S. Ct. 2768. 

We have not 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 rights. BOP has a strong interest in “avoiding burdensome

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

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

2768. BOP’s justifications for the test make clear that its denial was premised on these concerns.

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

the first test, and because it was not 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 wasimproperly administered) or any case law supporting a generalright
2 Several courts have rejected similar claims. SeeKoenig v. Vannelli, 971 F.2d 422, 423 (9th 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 (8th 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 wasfound in an area where drug use wasreported, 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 submitting support for this assertion, and he notes that the testing officer

conceded 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. See, 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 arguablyweighed in Henson’s favor was his negative urinalysis test. Given that he

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

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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.