No. 51208-1-I.The Court of Appeals of Washington, Division One.
Filed: September 22, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Date first document (petition, etc) was filed in Court of Appeals: 10/10/2002
Counsel for Petitioner(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Cody Jonas (Appearing Pro Se), 779382, Monroe Correction Center, P.O. Box 888, Monroe, WA 98272-0888.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Jennifer L Treadwell Karol, Attorney General of Washington, P.O. Box 40116, Olympia, WA 98504-0116.
PER CURIAM.
Cody Jonas has filed a personal restraint petition challenging a Department of Corrections (DOC) determination that he received a positive test for use of unauthorized drugs — marijuana — and the resultant loss of good time credits. He argues that the `some evidence’ standard of proof should not apply, or alternatively, that the decision was arbitrary and capricious and violated due process. We conclude that the some evidence standard is applicable, that the decision was neither arbitrary nor capricious, and there was no violation of due process. Accordingly, we deny the petition.
FACTS
Petitioner Cody Jonas is currently in the custody of DOC after a conviction of first degree robbery. On July 5, 2002, DOC administered a urinalysis test to Jonas to screen for use of unauthorized drugs. The screening test had a stated cutoff level of 50 nanograms per milliliter (ng/ml) for the presence of THC (marijuana). The result of this test was positive. In accordance with DOC policy, a second, confirming test was performed. This test yielded a finding of 32 ng/ml of THC.
The toxicology report lists the results, showing `Positive’ for `THC 50 w/quant.’ It lists a screening cutoff of 50 ng/ml, a `Confirmation Cutoff of 15 ng/ml’, and `THC 32 ng/ml’ for Jonas’s results, as confirmed by `GCMS Quantitations’. Jonas was charged with using an unauthorized drug. At a disciplinary hearing, Jonas pled not guilty and pointed out that his test result of 32 ng/ml was below the 50 ng/ml screening cutoff standard stated in the report, which reflects DOC policy. The hearing officer stated that the word `positive’ on the lab report was the only thing he was looking at. He also stated that the confirmation test had a different cutoff — 15 ng/ml — and Jonas’s 32 ng/ml was above that cutoff. He found Jonas guilty and imposed sanctions of 10 days cell confinement, 10 days of segregation, and loss of 90 days good time credit. Jonas appealed; that appeal was denied. Jonas then filed a personal restraint petition in this court; the petition was referred to this panel for determination.
DISCUSSION
This court will grant a personal restraint petition if the petitioner shows `that he is presently restrained due to constitutional error and that the error worked to his actual and substantial prejudice.’[1]
`{R}eview of prison disciplinary proceedings is properly limited to a determination of whether the action taken was so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding.’[2]
Arbitrary and capricious action is not established merely by failure to comply with technical hearing procedures[3] ; it is action taken `without consideration and in disregard of facts and circumstances.’[4]
Jonas alleges that DOC violated his right to due process when the hearing officer found him guilty of the infraction based on the initial screening drug test when the second test failed to confirm that he had a sufficient amount of THC in his system to satisfy DOC’s requirements for a positive result.
Jonas argues in his supplemental brief that the some evidence standard should not apply in this case, because the second drug test failed to confirm the results of the first. He also argues that the decision violated due process because the hearing officer ignored the results of the second test in reaching his decision. We conclude that the some evidence test is applicable in this case, and conclude that it was satisfied. Upon entering the finding of guilt, the hearing officer imposed sanctions, including loss of 90 days of good time credits. An inmate has a liberty interest in good time credits.[5] `The evidentiary requirements of due process are satisfied if there is `some evidence’ in the record to support a prison disciplinary decision revoking good time credits.’[6] We are not required to review the entire record, independently assess witness credibility, or weigh evidence to determine whether this standard has been met; rather, it is satisfied if there is any evidence in the record that supports DOC’s decision.[7] It is a serious disciplinary infraction for an inmate to receive a positive test for use of unauthorized drugs.[8]
DOC policy sets out authorized limits for screening tests particular drugs; for THC, the active ingredient in marijuana, this authorized limit is 50 ng/ml.[9] The screening test used in this case had the required cutoff level of 50 ng/ml. If a screening test yields a positive result for any drug, DOC policy requires that a second, confirming test be administered; the policy sets out no authorized level for the confirming test and a plain reading of the policy shows that the 50 ng/ml curoff is limited to the screening test.[10] The confirming test used in this case had a cutoff level of 15 ng/ml.[11] This test yielded a result of 32 ng/ml, which was above the cutoff level for that test.
We conclude that the some evidence standard was met in this case. In accordance with DOC policy, the initial test yielded a result showing the presence of more than the required 50 ng/ml of THC; because the confirming test had no stated required cutoff level, the result showing the presence of an amount greater than the cutoff level for that test was sufficient to confirm the initial test results. These test results met the requirement of some evidence of guilt, and the hearing officer’s finding based on those results was neither arbitrary and capricious nor did it violate due process.[12]
CONCLUSION
The personal restraint petition is denied.
SCHINDLER and GROSSE, JJ., concur.