KENNETH CONBOY UNITED STATES DISTRICT Court.

The plaintiff in this action brought pursuant to 42 U.S.C. section 1983 *fn1 claims the defendant violated his constitutional rights in conducting a prison disciplinary proceeding that failed to conform to due process requirements. The matter was tried before Court sitting without a jury on June 16 1988. This Opinion and Order incorporates Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52.

CHRONOLOGY

In 1981 plaintiff serving a sentence of seven and a half to fifteen years imprisonment received a transfer from Comstock Correctional Facility to Downstate Correctional Facility. Plaintiff's Counselor at Comstock had recommended the transfer after receiving in 1980 a letter from a doctor at Columbia Presbyterian Medical Center. The letter "strongly recommend[ed] that [the plaintiff] be moved to a facility closer to home so that" plaintiff's daughter then approximately three years old and suffering developmental retardation could "have more frequent contacts with her father." Complaint Ex. D1. The transfer provided the plaintiff more frequent opportunities to see his daughter because the trip to Downstate was not unduly taxing to his wife and daughter. *fn2 While at Downstate the plaintiff was visited by his wife and daughter "at least three times a month." Trial Transcript at 14 [hereinafter "Tr. x."].

While incarcerated at Downstate the plaintiff conducted himself admirably. The only blemish on his record prior to the incident in question was a single period of special punitive confinement in 1981. *fn3 Tr. 40.

In February 1985 the plaintiff was an "honor inmate " Tr. 15 entitled to have overnight visits with his wife and daughter in a trailer at the prison. Tr. 14-15. Additionally he held at least three jobs within the prison working as "the coordinator of the chaplaincy programs " which included a religious encounter program as a chaplain's assistant as coordinator of a drug rehabilitation program and as secretary of the Legion of Mary a program run by the chaplain. Tr. 12-13. He received the maximum pay an inmate could receive "about $1.55 a day." Tr. 13. Further the plaintiff was attending Marist College trying to achieve a "Justice Certificate which is a 60 credit college program " id. and was participating in the New York State Regents external degree program trying to achieve a bachelor's degree. Tr. 13. He was at that time about six credits short of obtaining an associate degree. Tr. 13. Because the plaintiff was an honor inmate and was within a year of his release date (November 1985) in early 1985 he was eligible for furloughs which allowed him to go home and spend time with his family and for work releases. Tr. 16.

In January 1985 the plaintiff received a three day furlough which he used. Tr. 16. When he returned to Downstate the plaintiff underwent a urine test to test for drug use. Id. The test result was negative. Plaintiff testified that he was also tested after family overnight visits. This was "standard procedure." Tr. 15. Plaintiff testified that he submitted to thirteen or fourteen urine tests after these visits. All of the tests were negative. Id.

On February 7 1985 the plaintiff began a week-long furlough. During that week the plaintiff visited his prospective employer (where he has been employed since his release in November 1985 to the present Tr. 11-12) to secure his work release. Tr. 16. This was important to the plaintiff because with a secure job he would be transferred to a New York City facility to serve the last nine months of his sentence. In the work release program the plaintiff "would leave the facility [for] the day work then come to the facility and sleep at night and [he] would be earning a salary and saving money for [his] release." Tr. 18. Plaintiff spent most of the rest of his time with his wife and daughter. Tr. 16. When he returned to Downstate on February 15 1985 plaintiff reported to the officer in charge of processing him into the facility Officer Knapp. Tr. 16-17.

Officer Knapp escorted the plaintiff to the prison clinic to provide a urine sample for testing. Tr. 17. This did not surprise the plaintiff; the testing was "standard procedure." Id. At that time the plaintiff was aware that inmates found guilty of having used drugs while on furlough were subjected to a "Tier III" hearing. Tr. 19. This was "the severest of the superintendent's proceedings " id.; see id. at 47 (testimony of the defendant) (Tier III hearing is "generally considered to deal with the more severe charges") which might lead to special confinement loss of certain privileges *fn4 and possible transfer out of Downstate. Tr. 19.

Five days later the plaintiff received a misbehavior report. It stated that the plaintiff's urine specimen had tested positive for drug use. Tr. 19-20. On receipt the plaintiff was placed under "keep lock status." *fn5 Tr. 20.

On February 26 1985 the defendant commenced the Tier III hearing. *fn6 The plaintiff pleaded not guilty. He asked that two corrections officers with whom he had spent significant amounts of time while being processed on February fifteenth testify on his behalf. They did. Both testified that the plaintiff did not appear to them to be under the influence of drugs while they processed him. See Joint Trial Exhibit 7 at 5 (Officer Knapp) [hereinafter "Ex. x."]; id. at 6 (Officer Ciangiola).

The plaintiff reviewed the report of the National Health Laboratory Ex. 4 which indicated that marijuana was present in his urine. The plaintiff asked the defendant to read a stamped statement in the center of the single page report. See Ex. 7 at 3. That statement reads: "A positive cannabinoid result should be confirmed by an alternate method. If you wish further testing (at an additional charge) contact laboratory within 24 hrs." Ex. 4; see Ex. 7 at 3. The plaintiff asked whether a confirmatory test had been performed. When told there was no record of any confirmatory test the plaintiff asked whether the test was conclusive. See Ex. 7 at 3. The defendant stated that he would make inquiry. Id.

The hearing was recessed; it resumed on March 5. The defendant stated that he had checked with other prison officials concerning the need for a confirmatory test. Ex. 7 at 8; see Tr. 72-74. Defendant explained to plaintiff that the confirmation was not intended to insure the correctness of the positive result but rather to confirm the level of drugs present in the system. See Ex. 7 at 8.

The defendant held that the preponderance of evidence established plaintiff's violation of a rule or regulation prohibiting use of a narcotic or controlled substance. See Ex. 7 at 9-10. The defendant stated that "a clear chain of evidence" had been shown id. at 10 and that "the chemical evidence on a reasonably valid test" proved that the plaintiff had ingested marijuana. Id. At 8-9. The defendant imposed a penalty of sixty days' confinement to cell *fn7 and loss of all privileges. See Ex. 7 at 9.

The plaintiff served fifteen days of this punishment in Downstate. Tr. 24. He then was transferred to Dannemora State Prison also known as the Clinton Correctional Facility Tr. 26 where he completed his punishment and his sentence. See Tr. 24-26. This transfer was not ordered by the defendant; he did not have the power to issue such an order. Tr. 77. Rather it was explained that Downstate "is a reception center " having "a very small cadre of general population inmates." See Tr. 41. This cadre "is primarily composed of inmates who would be working at the facility." Id. at 42. An individual subject to confinement as a result of a Tier III proceeding is no longer qualified to be working and therefore is transferred. Id.

The plaintiff also lost certain privileges as a result of the adjudication of guilt. These included telephone privileges *fn8 commissary privileges *fn9 and package privileges. *fn10 See Ex. 7 at 9. Further when the plaintiff finished his period of confinement on April 21 1985 he was given the job of porter in a school earning thirty cents per day. *fn11 Tr. 26.

The plaintiff told his wife not to visit him at Dannemora. He gave two reasons for this. First his family could not afford the bus tickets. See Tr. 28. Second plaintiff's daughter suffered from motion sickness. The bus trip "18 hours maybe 20 hours " id. was too difficult. *fn12 Because of this plaintiff did not see his family until he returned to New York City in November 1985. Tr. 11-12 28.

FINDINGS OF FACT

1. In early 1985 the plaintiff earned $1.55 per day from his employment in Downstate. Tr. 13.

2. While on furlough in February 1985 the plaintiff confirmed employment so that he might participate in a work release program. He was eligible for work release because he was in the final year of his prison term. Tr. 15-16.

3. The plaintiff knew from prior experience that he would be subjected to a urinalysis when he returned from furlough on February 15 1985. Tr. 17.

4. The plaintiff did provide a urine sample on February 15 1985 for urinalysis. Tr. 17-18.

5. The State of New York Department of Correctional Services issued a Directive number 4937 on Urinalysis Testing dated December 1 1983. See Ex. 1. Directive 4937 includes a section entitled "Procedure." In the subsection entitled "Process [sic] the Urine Specimen " the Directive states that whether the test is conducted at the facility or at an independent laboratory all persons handling the urine specimen must make an appropriate notation on a form entitled "Request for Urinalysis Test." See Ex. 1 at D(5) (a) (1); id. at D(5) (b) (1). Attached as Appendix A to the Directive is a copy of the form called "Request For Urinalysis Test " or "Form 2082."

6. The copy of Form 2082 that accompanied the plaintiff's urine specimen was introduced at the disciplinary hearing conducted by the defendant. Ex. 2. The Form indicates the following chain of custody:

From Inmate: Soto Raul to R. Knapp 2/15/85 at 10:15 a.m.

From R. Knapp to the Downstate Hospital Refrigerator 2/15/85 at 10:25 a.m.

Form 2082 states directly beneath the area for stating the chain of custody: "This form is to be filled out completely. It is to accompany the specimen until the specimen is tested." Ex. 2 (emphasis in original).

7. The specimen was not to be tested at Downstate even though Downstate possessed the necessary facilities. This was the normal procedure for specimens obtained from inmates returning from furloughs. Tr. 58-60.

8. A specimen purportedly the plaintiff's was delivered to the National Health Laboratories for analysis. National Health Laboratories used the EMIT test to conduct the analysis. The analysis was positive for marijuana. Ex. 4.

9. The National Health Laboratories report states in bold print in the center of the page and just beneath the positive result: "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." Ex. 4.

10. Downstate did not request or perform a confirmatory test on the urine sample. Tr. 93.

11. Based on the National Health Laboratories report a Misbehavior Report was filed against the plaintiff. Ex. 3.

12. Another piece of documentary evidence introduced at the disciplinary proceeding was a document called "Downstate Correctional Facility - Urinalysis Check Sheet/Continuity Form" [hereinafter "Continuity Form"]. Ex. 6. *fn13 This form states that it is to accompany the urine specimen and continue the continuity to the final testing stage. Upon completion it will be forwarded with a copy of Form 2082 (Request Ex. 6. This form "is a local Downstate Correctional Facility form." Tr. 97.

13. The Continuity Form contains a check list. The form states that all parts of the check list must be completed. The Continuity Form used in the disciplinary proceeding at issue states "Yes" in answer to "Chain of custody completed on Form 2082 starting from employee observing urination." Ex. 6. This answer is not true. See Ex. 2; Tr. 89-90. The Continuity Form also lacks any response to another inquiry. See Ex. 6. Further the Continuity Form states that the plaintiff's urine specimen was delivered to the prison laboratory on February 15 1985. This is not consistent with the testimony at trial that the practice of officials at Downstate was not to process specimens taken from prisoners returning from furloughs at the prison laboratory. Tr. 58-60. Additionally the defendant stated at trial that he had no evidence in 1985 to indicate that Downstate's laboratory analyzed the plaintiff's urine sample. Tr. 58.

14. During the disciplinary proceeding the defendant for the record read down the "Check List" and (untitled) "Chain of Custody" sections of the Continuity Form. Ex. 7 at 2. The defendant misidentified an employee of National Health Laboratories Bob Lewis calling him "R. Ludden." Id. The defendant skipped over one item that had not been completed although the Continuity Form states that it had to be completed. See Ex. 6 & Ex. 7 at 2. The defendant also neglected to note that the specimen had been delivered to an outside laboratory. See Ex. 6 & Ex. 7 at 2. The defendant stated that the specimen had been "removed" to the prison laboratory when the Continuity Form states that the specimen was "delivered" to the prison laboratory where it was "received." See Ex. 6 & Ex. 7 at 2.

15. The defendant had never conducted a disciplinary proceeding before the one involving the plaintiff. Tr. 63.

16. On March 5 1985 the plaintiff was adjusted guilty of using marijuana based substantively solely on the chemical evidence provided by the report of National Health Laboratories. See Ex. 7 at 9; Ex. 5 ("Superintendent's Hearing

17. The plaintiff was ordered confined to his cell for sixty days. Ordinarily the plaintiff would be outside of his cell from 8 a.m. until 6 p.m. except for a "head count" at noon. Tr. 33. Punitive confinement consisted of confinement for 23 hours each day. Id. The plaintiff lost his telephone package and commissary privileges because of the punishment. Ex. 7 at 9.

18. As a result of the adjudication of guilt the plaintiff was transferred from Downstate to Dannemora. Tr. 24-26 41-42 77. Court takes judicial notice that Dannemora is located approximately twenty miles from the Canadian border in northeast New York State.

19. Also as a result of the adjudication of guilt the plaintiff was reassigned to work as a porter earning 30 cents per day. Tr. 26.

20. Within ten days of his transfer to Dannemora the plaintiff wrote to Governor Cuomo. While complaining that he had been found guilty unjustly the purpose of the letter was to plead that the Governor intercede to have the plaintiff transferred to a facility closer to his family so that he might be able to visit with them. He made specific reference to and stated that he was enclosing a copy of the 1980 letter from the doctor at Columbia Presbyterian Medical Center regarding his youngest daughter see discussion supra at 9-10 in the letter to Governor Cuomo. Complaint Ex. D2-D3.

21. On May 1 1985 Commissioner Coughlin wrote to the plaintiff stating that Governor Cuomo had referred the plaintiff's letter to him. The letter from Commissioner Coughlin states that "due to [the plaintiff's] disciplinary infraction and disposition [he] w[as] no longer appropriate for Downstate Cadre and w[as] transferred to the Clinton Correctional Facility." The letter goes on to state that the plaintiff's case would be reviewed "semi-annually" for transfer eligibility. The letter does not indicate how the decision was made to transfer the plaintiff to Dannemora rather than another facility. Comp. Ex. D6.

22. The plaintiff wrote to Commissioner Coughlin in a letter dated May 7 1985. He requested that he be considered a hardship case. He again referred to the 1980 letter regarding his retarded daughter and asked: "When a doctor tells your department that they [sic] strongly recommend that I be kept close to New York City because of a retarded child who suffers from seizures what do you do? Where is the compassion or the human and individual element in your department?" Comp. Ex. D4.

23. In a letter dated May 8 1985 the plaintiff wrote Governor Cuomo a second time. The plaintiff reiterated his complaint that it was not possible for his retarded daughter to make the trip to Dannemora. He asked the Governor to "give [his] family and himself a chance to stay close together." Comp. Ex. D5.

24. In a letter dated May 10 1985 Commissioner Coughlin told the plaintiff that he was not eligible for transfer and suggested the plaintiff discuss "future transfer prospects" with his assigned Counselor. The letter did not indicate the reason for the plaintiff's transfer to Dannemora. Comp. Ex. D7.

25. No evidence independent of the Form 2082 and the Continuity Form was adduced at trial to demonstrate that the tested specimen did come from the plaintiff.

26. The plaintiff's testimony was wholly creditworthy.

27. The defendant was a grudging witness. His demeanor on the witness stand conveyed the impression that he was not confident that he had conducted the plaintiff's disciplinary proceeding in an error-free manner.

CONCLUSIONS OF LAW

Liability

I. Governing Legal Standards

The plaintiff states one alleged constitutional violation -- absence of procedural due process -- based on two separate failings: failure to confirm a positive urinalysis result and adjudication of guilt based on untrustworthy evidence. "In a procedural due process claim it is not the deprivation of property or liberty that is unconstitutional; it is the deprivation of property or liberty without due process of law -- without adequate procedures." Daniels v. Williams 474 U.S. 327 339 88 L. Ed. 2d 662 106 S. Ct. 662 (1986) (Stevens J. concurring in judgment) (emphasis in original). "To resolve a procedural due process claim a court must determine whether the plaintiff was deprived of a protected interest and if so what process he was due." Farid v. Smith 850 F.2d 917 924 (2d Cir. 1988) (citing Logan v. Zimmerman Brush Co. 455 U.S. 422 428 71 L. Ed. 2d 265 102 S. Ct. 1148 (1982)).

Unquestionably New York State created and the plaintiff possessed a "liberty" interest in avoiding the disciplinary confinement he was subjected to as a result of the adjudication of guilt at issue. See McCann v. Coughlin 698 F.2d 112 121 (2d Cir. 1983); see also Frazier v. Coughlin 850 F.2d 129 130 (2d Cir. 1988) ("Disciplinary confinement clearly implicates a liberty interest requiring due process."); Sher v. Coughlin 739 F.2d 77 81 (2d Cir. 1984)(same). *fn14

To comport with "the minimum requirements of procedural due process " Superintendent Mass. Correctional Inst. at Walpole v. Hill 472 U.S. 445 454 86 L. Ed. 2d 356 105 S. Ct. 2768 (1985) (quoting Wolff v. McDonnell 418 U.S. 539 558 41 L. Ed. 2d 935 94 S. Ct. 2963 (1974)) the defendant's determination which resulted in the deprivation of the plaintiff's liberty interest must be supported by "a modicum of evidence" in the record. See id. At 454-56. "The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact." Id. at 456. *fn15

Court recognizes that New York State could satisfy procedural due process by providing "a meaningful post-deprivation remedy such as a tort suit." Davidson v. Cannon 474 U.S. 344 358 88 L. Ed. 2d 677 106 S. Ct. 668 (1986)(Blackmun J. dissenting); see Parratt v. Taylor 451 U.S. 527 543-44 68 L. Ed. 2d 420 101 S. Ct. 1908 (1981) overruled on other grounds Daniels v. Williams 474 U.S. 327 88 L. Ed. 2d 662 106 S. Ct. 662 (1986). Where a tort suit is precluded by state law a section 1983 claim lies. See Daniels 474 U.S. at 339 (Stevens J. concurring in judgment); Davidson 474 U.S. at 358-59 (Blackmun J. dissenting); Hudson v. Palmer 468 U.S. 517 533-36 82 L. Ed. 2d 393 104 S. Ct. 3194 (1984). Such is the case here.

Literally one week prior to trial the New York Court of Appeals decided Arteaga v. State 72 N.Y.2d 212 527 N.E.2d 1194 532 N.Y.S.2d 57 (1988). In Arteaga Court of Appeals held unanimously that "for purposes of common law tort actions in New York prison hearing officers should be entitled to absolute immunity." Id. dissent at 224 527 N.E.2d 1194 532 N.Y.S.2d 57 (Simons J. dissenting). *fn16 A claim for failure to provide procedural due process lies under section 1983 when the plaintiff would be precluded from recovering under state law due to sovereign immunity. See Davidson 474 U.S. at 358-59 (Blackmun J. dissenting); Hudson 468 U.S. at 535-36; see also Arteaga at 220-21 (noting that the inmate-plaintiffs were not without a remedy as they could bring section 1983 actions if their constitutional rights had been violated); id. dissent at 224-25 (Simons J. dissenting) (same).

State law immunizing government conduct otherwise subject to suit under section 1983 is preempted "because the application of the state immunity law would thwart the congressional remedy which of course already provides certain immunities for state officials." Felder v. Casey 487 U.S. 131 101 L. Ed. 2d 123 108 S. Ct. 2302 (1988) (dictum) (citation omitted); see Martinez v. California 444 U.S. 277 284 & n.8 62 L. Ed. 2d 481 100 S. Ct. 553 (1980). In Cleavinger v. Saxner 474 U.S. 193 88 L. Ed. 2d 507 106 S. Ct. 496 (1985) the Supreme Court squarely addressed the issue whether prison disciplinary officers were entitled to absolute or qualified immunity for actions violative of the United States Constitution. See id. at 194. *fn17 Court held that under the United States Constitution prison authorities conducting disciplinary hearings are entitled only to qualified immunity for their official acts. See id. at 206.

"Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action[ ] assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton 483 U.S. 635 97 L. Ed. 2d 523 107 S. Ct. 3034 (1987).

The right the official is alleged to have violated must have been "clearly established" in a . . . particularized . . . sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful but it is to say that in the light of preexisting law the unlawfulness must be apparent.

Id. at 639 107 S. Ct. at 3039 (citation omitted); see Giacalone v. Abrams 850 F.2d 79 (2d Cir. 1988).

II. Application to the Facts

A. Failure to Confirm Positive Test Results

Assuming without deciding that as a constitutional rule reliance on an unconfirmed *fn18 EMIT test violates due process the defendant is entitled to qualified immunity unless that rule was "clearly established" in March 1985. Plaintiff points to several decisions *fn19 holding that use of an unconfirmed urinalysis test result violates due process. Only one case cited by the plaintiff was decided prior to 1985 and another was decided less than one month prior to the termination of plaintiff's disciplinary hearing. See supra note 19.

On the other hand defendant points to two cases including one decided by a New York state court decided prior to 1985 holding use of an unconfirmed EMIT test constitutional. See Jensen v. Lick 589 F. Supp. 35 38-39 (D.N.D. 1984); Orr v. Kuhlman No. 46 slip op. (N.Y. Co. Ct. Oct. 19 1984) cited in Peranzo v. Coughlin 608 F. Supp. 1504 1512-13 (S.D.N.Y. 1985).

In light of the decisions cited by the defendant Court concludes that the law requiring use of a confirmatory test before accepting EMIT test results as reliable evidence was not "clearly established" at the time the defendant conducted the plaintiff's hearing. Therefore the defendant is entitled to immunity for the act of receiving the test results as evidence despite the absence of a confirmatory test.

B. Failure to Establish a Chain of Custody *fn20

The plaintiff also objects that the defendant did not establish a proper foundation for reception of the EMIT test results i.e. that no chain of custody was established. The defendant admitted that plaintiff's disciplinary hearing was the first of its kind that he had ever conducted. *fn21 Further the defendant admitted that he had not "been trained in what is a complete chain of custody." Tr. 89.

The official Department of Correctional Services Form 2082 recorded and filed in the case of inmate Soto is obviously incomplete. It states only that the plaintiff gave his specimen to Officer Knapp and that Officer Knapp placed the specimen in the refrigerator. The Form is silent on how and when the specimen left the refrigerator was transmitted to the laboratory was tested labeled and returned to the Corrections Department. The defendant however maintains that he relied on a separate secondary "Continuity Form" to establish the chain of custody. The transcript of the hearing indicates that the defendant made a cursory review of that form. See Ex. 7 at 2.

An even casual review of the Continuity Form reveals that it is inaccurate and incomplete. It is inaccurate in that it states that the chain of custody on Form 2082 is complete. See Ex. 6. It is incomplete in that another section of the "Check List " which the instructions for filing the Continuity Form require to be answered is left unanswered. See id.

The Continuity Form also notes that one Bob Lewis who picked up the specimen "as a representative of National Health Lab[oratorie]s " Tr. 71 and who presumably delivered the specimen to National Health Laboratories see Tr. 98 also delivered the plaintiff's specimen to the prison laboratory where it was received. Ex. 7 at 2; see Ex. 6. The defendant misidentified Mr. Lewis indicating that he did not know in 1985 who the individual was. *fn22 More importantly there is no indication that the defendant even paused to ask why an employee of National Health Laboratories would be delivering specimens to the prison laboratory or what happened to the specimen after it was received by the prison laboratory. *fn23 See Ex. 7 at 2. Because it was the practice if not the policy of Downstate to send the specimens of prisoners returning from furloughs to National Health Laboratories for testing see Tr. 59-60 this delivery appears to have been irregular superfluous and unnecessary. Yet the defendant did not question this entry. In fact the defendant in reading the Continuity Form into the record changed the word "delivered" on the Continuity Form to "removed." See Ex. 6 & Ex. 7 at 2. This represents an intentional alteration by the defendant of the principal document upon which he seeks to rely in order to justify his establishment of the crucial indeed decisive chain of custody requirement upon which the punishment of the plaintiff turned. The defendant also neglected to indicate that the specimen had indeed been received in the prison laboratory and made no inquiry as to who there had received it and under what circumstances. See Ex. 6 & Ex. 7 at 2.

Despite these glaring deficiencies in the documentation the defendant concluded that "a clear chain of evidence" existed. Ex. 7 at 10. He relied on Form 2082 and "primarily " Tr. 69 the Continuity Form. See id.

Wolff certainly requires that the handling and processing of . . . inmate [urine] samples be done in such a way as to insure the basic integrity of the system. An inmate has a legitimate liberty interest in this subject matter and has a right to expect minimal due process safeguards to insure that samples are not mishandled by correctional officers. Given the realities of the correctional setting these procedures must be reasonably definite and must be fully and carefully documented at all stages. Such procedures serve the best interests of the correctional system as well as the limited due process rights of the inmate.

Wykoff v. Resig 613 F. Supp. 1504 1513 (N.D. Ind. 1985). Although "technical rules of evidence do not apply in prison disciplinary proceedings " Price v. Coughlin 116 A.D.2d 898 899 498 N.Y.S.2d 209 210 (3d Dep't 1986)(mem.) appeal withdrawn 69 N.Y.2d 743 504 N.E.2d 700 512 N.Y.S.2d 1032 (1987)(mem.); see Wolff 418 U.S. at 566-68 (under certain circumstances prison officials not required to afford prisoners rights of confrontation and cross-examination at disciplinary hearings); Helms v. Hewitt 655 F.2d 487 501-03 (3d Cir. 1981) (subject to certain conditions meant to afford prisoner minimum due process prison authorities may base determination on testimony by unidentified informant) rev'd on other grounds 459 U.S. 460 74 L. Ed. 2d 675 103 S. Ct. 864 (1983) nevertheless "the basic integrity of the system" must be insured. Wykoff 613 F. Supp. at 1513.

Under ordinary circumstances even assuming that failure to follow Directive 4937 requiring that a complete chain of custody appear on Form 2082 is a violation of state law resort to the Continuity Form to complete the chain of custody could satisfy the due process clause. See Davis v. Scherer 468 U.S. 183 192-93 82 L. Ed. 2d 139 104 S. Ct. 3012 (1984); Patterson v. Coughlin 761 F.2d 886 891 (2d Cir. 1985) cert. denied 474 U.S. 1100 88 L. Ed. 2d 916 106 S. Ct. 879 (1986); Pollnow v. Glennon 757 F.2d 496 501 (2d Cir. 1985). That finding however requires a determination that the Continuity Form possesses sufficient regularity that there is some assurance that the test results are creditworthy. Cf. Helms 655 F.2d at 502-03 (hearsay evidence accepted in prison disciplinary proceeding is probative of the prisoner's guilt only if the record contains facts establishing some indicia of reliability); Harris v. Coughlin 116 A.D.2d 896 897 498 N.Y.S.2d 276 277 (3d Dep't) (mem.) (same) appeal dismissed mem. 67 N.Y.2d 1047 495 N.E.2d 355 504 N.Y.S.2d 91 (1986).

Court concludes that the Continuity Form as executed in this case is not creditworthy. The fact that the response to the first query on the "Check List " the chain of custody on Form 2082 is false the fact that another query is left unanswered and the fact that the plaintiff's specimen may have been delivered to the prison laboratory combine to fatally undermine the credibility of the document. This is not merely a case where there are some "possible discrepancies as to the times the specimen was removed from the refrigerator and the time[] the test[] w[as] performed." See Price 116 A.D.2d at 899 498 N.Y.S.2d at 210.

By March 1985 the law was "clearly established" that minimum due process required a prison disciplinary body to establish a reasonably reliable chain of custody as a foundation for introducing the results of urinalysis tests. Directive 4937 represents recognition of this requirement. The defendant is entitled to qualified immunity only if his conduct in accepting the Continuity Form as creditworthy and probative was "objective[ly] legal[ly] reasonable[]."

The defendant's claimed reliance on the Continuity Form is not objectively legally reasonable. First that form indicated to the defendant that it was not necessary to resort to it to establish the chain of custody since by its own terms it asserted that the primary document Form 2082 was complete. The defendant noted this assertion in the hearing. See Ex. 7 at 2. To accept the defendant's trial testimony that he used the Continuity Form to complete the obviously incomplete chain of custody on Form 2082 it is necessary to conclude that he ignored this assertion. *fn24 Second the form was blank in an area which was required to be completed. The defendant skipped this area when he reviewed the form for the record during the hearing. See Ex. 7 at 2. This was the first item that the defendant skipped over having read all the items above it. See Ex. 7 at 2. Third the form indicates that the plaintiff's specimen was delivered to Downstate's laboratory. The defendant noted this at the hearing while misidentifying Bob Lewis. See id. The defendant also changed "delivered " which appears on the Continuity Form to "removed." See Ex. 6 & Ex. 7 at 2. The defendant then skipped the final entry on the Continuity Form that Bob Lewis "sent" the specimen to an outside laboratory.

The transcript of the hearing Exhibit 7 indicates that the defendant did not attempt to reconcile the inconsistencies on the Continuity Form. The transcript indicates at best that the defendant skimmed over them paying them little attention. In fact the defendant referred to every item on the Continuity Form except two that obviously are problematic. He also changed the wording of one entry. Court infers that this was done intentionally to reduce the chance that it might become problematic. This was not reasonable. Nor was the defendant's failure to inquire why the Continuity Form indicates that the plaintiff's specimen was delivered to the prison laboratory or what happened to it after this delivery.

In conclusion the defendant failed to act in an objectively legally reasonable manner to protect the plaintiff's clearly established due process right that the evidence against him have a sufficient foundation. *fn25 The defendant is not entitled to qualified immunity for his actions in conducting the plaintiff's disciplinary hearing. Therefore he is liable for violating the plaintiff's federal constitutional right to be accorded procedural due process under the fourteenth amendment.

Damages

I. Governing Legal Standards

The Supreme Court has stated on more than one occasion that 42 U.S.C. section 1983 creates "'a species of tort liability' in favor of persons who are deprived of 'rights privileges or immunities secured' to them by the Constitution." Carey v. Piphus 435 U.S. 247 253 55 L. Ed. 2d 252 98 S. Ct. 1042 (1978) (quoting Imbler v. Pachtman 424 U.S. 409 417 47 L. Ed. 2d 128 96 S. Ct. 984 (1976) & 42 U.S.C. SEC. 1983) quoted in Memphis Community School Dist. v. Stachura 477 U.S. 299 305-06 91 L. Ed. 2d 249 106 S. Ct. 2537 (1986). "Accordingly when SEC. 1983 plaintiffs seek damages for violations of constitutional rights the level of damages is ordinarily determined according to principles derived from the common law of torts." Stachura 477 U.S. at 306. Thus "damage awards under SEC. 1983 should be governed by the principle of compensation." Carey 435 U.S. at 257; see id. at 254-57; Stachura 477 U.S. at 306-07.

"Compensatory damages may include not only out-of-pocket loss and other monetary harms but also such injuries as 'impairment of reputation. . . personal humiliation and mental anguish and suffering. '" Stachura 477 U.S. at 307 (quoting Gertz v. Robert Welch Inc. 418 U.S. 323 350 41 L. Ed. 2d 789 94 S. Ct. 2997 (1974) (ellipsis in original)). A plaintiff may recover for "distress " defined as "mental suffering or emotional anguish." See Carey 435 U.S. at 260-64 & n.20.

To recover actual damages for distress the plaintiff must prove that such injury actually was caused by the deprivation of due process. See Carey 435 U.S. at 262-64. The plaintiff is not entitled to recover for distress created by a justified deprivation of an interest protected by the Constitution. See id. At 263. If the plaintiff is unable to prove actual injury he is "entitled to recover nominal damages not to exceed one dollar." See id. at 254-57; id. at 266-67; Powell v. Ward 643 F.2d 924 934 (2d Cir.) (per curiam) cert. denied 454 U.S. 832 70 L. Ed. 2d 111 102 S. Ct. 131 (1981).

Once the plaintiff has proven that he suffered actual injuries the defendant may prove that the constitutional deprivation did not cause the injuries. The defendant bears the burden of proof to show that the deprivation did not cause the plaintiff's injuries. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle 429 U.S. 274 285-87 50 L. Ed. 2d 471 97 S. Ct. 568 (1977); Franklin v. Aycock 795 F.2d 1253 1263 (6th Cir. 1986); Kendall v. Board of Educ. 627 F.2d 1 6 n.6 (6th Cir. 1980). The defendant can meet this burden by proving that the same result would have been reached absent the due process violation. See Carey 435 U.S. at 260; Kendall 627 F.2d at 6 & n.6; see also Wheeler v. Mental Health & Mental Retardation Auth. 752 F.2d 1063 1071 (5th Cir.) ("back pay is not recoverable when the employer can show that the discharge would still have occurred absent procedural [due process] defects") cert. denied 474 U.S. 824 88 L. Ed. 2d 64 106 S. Ct. 78 (1985); Burt v. Abel 585 F.2d 613 616 (4th Cir. 1978) (since plaintiff's discharge was justified on remand plaintiff would be precluded from alleging as damages from procedural deprivation lost pay or lost retirement-fund contributions). If the defendant can meet his burden then the plaintiff can recover only nominal damages for his actual injuries. See Carey 435 U.S. at 267; Stein v. Board of New York 792 F.2d 13 18-19 (2d Cir.) (reversible error not to instruct jury to award only nominal damages if jury finds complainant would have been discharged even if he had received procedural due process) cert. denied 479 U.S. 984 93 L. Ed. 2d 576 107 S. Ct. 572 (1986).

The foregoing rule applies to all injuries except distress. The plaintiff may recover for his distress caused by the failure to be accorded due process even if the defendant proves that other injuries the plaintiff claims are not caused by the failure of the defendant to accord the plaintiff due process. See Carey 435 U.S. at 264 ("mental and emotional distress caused by the denial of due process itself is compensable under SEC. 1983"); Wheeler 752 F.2d at 1072 ("Irrespective whether [the plaintiff] would have been discharged . . . absent procedural defects she may recover for mental or emotional distress flowing from the loss of her procedural rights.")(emphasis in original); Burt 585 F.2d at 616 (holding that although on remand the plaintiff will not be allowed to allege and prove pecuniary injuries and resulting damages she may allege distress and resulting damages) (quoting Carey 435 U.S. at 261).

Finally punitive damages may be awarded in an action under section 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent or when it involves reckless or callous indifference to the federally protected rights of others. . . . This threshold applies even when the underlying standard of liability for compensatory damages is one of recklessness." Smith v. Wade 461 U.S. 30 56 75 L. Ed. 2d 632 103 S. Ct. 1625 (1983); see Bradley v. Coughlin 671 F.2d 686 690 (2d Cir. 1982).

II. Application to the Facts

A. Punitive Confinement

In Sostre v. Rockefeller 312 F. Supp. 863 (S.D.N.Y. 1970) aff'd in part modified on other grounds in part rev'd on other grounds in part sub nom. Sostre v. McGinnis 442 F.2d 178 (2d Cir. 1971)(en banc) cert. denied 404 U.S. 1049 30 L. Ed. 2d 740 92 S. Ct. 719 405 U.S. 978 31 L. Ed. 2d 254 92 S. Ct. 1190 (1972) the district court awarded the plaintiff who had been denied procedural due process a per diem figure for time spent in "punitive segregation " see 442 F.2d at 182-83 taking into account various factors. See the amount awarded $25.00 per day "is not unreasonable." 442 F.2d at 205 n.52. *fn26 Other courts have elected to follow the approach of Sostre. See e.g. r day); Pino v. Dalsheim 605 F. Supp. 1305 1319 (S.D.N.Y. 1984) ($25.00 per day); Pitts v. Kee 511 F. Supp. 497 504 (D. Del. 1981) ($30.00 per day); Taylor v. Clement 433 F. Supp. 585 589 (S.D.N.Y. 1977) ($25.00 per day); United States ex rel. Neal v. Wolfe 346 F. Supp. 569 576 (E.D. Pa. 1972) ($25.00 per day). This court adopts this approach.

Some of the factors the district court considered in Sostre are present here. Those factors are: loss of work opportunities loss of money which might have been earned by working and loss of schooling opportunities. Court also considers the duration of the confinement and the conditions of the confinement. See Adams 624 F. Supp. at 1041.

The sixty days' confinement imposed on the plaintiff is longer than that imposed in every one of the cases already cited except Sostre itself. See Adams 624 F. Supp. at 1041 (five days); Pino 605 F. Supp. at 1319 (forty-five days); Pitts 511 F. Supp. at 504 (six days); Taylor 433 F. Supp. at 589 (thirty days); Sostre 312 F. Supp. at 885 (three hundred seventy-two days). Further unlike Sostre the plaintiff in this action was prohibited from communicating with other prisoners while in punitive confinement. See supra note 7. Compare Sostre 442 F.2d at 185 (explaining that Sostre did communicate with other prisoners) with Tr. 33-34 (the plaintiff was not allowed to have contact with other prisoners in his immediate area). On the other hand the plaintiff was not held naked nor was he without bedding. See O'Connor v. Keller 510 F. Supp. 1359 1372 1375 (D. Md. 1981) (awarding prisoner $100.00 per day for time held in isolation without mattress blanket toilet paper or for part of the time clothing). Taking these factors into consideration Court determines that the plaintiff shall be awarded fifty ($50) dollars per day of punitive confinement for a total of three thousand dollars. *fn27

B. Other Pecuniary Damages

As a direct result of the disciplinary action the plaintiff was reassigned to a different job. His pay was cut from $1.55 per day to $0.30 per day. See supra findings of fact 1 19. "Lost prison wages are ascertainable and recoverable[in a section 1983 action]." Bradley v. Coughlin 671 F.2d at 690; see Wolfe 346 F. Supp. at 576 (awarding lost wages from change in job status upon release from solitary confinement). The plaintiff was released from punitive segregation on April 21 1985. See Ex. 7 at 9. He was released from prison in November 1985. Because no exact release date was provided to Court Justice awards these damages for the period of April 21 1985 to November 1 1985 a period of one hundred ninety-four days. The plaintiff is awarded two hundred forty-two dollars and fifty cents (194 x $1.25) ($242.50) for lost wages.

As stated previously the defendant can avoid liability for these pecuniary damages by demonstrating that the plaintiff would have been found guilty even if he had been accorded procedural due process. See discussion supra at 21. However the defendant failed to present evidence at the trial that would verify independently the chain of custody for the plaintiff's urine specimen to the National Health Laboratories. See supra finding of fact 25. Therefore the defendant is liable for the pecuniary damages flowing from the punitive segregation and from the plaintiff's lost wages.

C. Distress

There remains the matter of distress damages. Court distinguishes distress flowing from the fact of punitive segregation from distress flowing from the plaintiff's transfer to Dannemora. No evidence was presented to indicate that the plaintiff suffered distress from his disciplinary confinement. Therefore the plaintiff is entitled only to nominal damages in the amount of one dollar for the distress suffered during the period of punitive segregation. See Carey 435 U.S. at 262-64 266-67; Maldonado Santiago v. Velazquez Garcia 821 F.2d 822 829 (1st Cir. 1987).

As for distress flowing from the plaintiff's transfer Court has no doubt that the plaintiff suffered mental anguish at being transferred to a prison that made it impossible for his wife and youngest child to continue to visit him as they had been doing almost once per week. See Tr. 14-15. The letters to Governor Cuomo and Commissioner Coughlin see supra findings of fact 20-24 *fn28 provide sufficient evidence that Court may infer mental anguish. *fn29

Nevertheless Court concludes that the defendant is not liable for this injury. The defendant testified that he neither ordered that the plaintiff be transferred to another facility from Downstate nor had the power to issue such an order. See Tr. 77. More importantly there was no evidence presented that the plaintiff necessarily would be transferred to Dannemora or even a similarly inconvenient in terms of his family's ability to visit the plaintiff facility. The plaintiff's May 7 1985 letter to Commissioner Coughlin indicates that there are at least two facilities the plaintiff could have been transferred to in which he could have continued to receive visits from family members. See Comp. Ex. D4. Thus the transfer to Dannemora was not inevitable.

Court has considered the factors contained in section 435 B of the Restatement (Second) of Torts (1965). *fn30 The defendant did not act with malevolent intent to punish the plaintiff. See supra note 25. Further the unintended harm is hardly foreseeable even assuming the defendant was aware of the plaintiff's unique personal circumstances because the plaintiff could have been transferred to another facility that would have been close enough to New York City to allow his family to continue to visit him. Lastly the intended harm while serious is not on a par with defamation see Carey 435 U.S. at 262-264 (plaintiff must prove actual distress flowing from procedural due process violation whereas defamation distress damages are presumed) or assault. See Restatement (Second) of Torts SEC. 435 B illustration 1 (actor who intentionally hits victim over head may be held liable for serious harm to victim from administration of poison instead of medicine at hospital). Therefore no damages are awarded for the plaintiff's regrettable distress flowing from the separation from his family. The chain of causation is too attenuated to hold the defendant responsible. No damages either nominal or actual are warranted.

D. Punitive Damages

Finally punitive damages are not merited in this action. The defendant did not exhibit a "reckless or callous disregard for the plaintiff's rights " Smith 461 U.S. at 51 or "actual intent to injure or evil motive." Id. at 48.

In his complaint the plaintiff also sought mandatory injunctive relief requesting that Court expunge this adjudication of guilt from his prison record. It is Court's understanding that "an inmate's disciplinary file is used collaterally by prison authorities in making other decisions concerning the nature and length of the inmate's confinement." Pino 605 F. Supp. at 1319; see Powell v. Ward 487 F. Supp. 917 935 & n.16 (S.D.N.Y. 1980) aff'd per curiam 643 F.2d 924 (2d Cir.) cert. denied 454 U.S. 832 70 L. Ed. 2d 111 102 S. Ct. 131 (1981). If such records are used only during the course of the confinement in which the violation occurs there is no need for injunctive relief here. The plaintiff has finished his sentence; he is a free man. The issue appears to be moot. If there are other collateral consequences that may attach or have attached from the disciplinary record the plaintiff is granted leave to move on notice to renew the request for injunctive relief.

CONCLUSION

Judgment will be entered for the plaintiff against the defendant Lord in his individual and official capacity in the amount of $3 243.50 ($3 000.00 for punitive segregation plus $242.50 for lost wages plus $1.00 nominal damages for distress caused by the punitive segregation). Plaintiff's Counsel are directed to serve and file a proposed Judgment in accordance with the terms of this Opinion and Order within seven days from the date this Opinion and Order is filed with the Clerk of Justice providing five days' notice to the defendant.

In addition plaintiff's Counsel should submit their application for an award of Counsels' fees pursuant to 42 U.S.C. section 1988 no later than three weeks following the entry of Judgment. Defendants will have two weeks to respond to any such application. Plaintiff will have one additional week to reply. Court will determine whether an award of fees is warranted and the amount of any such award on the basis of those papers unless it becomes apparent that an evidentiary hearing is necessary.

SO ORDERED.

APPENDIX A

[SEE JOINT TRIAL EXHIBIT #6 IN ORIGINAL]

APPENDIX B

Tier III Hearing - SOTO Raul 78-A-4144 - Held at the Downstate Correctional Facility by Gordon Lord Program Coordinator - February 26 1985 March 5 1985

Gordon Lord: "This is Downstate Correctional Facility. My name is Gordon Lord Hearing Officer. This tape will record all proceedings for today's date 2/26/85 being held in the hearing room of the Adjustment Committee Suite at Downstate. The time is now 10:45 a.m. and the date again is 2/26/85. Ah this is a - with me in the room is Inmate Raul Soto who I know from personal knowledge ah; Officer R. Stone - Officer R. Stone who ah is helping me record these proceedings. Um this is a Tier III of the Three-Tier Disciplinary Procedure. The entire proceeding is recorded and you may have witnesses on your behalf. Nothing said by you at this hearing will be used against you in a criminal proceeding. Do you understand that?"

Raul Soto: "Yes sir."

Gordon Lord: "Alright. Would you identify yourself please name and number."

Raul Soto: "My name is Raul Soto 78-A-4144."

Gordon Lord: "Alright ah formal charges were served on you by G. Hinkson date 2/20/85 11:00 a.m. ah Assistant Assigned: L. Cecilia 2/20/85 at 11:00 a.m. Now the Misbehavior Report reads as follows: Name of Facility: Downstate Correctional Facility Misbehavior Report - Name of Inmate: Soto Raul; Number: 78-A-4144; Cell 4-D-21. Location of Incident: Tier III - meaning Tier Adjustment Committee Officers. Date: 2-20-85; Time: 7:00 a.m. Rule Violation: 113.12 Use of Narcotic or Controlled Substance. Description of Incident: On 2/20/85 per National Health Lab you were found with a 42 NG/ML or greater on the marijuana screen. Collection Date: 2/15/85. Reported - Report Dated: 2/19/85; Account 2299033. Signed dated 2/20/85 - G. Hinkson C.O. Was more than one inmate involved? No. Ah No. 6. is not applicable. No. 7. - Was inmate locked in cell as a result of this incident? Yes. Was inmate locked in other housing unit? No. Confinement was authorized by Lt. Rivenburgh. Ah now for the record here I have to get you to ah just make a simple statement whether you admit or deny the charge."

Raul Soto: " Not guilty."

Gordon Lord: "Alright so you're denying the charge. Okay. What I'd like you to do at this point is to sign right here indicating that you have in fact denied the charge."

C.O. Stone: "Date and time right there. The date is 2/26/85; time is 10:47."

Gordon Lord: "The voice you're hearing is that of Officer Stone. Alright. What we've got here is the Assistant Sheet indicating that you ah have requested the following two witnesses: C.O. Ciangiola from Draft ah; there's a parenthesis after here that says 30 minutes and C.O. Knapp Sr. Draft 20 minutes. What does the time frames mean? Is that --"

Raul Soto: "I spent about 30 minutes with Officer Ciangiola when I first walked into the facility from my furlough and then I spent about 20 minutes with Officer Knapp."

Gordon Lord: "Okay. Now what we have - I'll go through all of the paperwork that I have here so that you're aware of what it is. That's the Misbehavior Report I already read. This is a report from National Health Labs okay? - which in fact says ah 'marijuana screen 42 NG/ML.' Okay? Guidelines of Profile is a drug screen ah which basically just explains the normal testing process here ah this is ah a statement by you saying you've gotten a copy of that Profile of Drug Screen Request for Urinalysis Testing and copy of the National Health Lab Report and also a copy of Chapters V and VI New York State Department of Correctional Services Rules and Regulations. This is a request for urinalysis test and Name: Raul Soto. Request Made By: C.O. Knapp dated 2/15/85. Agent Suspected: Routine analysis for drug and alcohol - furlough return.

Action Leading to Request: routine analysis - family reunion from furlough. Test Approved By: Lt. Utter ah Date: 2/15/85. Inmate told the underlying reason why he is being ordered to submit a urine specimen (circle one) - routine. By: R. Knapp; Date: 2/15/85 at 10:00 a.m. - 10:15 a.m. Has inmate taken medication recently? No. Specimen witnessed and obtained by: R. Knapp. Specimen tested by: the dates and times are all here. I don't think there's any great need to read them. Ah Specimen tested by: National Health Lab. 2/19/85. Results: 42 NG/ML Marijuana Screen. There's no completion here of second test. Ah Chain of Custody: Inmate Raul Soto to R. Knapp 2/15/85 10:15 a.m. from R. Knapp to refrigerator in hospital 2/15/85 10:25 a.m. Urinalysis Check Sheet/Continuity Form which is filled out here it's -- indicates that you were ordered and why you've been ordered. Was inmate asked if he has taken medication recently? Yes. Did inmate agree to submit specimen? Yes. Was inmate handed specimen bottle indicating inmate's name number date staff witness and other relevant information in ink or typed and asked to acknowledge information on whether it was correct? Yes. Was inmate pat-frisked prior to test to insure that specimen submitted is that of inmate? Yes. If inmate did not provide urine specimen within three hours did employee make appropriate entry on request? Yes. Chain of Custody Form? Yes. Test conducted in the facility hospital clinic or other appropriate area? Yes. One form - one copy of Form 2082 sent to Disciplinary Office? Yes. Specimen secured in refrigerator in hospital - R. Knapp. Specimen removed from the refrigerator: There is a nurse's signature here. I can't really read it too well. Ah.

Specimen removed to the facility lab on 2/15/85 by - looks like (sic) R. Ludden to me who I believe is an employee of National Health Labs. Alright what do you have to say Mr. Raul Soto?"

Raul Soto: "I'd like to refer back to your National Health Lab's report and I'd like you to read that label."

Gordon Lord: "Label reads 'Positive cannabinoid results should be confirmed by an alternate method. If you wish further testing (at an additional charge) contact laboratory within 24 hours'."

Raul Soto: "Do you know if that test was done?"

Gordon Lord: "I have no record of it being done no."

Raul Soto: "So this was never confirmed so we don't (unintelligible - background noise) conclusive the test?"

Gordon Lord: "Well I'm not sure of that but I'll take that message and I'll find out."

Raul Soto: "I appreciate it Officer. This marijuana is a lie - that I had it when I walked in here. That's why I specified the times on Officer Knapp and Officer Ciangiola. That ah it's like I walked in here high from my furlough and that's why I asked Officer Knapp and Officer Ciangiola to verify that I walked in here straight and narrow like I always did on my last furlough. What I want to - what I want to specify to you ah Mr. Gordon Lord you know - you know me personally. The last 3 1/2 years everything that I've done on my record has been positive - school graduated from Marist College just got my degree just got a letter from my job. Doing something as ridiculous as this is like saying I'm going to throw away my whole future. It's not within my character to do something like this. That's my only defense because there has to be an error somewhere in this test. I'm not saying Officer Knapp made a mistake or any - but there has to be an error. I do not do this. Since 1981 my life changed over. I had a lot of trouble before 1981. In 1981 my father passed away. I decided to look at my responsibilities to re-do my life and I've done that and I haven't had a ticket since then. I finally went out on a successful furlough. I went out on a job interview. I got my job. This is going to throw my whole life away. I'm going to throw it all away for a high? It's not like me. I'm my (sic) only person."

Gordon Lord: "You're saying that you did not use any marijuana while you were out on furlough?"

Raul Soto: "No sir."

Gordon Lord: "Did you use anything at all?"

Raul Soto: "I had three heinikens on my birthday which was February 10 1985 with my family. I had fourteen members of our family in my house and I had three heinikens which might according to my um to my furlough papers says I can use alcohol but not to abuse it. If you won't believe me --"

Gordon Lord: "No I'm familiar with this - agrees." (sic)

Raul Soto: I've had - I've had thirteen family reunion visits while I've been in this facility so I know the routine of these tests. I know what they test for. I don't use it. I have not used marijuana while I was on my furlough - on any of my furloughs.

Gordon Lord: "Alright ah let me just go to Officer Stone here and clarify something. Ah didn't we at one point used to do our own urinalysis testing here?"

C.O. Stone: "Yes sir. Whenever they go to a family reunion they - because we can only test for certain - certain items we send them to the National Health Laboratories where they test for everything. I can - I can give you a piece of paper. I'll show you something. I'll be right back. One second."

Gordon Lord: "Alright."

C.O. Stone: "I'm going to show you how long it can last in your system."

Gordon Lord: "Officer Stone is leaving the ah room at this point. My current expectation is that I will talk to Officer Knapp. Officer Knapp would have been the first officer to have received you. The other officer the other witness I don't know if that's necessary if what Officer Knapp says supports what you say - that you were not - you did not appear to be - okay? Ah if there's any problems if you - you ah (unintelligible) disallow the testimony of Ciangiola only because that is conflicting; it doubles up on it. If there is a problem with it they have to go to Knapp. We ah --"

C.O. Stone: "This is from Emit System which is the one that we use here. But this will just give you a guidelines how long you can test for this drug."

Gordon Lord: "Alright. Marijuana use in typical level and marijuana users of one to four joints a week can be detected on this testing system for three to five days after discontinued smoking. Heavy drug uses of one joint or more per day are detectable for at least seven to ten days. One four-joint per day user was consistently positive for fifteen days after discontinuance. Ah it then shows a pattern of alternating negative/positive results. It was positive on the twentieth and final day of study. Um there's another simpler less sensitive test which ah in (unintelligible) moderate users would be good for one to two days after discontinuing smoking and heavy users for two to four days. We don't know if that is the same test that this National Health Lab uses. Okay. Now I'll check on the type of calendars (sic) for testing whether or not a second test to confirm should be done and all that kind of stuff. What we're going to do at this point is get Officer Knapp in here unless you have objections or there is something else you can say at this time."

Paul Soto: "No sir."

Gordon Lord: "What I have to caution you is that you are not allowed to question Mr. Knapp directly."

Raul Soto: "Okay."

Gordon Lord: "What you have to do is make all your questions to me. I will then relay them to Mr. Knapp. Sometimes I will restate the whole question or paraphrase this question. Sometimes I will just say - ask Mr. Knapp to respond to the question; but you are not allowed to question Mr. Knapp directly."

C.O. Stone: "Officer Ciangiola will be here very shortly."

Gordon Lord: "Oh I was going to disallow his testimony but since he's coming up we might as well hear from him. Officer Knapp would you identify yourself for the record please?"

C.O. Knapp: "Officer Robert Knapp Correction Officer."

Gordon Lord: "Okay. Did you welcome this young gentleman Raul Soto back from his recent furlough?"

C.O. Knapp: "Yes I did."

Gordon Lord: "And this is the same furlough on which you took a urine specimen and filled out all the appropriate forms?"

C.O. Knapp: "Yes it is."

Gordon Lord: "And the first question that Mr. Soto - Mr. Soto I presume wishes me to ask is did you notice or detect any indication that he was under the influence of any drug at the time that he returned?"

C.O. Knapp: "No I did not."

Gordon Lord: "Okay. Was there any hesitancy involved in him giving the urine test? Was there any indifference?"

C.O. Knapp: "Mr. Soto gave us ah was processed in with no problems at all. He gave the urine willingly. We had no hold up on it."

Gordon Lord: "You also processed the Family Reunion Returns. Is that correct?"

C.O. Knapp: "No I did not."

Gordon Lord: "So this was your first contact with Mr. Soto in this kind of relationship?"

C.O. Knapp: "Ah --"

Gordon Lord: "On return not worrying about clothing or anything else."

C.O. Knapp: "Was this your first --"

Raul Soto: "My second furlough."

C.O. Knapp: "Second furlough. I have not - I don't recall if I did his first one or not when he returned --"

Gordon Lord: "Alright."

C.O. Knapp: " -- cause I have a relief factor."

Gordon Lord: "Okay. Mr. Soto is there any other questions you wish to ask?"

Raul Soto: "No other questions."

Gordon Lord: "Okay. Is there anything you wish to contribute?"

C.O. Knapp: "No there isn't." Gordon Lord: "Thank you Officer Knapp."

C.O. Knapp: "(unintelligible)."

Gordon Lord: "The question seems to be coming down as to whether or not the test itself okay? - is appropriate based on that label of step one stating that it should be confirmed within 24 hours and the second furlough engage in the use of marijuana. Um and whether or not the level reading okay would indicate ah what kind of use right? Let me see if you don't mind the ah furlough agreement that you signed corrah technically called a contract."

Raul Soto: "This one?"

Gordon Lord: "Any one. They're all condescending (sic) forms. I'm not really too concerned about. Ah bm bm bm bm - scanning it now so tape will seem quiet for a bit. Alright. The item here that states - is the Item No. 6. I believe. 'I will not use possess purchase controlled substance or use or possess drugs that have been unlawfully obtained.' Ah let's see the next statement. You've complied with everything else it appears so what we really have to do at this point is wait for Officer Ciangiola alright? I'll give you back your piece of paper. I'm going to go off the tape ah just to save tape basically unless you have any objections to it."

Raul Soto: "No sir."

Gordon Lord: "During this time I would refrain from talking about anything that deals specifically with these charges. Is that okay?"

Raul Soto: "Okay."

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Gordon Lord: "The hearing was adjourned at 11:03 and the time is now 11:08. Officer Ciangiola - I hope I'm saying his name right - close enough - is present. Could you verbally identify yourself?"

C.O. Ciangiola: "My name is Officer William Ciangiola. I work in the Draft Reception Area."

Gordon Lord: "Okay. What the inmate basically wants asked is during the time that you processed this man in from his furlough did you notice any indication whatsoever that he was under the influence of anything?"

C.O. Ciangiola: "I didn't process him in. I was in the Reception Area when he came in. I spoke to him for about twenty minutes waiting for the officer to process him and he didn't appear to myself to be under the influence of anything - okay as far as he was responsive and his eyes weren't glassy or anything to that affect."

Gordon Lord: "Alright. Is there any other questions you want me to ask this officer?"

Raul Soto: "No sir."

Gordon Lord: "Ah you have had much experience in terms of receiving inmates and noticing those kind of things --"

C.O. Ciangiola: "Right."

Gordon Lord: " -- when an inmate is not behaving normally or is apparently under the influence of something correct?"

C.O. Ciangiola: "Correct."

Gordon Lord: "Alright. Is there anything else you'd like to add?"

C.O. Ciangiola: "No that's all you know."

Gordon Lord: "Okay very good. Is there any other questions you'd like me to ask?"

Raul Soto: "No sir."

Gordon Lord: "Alright Officer thank you very much."

C.O. Ciangiola: "Fine. (sic) What I'm going to do at this time is I'm going to adjourn the hearing ah until I can get back after checking out with competent medical authority what this sticker - label - actually means and what a reading of 42 NG/per milliliter actually means. Ah I have no idea when I'll be getting back to you okay? The question is though that if there is ah if you seem to remember at any time of being in an area whether any kind of illegal drugs were used whether you used them or not yourself okay? - whether it be a public area such as a bar or a nightclub or something like that. I'd appreciate you're letting me know it the next time around. Alright? Ah but in the meantime I have to adjourn the hearing until such time as I get more up-to-date on what this test results actually - actually means because you've raised the questions about how high the reading is ah and what that second label actually means alright? Do you have any questions or problems?"

Raul Soto: "No sir."

Gordon Lord: "One thing I have to do - I do have to ask you ah you don't have any trouble understanding the English language?"

Raul Soto: "No sir."

Gordon Lord: "You don't have any trouble understanding the proceedings that have gone on today?"

Raul Soto: "No sir."

Gordon Lord: "Do you have any need of a Spanish interpreter for any of these proceedings?"

Raul Soto: "No sir."

Gordon Lord: "Okay. I presumed since I already knew you were able to converse in English that you didn't need that. I just wanted to clarify it for matters of the record. Alright. This hearing is adjourned at 11:11 a.m.

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Gordon Lord: "Okay. The date is 3/5/85. The time is 10:12 a.m. My name is Gordon Lord Hearing Officer. Ah this is Downstate Correctional Facility. This is a continuation hearing of Tier III Misbehavior on Inmate Raul Soto 78-A-4144. Ah with me in the room which is one of the rooms in the Adjustment Committee Suite is Officer Stone who is helping me to record the hearing; Inmate Raul Soto who I know from personal knowledge and myself. Ah theoretically I'm supposed to read all this stuff to you - the formal charges were served by Officer Hinkson on 2/20/85 at 11:00 a.m. The Assistant assigned was L. Cecilia 2/20/85 11:00 a.m. The charge is 113.12 Use of Narcotic and Controlled Substance. Ah the main thing I really am supposed to read to you and get you to do here is - I keep forgetting this thing - is that ah this is a Tier III of the Three-Tier Disciplinary Procedure. The entire proceeding is recorded You may have witnesses on your behalf. Nothing said by you at this hearing can be used against you in a criminal proceeding. Do you understand that?"

Raul Soto: "Yes."

Gordon Lord: "Okay. Originally when we first started this thing you said that you denied all the charges. Do you wish to change your plea at this time?"

Raul Soto: "No sir."

Gordon Lord: "Alright Mr. Soto. I've heard all the evidence from all the witnesses that you asked to provide which was Officer Knapp and Officer Ciangiola. Ah I've heard your statements. Ah I did a little bit further investigation through Captain Acosta. Um basically the National Health Labs utilizes the same ah testing procedure that we use here at the facility. The reason we send it out is just primarily matters of convenience and cost effectiveness. Ah the notation here I've checked with the Nurse Administrator Ms. Carpenter the ah - there's a notation on the medical - on the laboratory analysis report from National Health Labs. It says that 'Positive cannabinoid result should be confirmed by an alternate method. If you wish further testing (at an additional charge) contact laboratory within 24 hours.' Ah there are two basic statements concerning that. Number one the laboratory is saying that if we wish a confirmation of the level okay - um you're not questioning the validity of the exam alright? Just a matter of whether or not you would test out at 42 NG per milliliter or whether it would be 43 or 78 or 21 or whatever the number would be. They're not questioning the fact that there is a positive result. It has been told to me by either Captain Acosta or Ms. Carpenter that there is a 99% validity rate in this testing okay so 99 out of 100 times this testing result is going to be correct - alright - which scientifically is a very high indicator of correctness if you want to use that word. Now in reviewing the testimony in my mind over these last few days okay - I notice that you said that while you were out on furlough you did not use any controlled substance specifically marijuana. The question I have to ask you is did you happen to use anything prior to your going out on furlough?"

Raul Soto: "No."

Gordon Lord: "So what we have very simply is a case where we have the chemical evidence on a reasonably valid test that within your system ah --"

Raul Soto: "Unintelligible) you had asked me if I remembered anything that I didn't um say in the first hearing - like I said I was on a public bus for about 6 1/2 minutes with my wife. We were going shopping. There were about five kids in the back of the bus. They were smoking marijuana. While I was sitting on the bus I could have inhaled the stuff. That's the only way possible that I could think of that I would come in contact with it in any way manner or form since I started going out on furlough."

Gordon Lord: "Okay. This reading - this indication here I believe I read to you once before."

Raul Soto: "Yes."

Gordon Lord: "This kind of level result would indicate a much more involved contact with it than -ah than you're indicating at this point. Um there isn't very much I can do at this point. Okay. Um the simple reality is that we have chemical evidence that you in some way ingested ah something okay? - that gave you a positive result for a cannabinoid. I'm not saying you ate marijuana. I'm saying in some way either you smoked it or in some other way ingested it. Ah while it is true that ah the officers testified that you came back and you did not show any signs of intoxication or being under the influence of the results ah the testing results does indicate that you had involvement ah and really what we've got here is a case where there is apparently at this point administrative surety alright? There is a reasonable ah pile of evidence here that indicates that you did in fact use marijuana. Now unless you have something further to say or unless you wish to

--

Raul Soto: "The only thing I have to say is that I was on a furlough in January (sic) within twenty days before this test was taken and I was tested then. That's all I have to say."

Gordon Lord: "Alright. Well then basically the only thing we have to do at this point is complete the paperwork here because I'm - based on this ah this preponderance of evidence 'I'm going to have to find you guilty of 113.12 Use of Narcotic or Controlled Substance. Okay. The Statement of Evidence Relied Upon is the MHL National Health Labs -- to Officer: Where is the Urinalysis --(pause) Reasons for Disposition Penalty Imposed is the -- (long pause) The penalty imposed will be a Sixty-Day Confinement to SHU or Cell and a Sixty-Day Loss of Commissary Phone --"

C.O. Stone: "Packages also?"

Gordon Lord: "Packages - and - Release Date --"

C.O. Stone: "April 21st."

Gordon Lord: " --21/1985."

Raul Soto: "Is that cell confinement?"

Gordon Lord: "(Unintelligible) At the discretion of the Watch Commander. We have - I'm sorry I signed in the wrong location. Okay. Just sign under where I scratched out my name here - Inmate's Signature. Mr. Soto because of my personal knowledge of you I feel very bad about this circumstance. I wish there was something that we could do ah but as I said to you the preponderance of evidence is clear here. We've got a very reliable examination. We've got a clear chain of evidence. Ah unfortunately there isn't very much else that we can do in terms of that."

Raul Soto: "I feel ah feel the sentence is excessive - excessive because when Eddie Carson (sic) I remember about eight months ago had the exact same problem he got thirty days in his cell. I understand he lost all his privileges but (unintelligible) amount of time."

Gordon Lord: "The reason that we're assessing that penalty is as I stated - on the 'Reasons for the Penalty Imposed' - ah is the severity of using narcotics in or while on release from a correctional facility ah the possession of which in a correctional facility is also a violation of law. Ah possession of it out on the street is a violation of law. Ah I understand that the consumption of such is not a violation of law. While it may sound severe to you it apparently as far as I can tell is roughly comparable to defined penalties that are being imposed in this type of facility at this level of security. You may appeal in writing to the Commissioner.

to Officer: Ah Mr. Stone isn't this bottom paragraph changed? The Superintendent is out or did we put the Superintendent back on?"

C.O. Stone: "The Superintendent is out. We still use the old forms sir."

Gordon Lord: "Okay so you can appeal this disposition to the Commissioner. There is no time limit on it but I would recommend that you do it within thirty days."

C.O. Stone: "Okay. Is there any further comments you wish to make Mr. Soto?"

Raul Soto: "No sir. I would like to go back to my cell and get my house in order."

Gordon Lord: "Okay. This hearing is terminated at 10:25 on 3/5."

I Betty Symer do hereby certify that I recorded stenographically the proceedings herein at the time and place noted in the hearing thereof and the foregoing is an accurate and complete transcription of same to the best of knowledge and belief.

Betty Symer

Principal Stenographer