by Jacob Barrett

Holding that explicit intent is not necessary to find a prisoner guilty of misconduct, the U.S. Court of Appeals for the Fifth Circuit issued a concerning decision on November 2, 2021, upholding a disciplinary sanction against a federal prisoner in Louisiana after his medical device broke and prison officials blamed him for it.

The prisoner, Gregory Kapordelis, is held by the federal Bureau of Prisons (BOP) at the Federal Correctional Institution in Oakdale, Louisiana. On July 25, 2018, he reported to a medical unit there to notify staff that he broke the mask on his CPAP (continuous positive airway pressure) machine.

Staff members informed Kapordelis that he was not authorized to be in the medical unit, but he remained there for some time before leaving. Anxious to get the device fixed, he returned to the unit later that day, but this time the Operations Lieutenant was called to remove him.

An incident report was filed and the matter referred to the disciplinary hearings officer (DHO) on charges Kapordelis was in an unauthorized area, refused to obey an order, and destroyed, altered or damaged government property valued in excess of $100.

At his hearing, Kapordelis stated that he awoke suffering from a “coughing fit” and, in trying to remove his CPAP mask, it “just snapped.” He contended that he did not deliberately break the mask and that, in the twelve years he had been wearing a CPAP mask, he had never broken one.

Several “statements”—in the form of emails from witnesses responding to inquiries from the DHO—were submitted at the hearing, including one from Dr. Kenneth Russell, the prison physician. The DHO had asked Dr. Russell prior to the hearing whether “it [was] likely an inmate could break a CPAP mask,” and he responded:

“I would have to see it first, some of these are made of hard plastic. Most of them you can [sit] on, and not break them. In general use, unless it is an old mask, or unless it did not fit their face, it would have to be intentional for it to break.”

The DHO also considered a statement recorded in the initial incident report from a CPAP Supply USA representative, who said that “it is far from common for the mask to just break unless it is user error.” Additionally, the DHO inspected Kapordelis’s broken mask.

After receiving this evidence, the DHO issued a report that dismissed the charges against Kapordelis for refusing to obey an order and being in an unauthorized area but sustained the charge for damaging government property. While acknowledging Kapordelis’s assertions to the contrary, the DHO found the statements by the CPAP representative and Dr. Russell supported a finding that Kapordelis damaged the machine in violation of prison rules. She sanctioned the prisoner with a loss of twenty-seven days of good conduct time.

Kapordelis’s administrative appeal was denied, so he filed suit pro se under 28 U.S.C. § 2241 in U.S. District Court for the Western District of Louisiana, claiming his due-process rights had been violated.

The district court began its analysis by noting that “to comport with the requirements of due process,” a prison disciplinary proceeding must provide four safeguards:

(1) “adequate notice of the alleged violation;”

(2) “an opportunity to present evidence;”

(3) “written findings in support of the ruling;” and

(4) “the requirement that on review, ‘some evidence’ support[s] the ruling.”

It was on the last point that the prisoner’s claim failed, the district court said, since his admission that the mask broke in his possession, coupled with the statements from the CPAP representative and Dr. Russell establishing that “this would not ordinarily occur on accident,” were sufficient to support the disciplinary conviction under the ‘some evidence’ standard.

It therefore dismissed Kapordelis’s claim, holding that “[t]he DHO’s findings clearly point[ed] to a finding of intentional damage, as she repeatedly cited Dr. Russell’s statement that the mask generally would not break without an ‘intentional’ act. Kapordelis appealed.

Appeal to the Fifth Circuit

On review the Fifth Circuit first noted that it was “not required to examine the entire record of a disciplinary proceeding, independently assess witness credibility, or weigh the evidence to determine whether ‘some evidence’ supports the DHO’s decision.”

Rather, it said, “we examine whether the finding of guilt has the ‘support of some facts or any evidence at all,’” as required under Gibbs v. King, 779 F.2d 1040 (5th Cir. 1986). “Only when the record is ‘so devoid of evidence that the findings of the [DHO] were without support or otherwise arbitrary’ will we grant habeas relief on this ground,” the Court said.

It agreed with Kapordelis that his “admission” by itself didn’t constitute ‘some evidence’ of intentional misconduct and that the CPAP sales representative’s statement also “[did] not tend to prove or disprove the proposition that Kapordelis intentionally damaged his CPAP mask.” Where his argument faltered, the Court said, was in his failure to marshal any evidence in support of his contention that the mask “just snapped.”

Oddly, while the Court noted there was no evidence that Dr. Russell ever examined Kapordelis’s CPAP mask, it could not “say that these limitations deprive his statement of all evidentiary value.”

“The DHO’s report and subsequent declaration indicate that she considered, among other evidence, both Kapordelis’s broken CPAP mask and Dr. Russell’s statement at the hearing,” the Court said. “Thus, the DHO had the opportunity personally to observe Kapordelis’s CPAP mask and evaluate the caveats in Dr. Russell’s statement against it. This is enough to meet the ‘some evidence’ standard.”

Kapordelis also asserted that the DHO’s finding that he caused damage in excess of $100 was not supported by ‘some evidence’ because he broke only the mask’s “flexible spacebar,” which he said “would likely cost less than $20 to replace.”

The Court again held, however, that Kapordelis failed to present any evidence to support his contention. While evidence was presented at the disciplinary hearing that a CPAP mask is valued at $200, the prisoner “neither provided any evidence of the actual cost to replace the spacebar nor established that the spacebar was detachable and capable of being purchased separately from the more expensive mask.” Based on that, the Court found that the DHO’s determination that Kapordelis caused damage in excess of $100 was supported by “some evidence.”

The Court then affirmed the dismissal of the claim. See: Kapordelis v. Myers, 16 F.4^th 1195 (5^th Cir. 2021).

Notably absent from the Court’s analysis was any consideration whether the CPAP representative had an interest in not admitting his company’s product was defective. But millions of Philips Respironics breathing machines have recently been recalled due to a potential risk of lung injury. Prisoners were left out of this important notice, and prison health care providers are unlikely to provide it. 

Subscribe today

Already a subscriber? Login