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MOORE v. SELSKY

October 13, 1995

STANLEY MOORE, Plaintiff, against DONALD SELSKY, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Facts

 On April 30, 1990, plaintiff was ordered to submit to a random urinalysis test. The request for the test indicated that plaintiff had taken medication recently and contained a handwritten note stating "check medical records." (Leong Aff. Ex. 1) According to plaintiff's memorandum, DOCS Directive 4937 provides that inmate medical records "shall" be checked if an inmate reports having taken medication within the past month and the inmate's urine tests positive for drugs. Plaintiff's specimen tested positive for cannabinoids. Plaintiff was charged the following day with the use of drugs.

 In conformity with standard DOCS procedure, plaintiff was permitted to select an assistant for the hearing on the misconduct charge and chose Sergeant Shannon, who is among the named defendants in this action. Plaintiff raised with Shannon the issue of access to his medical records, but was told to bring that up at the hearing. (Id. Ex. 8, at 3)

 A Tier III disciplinary hearing on the misconduct charge was convened on May 5, 1990 before Lieutenant Ray Sanford. Plaintiff informed Sanford at the outset of the hearing that Shannon had told him to bring the subject of medical records up at the hearing, and Sanford confirmed that this had to be done at the hearing in consequence of a right to privacy law. (Id.) Plaintiff did not in so many words request access to his medical records. Nevertheless, Sanford began to explain the reliability of the test used by DOCS to determine the presence of cannabinoids and read into the record a letter from the manufacturer of the urinalysis test used by DOCS indicating that no known compound, drug or disease can product a false positive test result for cannabinoids or cocaine. (Id. at 5) After further discussion concerning the chain of custody of the urine sample, the calibration of the test instrument, and other matters, Sanford told plaintiff that the test can produce a positive result only if the drug is in the inmate's system. (Id. at 17) The following colloquy then occurred:

 
"Inmate Moore: Unless uh, there is other medication that can cause --
 
"Lt. Sanford: There is none, I just read you that, when we started in the proceeding as a point of interest, so, if we get into that, so you wouldn't be overwhelmed, and I wouldn't be overwhelmed with trying to explain the principal [sic]. The principal [sic] of the test, on these two items, cocaine and marijuana --
 
"Inmate Moore: Right.
 
"Lt. Sanford: is this, no matter what else you use, if you have marijuana or cocaine in your blood system or in your urine tract or in your body the machine will pick it up. * * * Now do you have any other questions that you want to ask that pertain to the hearing.
 
"Inmate Moore: No no." (Id. at 17-18)

 Sanford continued his explanation of the reliability of the urine test and concluded by stating, "That's how infallible the machine is." (Id. at 18) Plaintiff responded:

 
"Inmate Moore: Well based on your statements and your examples, I got to accept what you saying, because like you said, you went to school for it, and you broke it down, so uh, I have no other way of refuting or disputing it. I got to accept that." (Id. at 19)

 Sanford then said that he would give plaintiff a day to think about it and reopen the hearing on the following day. (Id.) He indicated that he would not have time to write up a disposition on May 5, but would "be prepared to give [plaintiff] one more shot to ask any questions [he ...


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