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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

 

 

RAUL SOTO,

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                        Plaintiff,

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            -against-

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86 Civ. 1916 (KC)

 

 

 

GORDON LORD, PROGRAM COORDINATOR OF DOWNSTATE CORRECTIONAL FACILITY,

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                        Defendant.

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PLAINTIFF’S TRIAL MEMORANDUM

Preliminary Statement

This is an action for damages and injunctive relief pursuant to 42 U.S.C. § 1983 (1983), alleging violation of plaintiff’s rights under the Fourth and Fourteenth Amendments to the United States Constitution.  Plaintiff, formerly an inmate at Downstate Correctional Facility, Fishkill, New York (“Downstate”), alleges that punishment imposed on him on the basis of a urinalysis test in March 1985 by defendant, an employee of the New York State Department of Correctional Services, was both the result of an unreasonable search and seizure and a deprivation of due process under the law.  Plaintiff asks the Court to (1) void the determination of the Downstate disciplinary proceeding finding him guilty of use of narcotics while on prison furlough, (2) expunge such determination from his prison record, and (3) to award him damages suffered as a direct result of that constitutionally improper proceeding.

Summary of Facts to Be Established at Trial

Plaintiff will show that in February 1985 he provided a Downstate correction officer with a urine specimen upon demand for testing for drug use following a temporary furlough from Downstate.  Plaintiff will show that his urine specimen was thereafter received by National Health Laboratories, Mountainside, New Jersey (“National Health Laboratories”), for purposes of such testing.

Plaintiff will show that the chain of custody record mandated by New York State regulations was not maintained between the time his urine specimen was collected and the time it was delivered to National Health Laboratories.

Plaintiff will show that the EMIT drug detection system, used by National Health Laboratories in testing plaintiff’s urine specimen for evidence of drug use, does not in itself provide reliable evidence of marijuana use.  The “positive” result obtained by the EMIT test of plaintiff’s urine specimen must be confirmed by an alternate method of analysis or by a second, separate EMIT test in order to be used as reliable evidence of marijuana use.

Plaintiff will show that in March 1985 he was found guilty of violating Department of Correctional Services Rule 113.12 – “Use of Narcotic Substances” solely as a result of the urinalysis test performed on his urine by National Health Laboratories.  Plaintiff was punished by confinement, loss of privileges, and prison transfer as a direct result of that disciplinary determination.

Argument

I.                   DEFENDANT’S FAILURE TO FOLLOW EXPRESS REGULATIONS REGARDING MAINTENANCE OF A CLEAR CHAIN OF CUSTODY VIOLATED PLAINTIFF’S RIGHT TO CONSTITUTIONAL DUE PROCESS                                               

Defendant and other Downstate personnel were under an express obligation to maintain a clear chain of custody regarding the handling of plaintiff’s urine specimen.  Directive 4937 of the Department of Correctional Services --”Urinalysis Testing”, implemented on Dec. 1, 1983 (“Directive 4937”), mandated those procedures to be followed by New York State correctional facilities in the administration of inmate urinalysis testing programs:

“Urinalysis testing of inmates shall be conducted as set forth below.

*   *   *   *   *

 

“5)(b) If the facility does not have its own urinalysis testing apparatus, the specimen may be forwarded to an independent laboratory or to another facility that has urinalysis testing apparatus.

“(1) Place the specimen in a secured refrigerator if it is not to be forwarded immediately.  All persons handling the specimen shall make an appropriate notation on the “Request for Urinalysis Test’ form.  The number of persons handling the specimen shall be kept to a minimum.”

Directive 4937(D)(5)(b).[1] The standard “Request for Urinalysis Test” form referred to in Directive 4937 explicitly provides space for multiple entries under a “Chain of Custody” heading.  Moreover, that test form states in uniform capital letters that

“THIS FORM IS TO BE FILLED OUT COMPLETELY.  IT IS TO ACCOMPANY THE SPECIMEN UNTIL THE SPECIMEN IS TESTED.”

Directive 4937, Appendix A.[2]

The importance of maintaining a clear chain of custody is understandably stressed in the Department of Correctional Services regulations.  The danger that inmate urine specimens will be adulterated after their production cannot be gainsaid.  Revenge or retribution are not unknown in prison settings; access to urine samples -- whether by prison guards, civilian personnel or inmates -- provides a ready vehicle for the execution of such improper motives.

Nor is intentional adulteration the only danger in unchecked custodial care of inmate urine specimens.  The sensitivity of such samples to changes in temperature and length of storage are acknowledged limitations on the reliable performance of the EMIT urinalysis drug detection system.  See Directive 4937, Appendix C.[3]  A “positive” urinalysis test result may thus be an indication of improper handling procedure rather than actual drug use.

Plaintiff’s “Request for Urinalysis Test” form indicates only that plaintiff’s urine was collected on the morning of February 15, 1985, and placed by the collecting officer into a facility refrigerator ten minutes later.  Although it is uncontroverted that plaintiff’s urine was tested by a New Jersey laboratory on February 19, 1985, there is no indication of when, who and how many individuals handled that specimen in the four-day interim between collection and testing.  The failure of defendant and other Downstate personnel to follow the strictures of their own administrative regulations in a determination of guilt violated plaintiff’s right to due process of law.  See Wolff v. McDonnell, 418 U.S. 539 (1974); Wykoff v. Resig, 613 F. Supp. 1504, 1513 (N.D. Ind.. 1985) (noting inmate’s legitimate liberty interest” and “right to expect minimal due process safeguards” in custodial handling of urine specimens by correctional officials).

II.                DEFENDANT’S USE OF A SINGLE UNCONFIRMED URINE TEST IN DISCIPLINING PLAINTIFF WAS UNREASONABLE UNDER THE FOURTH AMENDMENT.                                           

Urinalysis has been determined to be a search and seizure within the meaning of the Fourth Amendment.  See Jones v. McKenzie, 833 F.2d 335, 338 (D.C. Cir. 1987); Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.), cert. den., 107 S. Ct. 577 (1986); American Federation of Government Employees v. Weinberger, 651 F. Supp. 726, 732 (S.D. Ga. 1986); Capua v. City of Plainfield, 643 F. Supp. 1507, 1512-13 (D.N.J. 1986); Allen v. City of Marietta, 601 F. Supp. 482, 488-89 (N.D. Ga. 1985); Storms v. Coughlin, 600 F. Supp. 1214, 1217-18 (S.D.N.Y. 1984); Patchogue-Medford Congress of Teachers v. Board of Education, 70 N.Y.2d 57, 517 N.Y.S.2d 456, 461 (1987); Caruso v. Ward, 133 Misc. 2d 544, 546-47, 506 N.Y.S.2d 789, 792 (N.Y. Sup. Ct. 1986), aff’d, 131 A.D.2d 214, 520 N.Y.S. 551 (N.Y. App. Div. 1987).  The collection and testing of urine specimens must therefore be conducted in a reasonable manner.  See Bell v. Wolfish, 441 U.S. 520, 558-60 (1979); Schmerber v. California, 384 U.S. 757, 771-72 (1966); Storms v. Coughlin, supra at 1221-22.[4]

A single test employing the EMIT drug detection system, utilized by National Health Lab in testing plaintiff’s urine specimen, does not in itself provide reliable evidence of specific drug use.  A “positive” result obtained by the EMIT urinalysis methodology must be confirmed to yield reliable evidence of specific drug use.

Defendant attempts to rely on the very outside laboratory whose testing methodology warned that a positive cannabinoid result should be confirmed by an alternate testing methodology.  National Health Lab fully recognized that a single EMIT test does not in itself provide reliable evidence of marijuana use.  It affixed the following legend in uniform capital letters to its February 19, 1985 analysis of plaintiff’s urine specimen:

“A POSITIVE CANNABINOID RESULT SHOULD BE CONFIRMED BY AN ALTERNATE METHOD.  IF YOU WISH FURTHER TESTING (AT AN ADDITIONAL CHARGE) CONTACT LABORATORY WITHIN 24 HOURS.”

The Department of Correctional Services itself concedes the need to confirm an EMIT test by mandating two, separately performed EMIT tests on any inmate’s urine initially tested as “positive” for drug use by on-site testing.  N.Y. Comp. Codes R. & Regs. tit. vii § 1020.4(e)(iv).  Despite this warning, no alternate method of analysis was used to confirm the urinalysis test performed on Mr. Soto’s urine.

This Court (per Sand, J.) has determined that the EMIT drug detection system is reliable when confirmed by a second, separately conducted EMIT test.  Peranzo v. Coughlin, 675 F. Supp. 102, 103-05 (S.D.N.Y. 1987); see Peranzo v. Coughlin, 608 F. Supp. 1504, 1513 (S.D.N.Y. 1985) (denying inmates’ motion to preliminarily enjoin use of EMIT test where there was insufficient evidence to show unreliability of double EMIT testing.) Several courts have struck down as unreasonable the use of urinalysis procedures which rely on unconfirmed test results.  See, e.g., Jones v. McKenzie, 628 F. Supp. 1500, 1505-07 (D.D.C. 1986)(holding termination of school bus attendant on basis of unconfirmed positive EMIT test to be “arbitrary and capricious”), rev’d on other grounds, 833 F.2d 335 (D.C. Cir. 1987); Wilson v. State, 697 S.W.2d 83 (Tex. Ct. App. 1985) (reversing trial court’s revocation of probation on the sole basis of an unconfirmed positive EMIT test); Johnson v. Walton, No. 561-84 Rm (Vt. Super. Ct., February 14, 1985) (holding inmate drug testing program violative of inmate’s rights to due process, where State failed to confirm positive EMIT results); Kane v. Fair, Civ. No. 136229 (Mass. Super. Ct., August 5, 1983) (preliminarily enjoining introduction of a positive EMIT test in a prison disciplinary hearing “unless accompanied by evidence that the positive result was confirmed by an alternate method of analysis”).

Other jurisdictions upholding urinalysis tests have also explicitly recognized the need to employ confirming methodologies in the examination of human urine for drug use.  See, e.g., National Treasury Employees Union v. Von Raab, 816 F.2d 170, 181 (5th Cir. 1987) (holding drug testing of customs employees “not so unreliable as to violate due process of law” where EMIT urinalysis technique was confirmed by gas chromatography/mass spectrometry urinalysis technique); Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 1986) (finding EMIT technique sufficient to provide some evidence of drug use where second, confirmatory EMIT test was applied to specimen); Platshorn v. Quinlan, 85 Civ. 6847 (S.D.N.Y. Jan. 10, 1986) (LEXIS, Genfed Library, Dist file) (upholding disciplinary action taken against federal prisoner on basis of urinalysis result, where EMIT test was confirmed by thin layer chromatography procedure).  In no case or jurisdiction discovered by plaintiff have the results of an unconfirmed EMIT urinalysis test been used to support a finding of drug use.

III.             DEFENDANT’S USE OF A SINGLE, UNCONFIRMED URINE TEST IN DISCIPLINING PLAINTIFF WAS A DEPRIVATION OF DUE PROCESS OF LAW.                                                                        

Defendant’s reliance on the unconfirmed result of the EMIT drug detection system in testing plaintiff’s urine sample acted to deprive him of due process of law.

Mr. Soto testified at his disciplinary hearing that he had not used drugs while on prison furlough, and elicited the testimony of correction officers that he was not visibly under the influence of narcotics upon his return to Downstate.  Despite defendant’s failure to conduct a confirmatory test on Mr. Soto’s urine using either an alternate test methodology (as urged by National Health Lab itself) or a second EMIT test (as mandated by this Court in Peranzo), the unconfirmed test result was used as the sole evidentiary basis in finding Mr. Soto guilty of violating regulations regarding inmate drug use.

Due process requires that decisions in prison disciplinary proceedings must have “some evidentiary basis.”  Superintendent v. Hill, 472 U.S. 445, 453-56 (1985).  The unconfirmed EMIT test result upon which Mr. Soto was punished is simply too unreliable to meet that standard of due process.

IV.              DEFENDANT’S ACTIONS VIOLATED PLAINTIFF’S ESTABLISHED RIGHTS, AND HE IS THUS NOT ENTITLED TO IMMUNITY.                                                                                                 

This Court has twice previously ruled that defendant is not entitled to hide behind the shield of qualified immunity in this case.  Soto v. Coughlin, supra at 636-37; Memorandum Endorsement, dated June 7, 1988.

Defendant’s failure to maintain a clear chain of custody in the handling of Mr. Soto’s urine specimen violated plaintiff’s constitutional right to due process under the law.  Defendant and others ignored express regulations of the Department of Correctional Services in the handling and processing of plaintiff’s urine for drug testing.  As plaintiff has noted previously, the importance of maintaining a clear chain of custody is stressed by the Department of Correctional Services and should not be minimized by the Court.  (See supra at 3-5.)  The provisions of Directive 4937, including those regarding the custodial care of inmate urine specimens, governed conduct at all New York State correctional facilities at the time of plaintiff’s provision of a urine specimen and subsequent punishment for alleged drug use.  As an employee of the Department of Correctional Services, defendant was obligated to follow the established procedures mandated by Directive 4937.

Mr. Soto’s punishment by defendant on the basis of a single EMIT urinalysis test result, unconfirmed by either a second EMIT test or an alternate urinalysis methodology, constituted an unreasonable search and seizure and a deprivation of due process of law.  (See supra at 6-10.)  It was improper and a violation of established law for defendant to rely upon an unconfirmed EMIT test result as the basis for finding plaintiff guilty of drug use.  Directive 4937 states flatly that, where a correctional facility has urinalysis testing apparatus, an initial test result indicating “positive” for drug use must be confirmed by a second EMIT test.  Directive 4937(D)(5)(a)(4).[5]  Defendant has admitted that Downstate personnel operated such testing apparatus at the time of plaintiff’s urine test; convenience was the sole reason for the off-site testing of Mr. Soto’s urine specimen.  A single, unconfirmed EMIT test performed by an outside laboratory has dubious scientific and evidentiary value under the Department of Correctional Services’ own regulations.  Defendant’s reliance on such an unconfirmed result is especially incomprehensible where the outside laboratory that analyzed plaintiff’s urine warned, in uniform capital letters affixed to the test results of plaintiff’s urine specimen, that the test should be confirmed by an alternate test methodology.  (See supra at 7.)

Defendant is charged with constructive knowledge that the reliability of an unconfirmed EMIT result had been called into question by at least one court with jurisdiction over Downstate at the time plaintiff’s urine specimen was tested.  Salhuddin v. Coughlin, 781 F.2d 24, 27 (2d Cir. 1986).  In an opinion issued more than two months prior to the testing of plaintiff’s urine, this Court (per Haight, J.) explored the reliability of the EMIT drug detection system in an action brought by four inmates at Sing Sing Correctional Facility, a sister institution of Downstate.  See Storms v. Coughlin, supra at 1221-22.  Judge Haight reviewed the record upon defendants’ motion to dismiss, as well as authorities from other jurisdictions, and concluded that there existed “an issue of substance as to the (EMIT] test’s reliability” to be examined at trial.  600 F. Supp. at 1222.  Since defendant’s punishment of Mr. Soto solely on the basis of an unconfirmed EMIT test was not objectively reasonable, defendant is not entitled to qualified immunity for his conduct.  See Anderson v. Creighton, 107 S. Ct. 3034 (1987).

Conclusion

For the foregoing reasons, the Court should issue an order voiding the determination of plaintiff’s March 1985 disciplinary proceeding, expunging such determination from his prison disciplinary record, awarding damages suffered as a direct result of that improper disciplinary proceeding, or for such other relief as the Court may deem just and proper.

 

Dated:  New York, New York

June 16, 1988

 

Respectfully submitted,

 

HUGHES HUBBARD & REED

 

 

_________________________________

Daniel H. Weiner

One Wall Street

New York, New York 10005

(212) 709-7000

Attorneys for Plaintiff

Raul Soto



[1].          Although Directive 4937 was revised in 1988, the provisions quoted above remain unchanged. N.Y. Comp. Codes R. & Regs. tit. vii § 1020.4(e)(2).

[2] .         See  N.Y. Comp. Codes R. & Regs. tit. vii § 1020.4(f).

[3]           See N.Y. Comp. Codes R. & Regs. tit. vii § 1020.5(b).

[4]           This Court (per Weinfeld, J.) has stated in dicta that Mr. Soto’s pro se complaint fails to articulate a Fourth Amendment claim. Soto v. Coughlin, 666 F. Supp. 634, 635 n.1 (S.D.N.Y. 1987). Plaintiff respectfully disagrees. The complaint herein details the facts underlying Mr. Soto’s assertion of an unreasonable search and seizure:

The demand by Downstate personnel for Mr. Soto’s urine upon his return from furlough, the taking of a urine specimen, the testing of that specimen, and the punishment meted out to Mr. Soto as a result. Complaint at 1-2. Since pro se complaints are to be interpreted liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), assertion of a Fourth Amendment violation should fairly be read from the complaint. Moreover, Mr. Soto’s federal due process claims involve the exact same factual predicate as his Fourth Amendment claims.

[5]           See N.Y. Comp. Codes R. & Regs. tit. vii § 1020.4(e)(iv).

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