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April 1, 1993


The opinion of the court was delivered by: ROBERT J. WARD

 WARD, District Judge.

 Pursuant to 28 U.S.C. § 636(b)(1), plaintiff Christopher McCormack ("McCormack") has filed timely objections to the Report and Recommendation of Magistrate Judge Sharon E. Grubin dated September 25, 1992 (the "Report"). The Report recommends that plaintiff's motion for summary judgment in his 42 U.S.C. § 1983 action be denied and defendants' motion for summary judgment be granted. *fn1" After reviewing de novo those portions of the Report to which McCormack objects, the Court rejects in part and accepts in part the magistrate judge's recommendations. Defendants' motion is denied with respect to Counts I, II, III and IV, and denied in part and granted in part with respect to Counts V and VI. Count VII is dismissed without prejudice to renew.


 On March 13, 1988, two corrections officers at the Green Haven Correctional Facility ("Green Haven") detected a "strong oder [sic] of what appeared to be marijuana" emanating from the cell of inmate Christopher McCormack. Colucci Aff. Ex. B. The officers requested that a drug test be performed on McCormack and on March 14 plaintiff provided them with a urine sample. Two separate enzyme multiple immunoassay technique ("EMIT") tests were then administered. *fn2" The first test was performed on April 24 by Correction Officer Julio Soto ("Soto"). The second was performed on May 14 by Correction Officer H. Rosario ("Rosario"). Both tests produced positive results for marijuana use. Id. Ex. C.

 On May 14, 1988 McCormack was served with an Inmate Misbehavior Report (the "Misbehavior Report") charging him with use of a controlled substance. Id. Ex. A. The next day, defendant Lieutenant Gerald Cheers ("Cheers") was assigned to conduct a Tier III disciplinary hearing. Id. Ex. D. The hearing was convened on May 18. *fn3"

 At or before the hearing, McCormack received a copy of the Misbehavior Report. In addition, he received copies of his urinalysis test forms, including the Request for Urinalysis Test form (the "Urinalysis Request form"); the Urinalysis Procedure form; and EMIT Test Result Cards for each test (the "Result Cards"). Id. Ex. F at 1. He also received redacted versions of Soto and Rosario's Daily Worksheets for the two test days (the "Worksheets"). Id. Ex. F at 7. *fn4"

 Presumably, plaintiff also sought to prove that prescription medication he was taking could have affected the test results. To this end, he requested that a Dr. Pedersen ("Pedersen") be allowed to testify and produce plaintiff's medical records. Colucci Aff. Ex. F at 4. At the end of the hearing, Cheers denied the request for Pederson's testimony. Id. Ex. F at 15. In addition, Cheers stated the reasons for this denial in a written statement pursuant to N.Y. Comp. Codes R. & Regs. tit. vii § 253.5(a). He documented in the Superintendent's & Disciplinary Hearings-Witness Interview form (the "Witness Interview form") that Pedersen's testimony would not have altered the outcome of the hearing, since Syva, the company which produces EMIT tests, had already described the effects of medication on urinalysis tests in a previous letter it had sent to Cheers (the "Syva letter"). *fn5" Cheers provided no explanation as to why plaintiff's medical records were not produced.

 At the conclusion of the hearing, Cheers found McCormack guilty and ordered plaintiff confined to his cell or to the Special Housing Unit for 60 days. Id. Ex. F at 16. Plaintiff also lost telephone, commissary and package privileges during that 60 day period. Id. In a written decision following the hearing contained in the Superintendent's Hearing Disposition Rendered form (the "Disposition Report"), Cheers listed three factors as "evidence relied upon" in determining McCormack's guilt:

(1) C.O. J. Soto verified dates on Chain of Custody that test was conducted on 4-24-88 at 13:50 pm [;] dates of 6-22-88 refer to positive control exp. Date [and] negative control exp. Date . . .
(2) Strong odor of marijuana emanating from inmate's cell while inmate was present in cell
(3) Inmate tested positive for marijuana via facility urinalysis procedure.

 Id. Ex. J. McCormack appealed Cheers's determination to defendant Donald Selsky ("Selsky"), Director of the New York State Department of Correctional Services ("DOCS") Special Housing/Inmate Disciplinary Program. Selsky affirmed the guilty determination on July 25, 1988. Id. Ex. K. *fn6"

 Subsequent to Selsky's affirmance, on August 26, 1988, McCormack brought an Article 78 proceeding in the New York State Supreme Court, Dutchess County, which was transferred to Clinton County on October 28, 1988. On March 7, 1989, the Supreme Court annulled the guilty determination, and ordered that all references to the proceedings be expunged from McCormack's files. Id. Ex. L. The court found that: (1) plaintiff was denied the required documentary evidence; (2) plaintiff was denied the right to call witnesses; and (3) questions regarding the urine specimen's chain of custody precluded a finding of guilt. Id.7 The decision was not appealed.

 In the present action, McCormack alleges that defendants violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution in connection with the Tier III disciplinary hearing at Green Haven. His complaint asserts seven counts based on the denial of his liberty interest. Counts I, III and V are brought against Cheers. They allege respectively that: Cheers used defective documents as a basis for the hearing determination; Cheers withheld documentation from McCormack necessary for presenting a defense; and Cheers refused to hear from witnesses that McCormack had a right to call at the hearing. In Counts II, IV and VI, McCormack claims that Selsky failed to "remedy the wrong" upon learning on appeal of the particular due process violation alleged in the previous count. Count VII asserts that damages were suffered by plaintiff as a result of the denial of his due process rights. Pursuant to 42 U.S.C. § 1983, plaintiff seeks $ 25,000 in compensatory damages, $ 10,000 in punitive damages from Cheers, $ 5,000 in punitive damages from Selsky, and attorney's fees.

 The Magistrate Judge's Report

 In her Report, Magistrate Judge Grubin recommends that plaintiff's motion for summary judgment be denied and defendants' motion for summary judgment be granted with respect to all seven counts. Report at 1. Magistrate Judge Grubin first clarifies that the Article 78 proceeding does not control the present action and would not compel summary judgment for plaintiff. The state court proceedings referred exclusively to violations of state regulations and "federal constitutional standards rather than state law define the requirements of procedural due process." Report at 13 (quoting Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990)). Moreover, even had the state decision been based on federal constitutional determinations, plaintiff would not be able to rely offensively on the state court judgment for purposes of collateral estoppel in a federal action. Id. at 13 (citing Gutierrez v. Coughlin, 841 F.2d 484, 486 (2d Cir. 1988) (per curiam)).

 Next, Magistrate Judge Grubin recommends summary judgment for defendants on both Counts III and V in that neither raises genuine issues of material fact. Report at 16. Even though the Supreme Court held, in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), that an inmate may call witnesses and present evidence in his defense at a prison disciplinary hearing, it also held that a hearing officer has discretion to deny the request "whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases." Report at 14 (quoting Wolff v. McDonnell, 418 U.S. at 566). Magistrate Judge Grubin accepts Cheers's contention that McGinnis had nothing to do with the drug testing or the chain of custody and that his testimony would therefore be irrelevant. Magistrate Judge Grubin also notes that plaintiff offered no explanation nor in any way indicated the purported relevance of McGinnis's testimony. Report at 15. The Report discounts the need for Pedersen's testimony and copies of McCormack's medical records because "plaintiff had produced no evidence to rebut the evidence from Syva produced by Cheers that no known medication would have been found to produce such [false positive] results." Report at 15. According to the Report, case law has determined the near perfect reliability of double EMIT testing.

"We now find that, with a 98% rate of accuracy, the double EMIT testing as performed by DOCS is sufficiently reliable so that the use of the results as evidence, even as the only evidence, in a disciplinary hearing does not offend due process."

 Id. at 15 n.8 (quoting Peranzo v. Coughlin, 675 F. Supp. 102, 105 (S.D.N.Y. 1987), aff'd, 850 F.2d 125 (2d Cir. 1988)). Magistrate Judge Grubin also accepts Cheers's contention that the term "logbook" refers to Soto and Rosario's Worksheets and McCormack received copies of these Worksheets along with all documents pertaining to his test procedures. Report at 16.

 Finally, Magistrate Judge Grubin examines whether plaintiff's Count I challenge relating to the integrity of a urine sample's chain of custody based on defective documents amounts to a due process violation. "'Minimum due process requires a prison disciplinary body to establish a reasonably reliable chain of custody as a foundation for introducing the results of urinalysis tests.'" Id. at 17 (quoting Soto v. Lord, 693 F. Supp. 8, 19 (S.D.N.Y. 1988)). The Report, however, distinguishes Soto from the present case. According to Magistrate Judge Grubin, the facts in Soto "presented an extreme instance of 'glaring deficiencies in the documentation.'" Report at 17 (quoting Soto v. Lord, 693 F. Supp. at 18). As the Report explains, Soto would not classify the present case as one where the documents contained "glaring deficiencies" because the instant action is similar to "a case where there are some 'possible discrepancies as to the time[] the specimen was removed from the refrigerator and the time[] the test[] was performed.'" Report at 18 (quoting Soto v. Lord, 693 F. Supp. at 19 (quoting Price v. Coughlin, 116 A.D.2d 898, 498 N.Y.S.2d 209, 210 (App. Div. 1986))). Moreover, other evidence, such as the testimony of correction officers and the introduction of contemporaneous documents, can serve to explain discrepancies in the chain of custody. Report at 19 (citing Tal v. McGann, No. 88 Civ. 7678, 1991 U.S. Dist. LEXIS 8129 at *6-7, 1991 WL 113776 at *2 (S.D.N.Y. June 14, 1991)).

 Magistrate Judge Grubin reasons that, even though there were crossed out and incorrect dates on the Urinalysis Request form, Officer Soto's explanation for the discrepancies was not challenged by the plaintiff as unreasonable, and contemporaneous documents, such as Soto's Worksheet and Result Card, confirm his testimony. Report at 18, 19. Therefore, the Report asserts that Cheers had a "sufficiently reliable basis" for concluding that the test results were adequately explained and concludes that "those results easily constitute 'some evidence' in support of his guilty finding . . . ." Id. at 20 (citing Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 455, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985) (court should sustain a hearing officer's determination in a disciplinary proceeding, as long as there ...

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