Prison Discipline: MCMILLEN V. KENTUCKY DEPT OF CORRECTIONS (COA 8/24/2007)

MCMILLEN V. KENTUCKY DEPT OF CORRECTIONS
CRIMINAL:  PRISON DISCIPLINE
2005-CA-002478
PUBLISHED: AFFIRMING
PANEL: PAISLEY PRESIDING; THOMPSON, VANMETER CONCUR
COUNTY: LYON
DATE RENDERED: 08/24/2007

Circuit Court properly dismissed pro se inmate’s petition seeking a declaration of rights following his placement in disciplinary segregation for a total of 135 days. Inmate was not entitled to discovery relating to witnesses from the out of state laboratory used to test his urine samples and documentation and information relating to the testing laboratory procedures. Further, there was no violation of of the federal Health Insurance Portability and Accountability Act ("HIPAA").

Minimal due process is all that is required regarding a person detained in lawful custody. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In the context of a prison disciplinary proceeding, the state is only required to provide advance written notice of the charges; provide an opportunity to call witnesses and present evidence when those events remain consistent with institutional safety and correctional goals; and to provide a written statement from the fact finder of the evidence relied on and the reasons for the disciplinary action. Simply because disciplinary segregation involves different physical conditions and limited privileges does not mean that a prisoner maintains a liberty interest in freedom from that form of segregation. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The trial court properly dismissed the HIPAA claim pursuant to CR 12.02(a) for lack of subject matter jurisdiction. HIPAA does not create a state based private cause of action. See 42 U.S.C. § 1320d. Even assuming the general applicability of HIPAA, 45 C.F.R. § 164.512(k)(5) governs the applicability of HIPAA to correctional institutions and permits the urinalysis testing and reporting of the results in this matter.

Digested by Scott C. Byrd
www.olginandbyrd.com

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