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May 14, 1985

PETER PERANZO, ISADORE FELIX, OSCAR ROMAN, FERDINAND FRILANDO, ROBERT LAWRENCE, MARCELLA PHIPPS, JAMES BOYD, on bahalf of themselves and all others similarly situated, Plaintiffs, against THOMAS COUGHLIN, Commissioner, New York State Department of Correctional Services, and RAMON RODRIGUEZ, Chairman of the New York State Board of Parole, GERALD M. BURKE, JOSEPH V. SALO, WILLIAM J. BARNWELL, MAURICE DEAN, THEODORE KIRKLAND, MANUEL PERRON, IRVING GREEENBERG, MARIA BUCHANAN, SAMUEL D. SHERRID, JOSEPH MULHOLLAND, BARBARA TREEN, and J. KEVIN McNIFF, Commissioners of New York State Board of Parole, in their Official Capacities, Defendants

The opinion of the court was delivered by: SAND



As part of continuing effort to deal with the troublesome problem of narcotics use within penal institutions, *fn1" New York, as well as a number of other states, has adopted a program of randomly subjecting inmates' urine to the Syva EMIT *fn2" -st drug detecting test.

 The New York State Department of Correctional Services has promulgated Departmental Directive # 4937, *fn3" which sets forth the rules governing the state's operation of its urine testing program. According to the Directive, an inmate may be required to provide a urine sample to prison authorities for purposes of determining whether the inmate has used drugs or alcohol. *fn4" The urine sample is then subjected to EMIT testing in order to make this determination. The record indicates that the EMIT testing apparatus is a purely mechanical, "idiot proof" device, requiring the operator to exercise no discretion, read no graphs and make no subjective interpretations. *fn5" Tr. 171. Among other procedural requirements, the Directive provides that "If a positive result is obtained, the apparatus shall be re-calibrated and a second test shall be performed on the same sample, by a different trained individual if available." Directive # 4937, Section D(5)(a)(4). If the second EMIT test yields a negative result, the initial positive result is disregarded and no disciplinary action results. If the second test yields a positive result, "the individual performing the urinalysis testing shall cause a 'Misbehavior Report' to be written. The Misbehavior Report shall be accompanied by the 'Request for Urinalysis Test' form, the 'Urinalysis Procedure' form, and any printed documents produced by the urinalysis testing apparatus." Id.

 As a consequence of a Misbehavior Report being written, a disciplinary hearing is held. At the hearing, "a positive urinalysis result may be used as evidence of the illicit use by the inmate of the drug or alcohol indicated by the result." Id., Section E. While both the state and the inmate are generally permitted to introduce certain additional inculpatory or exculpatory evidence, disciplinary sanctions may be imposed against an inmate found to have engaged in the illicit use of narcotics include confinement to one's cell ("keep lock"), transfer to a Special Housing Unit, or loss of good behavior allowance ("good time") and/or other institutional privileges. Tr. 282. *fn6" Inmates may also be denied parole release based in part on their use of narcotics as established by the results of EMIT testing.

 Plaintiffs, inmates of New York prisons, have moved to preliminary enjoin defendants

from taking any disciplinary action against them based solely upon confirmed results of urinalysis tests performed with the Syva EMIT-st Drug Detection System or any other testing system utilizing the same testing method and to enjoin them further to release from disciplinary confinement any inmate being held in any Special Housing Unit or under keeplock pursuant to any disciplinary proceeding disposition which was based solely upon unconfirmed results of urinalysis tests performed with the Syva EMIT-st Drug Detection System or any other testing system utilizing the same testing method and to enjoin them further from denying parole release to any inmate based solely upon unconfirmed results of urinalysis tests performed with the Syva EMIT-st Drug Detection System or any other testing system utilizing the same testing method.

 Plaintiffs' Motion for a Preliminary Injunction, at 1-2. Defendants have cross-moved to dismiss the complaint. *fn7"

 By Order of Reference dated February 6, 1985, these motions were referred to Magistrate Buchwald to hear and report proposed findings and recommendations. Pursuant to that reference, the Magistrate held a three-day hearing on the reliability of the EMIT test. On April 2, 1985, the Magistrate issued a report recommending the denial of defendants' motion to dismiss; the denial of plaintiffs' request that inmates being held in Special Housing Units or keeplock pursuant to any disciplinary proceeding based solely on EMIT test results be released from such confinement; and the granting of a preliminary injunction enjoining defendants from taking any future disciplinary action against inmates based solely on the results of EMIT tests which have not been confirmed by other tests, and ordering defendants to perform confirming tests (using another reliable analytical method) on positive EMIT tests before using the results as the sole basis for disciplinary action. *fn8"

 The matter is presently before this Court on objections filed by both parties. Pursuant to 28 U.S.C. ยง 636, we have reviewed de novo those portions of the report to which objection has been made. For the reasons discussed below, we adopt so much of the Magistrate's Report as denied defendnats' motion to dismiss and plaintiffs' motion for a preliminary injunction ordering the release of those inmates now in disciplinary confinement as a result of disciplinary proceedings based solely on EMIT test results. We believe, however, that plaintiffs have not sustained their burden of demonstrating an entitlement to preliminary injunctive relief as to the use of EMIT test results in future disciplinary proceedings or parole determinations and therefore deny plaintiffs' motion for such relief.


 As the Magistrate correctly recognized, the critical issue in this case relates to the reliability of the EMIT test as a basis for imposing disciplinary sanctions against inmates. Before this Court can properly set about the task of resolving this issue, the precise nature, context and scope of our inquiry must be defined. The question, "How reliable is the test?" is one for scientists to resolve; the question, "Is the test sufficiently reliable such that its use as the basis for imposing disciplinary sanctions against prisoners does not offend constitutional standards?" is a legal matter to which different standards apply.

 Obviously, the possibility that any person may unjustly suffer any deprivation because of a fallible scientific procedure is a cause for serious concern. We recognize that plaintiffs' interest in the accuracy of the drug testing procedures utilized by the defendants in this case is substantial. The courts have also recognized, however, that due process is not synonymous with a requirement of scientific exactitude or error-free procedures. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) ("there simply is no constitutional guarantee that all executive decision-making must comply with standards that assure error-free determinations"); see also Mackey v. Montrym, 443 U.S. 1, 13, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979) (same). Even with respect to one of the most fundamental of individual rights -- the right to an accurate determination of guilt at a criminal trial -- optimal precision is not the consitutional norm. See United States v. Ivic, 700 F.2d 51, 69 n.11 (2d Cir. 1983) ("It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt."). Similarly, we recognize that concepts of "reliability", "fairness" and "procedural adequacy" cannot be evaluated in the abstract, but must be examined in light of the particular factual setting with which the state's action is concerned. Unlike the private interest in the accuracy of a criminal proceeding involving individuals possessed of the full panoply of liberty rights, see Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), the liberty interest of prisoners, particularly in light of the already-existing restrictions on their liberty and the indisputable responsibility of prison authorities for maintaining order and discipline and deterring prisoner misconduct, is unquestionably of a different character. *fn9" The procedural safeguards to be accorded prisoners need not be coextensive with those provided for defendants in criminal proceedings. See Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), ("Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply"). Accordingly, if due process does not require error-free determinations in matters affecting the liberty interests of ordinary citizens, then mandating such a level of accuracy would certainly overstate the requirements of due process in the context of prisoner drug-testing.

 Courts have often been called upon to the role which specific tests may be permitted to play in legal proceedings. Some testing procedures have been found to be so unreliable that courts hav held the results inadmissible for most purposes. See, e.g., Barrel of Fun, Inc. v. State Farm Fire & Casualty Co., 739 F.2d 1028 (5th Cir. 1984) (psychological stress evaluation tests); United States v. Hunter, 672 F.2d 815 (10th Cir. 1982) (polygraph tests); United States v. Clark, 598 F.2d 994 (5th Cir. 1979) (same), cert. denied, 449 U.S. 1128, 67 L. Ed. 2d 116, 101 S. Ct. 949 (1981); United States v. Brown, 557 F.2d 541 (6th Cir. 1977) (ion microprobic analysis of human hair). But other tests, although not foolproof, are deemed of sufficient reliability that they may be received in evidence not only in administrative proceedings but also in criminal trials as well. See, e.g., People v. Gower, 42 N.Y.2d 117, 397 N.Y.S.2d 368, 366 N.E.2d 69 (1977) (breathlyzer test to detect use of alcohol by motorists); United States v. Distler, 671 ...

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