Here, the record contains evidence of the discovery of the bags and of the positive reading detected by the Alco-Sensor III on contraband found in petitioner's cell. That evidence is sufficient to satisfy the governing standard, and the failure to require additional testing did not deny petitioner due processs. See, e.g., Staples v. O'Brien, 2016 WL 8732324, *8 (N.D.W.Va. Jul. 22, 2016)(evidentiary standard met where DHO considered memorandum reflecting liquid was tested with Alco-Sensor III and registered positive reading, although no photograph of reading was taken to document); Collins v. Martinez, 2010 WL 4272923, *9 (M.D.Pa. Oct. 25, 2010)(same where test of prisoner's coat, soaked with intoxicants after bag ruptured, yielded positive reading on Alco-Sensor although breathalyzer reading did not detect alcohol); and Henderson v. Morris, 2007 WL 4289978, *3 (E.D.Tex. Dec. 3, 2007)(same where contents of bottle tested positive by Alco-Sensor IV, and stating "constructive possession provides sufficient evidence of guilt when relatively few inmates have access to the area"). Likewise, because it does not appear that petitioner specifically presented this claim at the hearing, where he stated he was innocent of the charge, or that he presented it in his administrative appeals, the claim is not properly exhausted.
This view has been adopted by numerous courts in this district. See, e.g., Ogman v. Ebbert No. 10-1342, 2010 WL 4922889, *3 (M.D.Pa. Nov. 12, 2010); Collins v. Martinez, No. 09-2454, 2010 WL 4272923 (M.D.Pa. October 25, 2010); Berlin v. Bledsoe, 2010 WL 3528571 (M.D.Pa. September 8, 2010) Cullum v. Bledsoe, Civil No. 09-2385, 2010 WL 2521035 (M.D.Pa. Jun. 15, 2010); Ramos v. Holt, 2010 WL 2471707 (M.D.Pa. May 5, 2010); McDonald v. Obama, 2010 WL 1526443 (M.D.Pa. March 14, 2010); Wires v. Bledsoe, No. 09-2247, 2010 WL 427769 (M.D.Pa. Feb. 3, 2010). Recognizing the broad discretion expressly conferred to the Bureau of Prisons by statute, these cases consistently hold that these policies do not violate the Act.
First, and obviously, this Court is not bound by the Pennsylvania court's construction. Second, a review of cases decided subsequent to Krueger shows that no other district court has followed such an extreme interpretation of the SCA; indeed Krueger has been rejected consistently by the district courts in its own district of the Middle District of Pennsylvania. See, e.g., Ogman v. Ebbert, 2010 WL 4922889 (M.D.Pa. Nov. 12, 2010); Collins v. Martinez, 2010 WL 4272923 (M.D.Pa. Oct. 25, 2010); Berlin v. Bledsoe, 2010 WL 3528571 (M.D.Pa. Sept. 8, 2010); Ramos v. Holt, 2010 WL 2471707 (M.D.Pa. May 5, 2010); McDonald v. Obama, 2010 WL 1526443 (M.D.Pa. March 14, 2010); Wires v. Bledsoe, 2010 WL 427759 (M.D. Pa. Feb. 3, 2010). These cases rely in part upon the Eighth Circuit's precedential ruling in Miller v. Whitehead, 527 F.3d 752, 757-758 (8th Cir. 2008), which held, inter alia, that the BOP's policy of requiring a heightened standard for RRC commitments longer than six months did not conflict with the SCA requirement of an individual determination for each inmate.