Higgs v. Bland

Decision Date27 October 1989
Docket NumberNos. 88-5348,88-5352,s. 88-5348
Citation888 F.2d 443
PartiesJames Carl HIGGS, et al., Plaintiffs-Appellants, v. David H. BLAND, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

James Carl Higgs, Eddyville, Ky., pro se.

Elmer Deaton, et al, pro se.

Thomas J. Banaszynski, Oliver H. Barber, Jr., Gittleman, Bleidt & Barber, Joseph S. Elder, II, argued, Robert A. Lee, Louisville, Ky., for plaintiffs-appellants.

Thomas B. Ray, pro se.

Barbara W. Jones, Glenda Hardison, Office of the Atty. Gen. of Kentucky, Frankfort, Ky., Joseph M. Whittle, U.S. Atty., Hancy Jones, III, Asst. U.S. Atty., Office of the U.S. Atty., Louisville, Ky., Mitchell Dale, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., Connie V. Malone argued, Office of General Counsel, Frankfort, Ky., Linda G. Cooper, argued, Nashville, Tenn., for defendants-appellees.

Before KEITH, KENNEDY and RYAN, Circuit Judges.

KEITH, Circuit Judge.

In this consolidated action, plaintiffs, two classes of prisoners incarcerated at the Kentucky State Penitentiary ("KSP") and the Kentucky State Reformatory ("KSR") appeal from the denial of their motion to alter or amend the order of the district court denying a preliminary injunction enjoining defendants, various Kentucky Department of Corrections officials, from taking disciplinary action against prisoners based on urinalysis tests for drugs. Plaintiffs also appeal the denial of their motion to alter or amend the order of the district court denying an award of attorney's fees pursuant to 42 U.S.C. Sec. 1988 and the provisions of an Agreed Order entered in conjunction with a consent decree entered in a previous action. Kendrick v. Bland, 541 F.Supp. 21 (W.D.Ky.1981). For the reasons which follow, we affirm the judgment below inasmuch as it denied the injunction and declined to award fees under Sec. 1988 vacate the denial of fees under the consent decree, and remand.

I.
A.

Since approximately 1981, the Kentucky Department of Corrections has administered urinalysis tests to prisoners in the Kentucky State Reformatory and the Kentucky State Penitentiary. The specific test used by the State of Kentucky was the Syva EMIT drug detection system. Under the state procedure, when test results indicated the presence of drugs in an inmate's system, the inmate was charged with being "under the influence of drugs or intoxicants." In such cases, only the positive test results were used as evidence to support the inmate's conviction. An inmate, if found guilty, was subject to as much as 45 days in disciplinary segregation and loss of 60 days good time credits.

Experts appearing in this matter have testified that the Syva EMIT is a useful tool in the detection of drug presence in the body of the person tested.

The procedure for the gathering of urine samples was adequately summarized by the counsel for the plaintiffs in the proposed findings of fact beginning at page 2:

The urinalysis testing procedure is relatively simple. A urine sample is taken in the presence of medical and security personnel at the Penitentiary and by security personnel at the Reformatory. The samples are collected by having an inmate urinate into a bottle. These bottles are then sealed in the presence of the inmate, placed in a box which is later sealed, placed in a locked refrigerator in the institution's laboratory or hospital, and subsequently transported to Luther Luckett Correctional Complex for testing by Issa Pirouznia.

Each time the sample comes into the custody and possession of a different individual, a chain of custody form is to be completed. This is to be completed from the taking of the sample until the test results are returned to the institution of origin. The chain of custody is an attempt to protect the integrity of the sample; however, there was ample testimony from inmates as to violations of the chain of custody on paper and in practice.

All samples are tested by Issa Pirouznia, the Corrections Laboratory Technician, at the Luther Luckett Correctional Complex. Mr. Pirouznia testified that he followed accepted laboratory procedures to insure that the test results were accurate. This included cleaning of the machinery, testing vials and other equipment. He also noted that he periodically calibrated the machinery using controlled mediums furnished by the SYVA Company, and in addition would use a method kown (sic.) as a "blank" in an effort to eliminate any false positives. False positives are readings which show a positive presence of a particular drug, when in fact that drug is not present.

Each sample which arrives at the laboratory at Luther Luckett is tested. When a test is positive, the Lab Technician runs a second test on that sample, again using the SYVA Emit System in an effort to insure the test accuracy. At the conclusion of the testing procedures, the Laboratory Technician reviews his test results and indicates with a P (for positive) or an N (for negative) the presence or absence of a particular substance on a summary sheet for the totality of the samples tested in a particular run. These Ns and Ps are then again transferred to the chain of custody form.

The results of the test are returned to the institution where the test subject is a resident. A test result returned positive for a controlled substance will result in disciplinary action. 1 The positive notation by Mr. Pirouznia is usually the only evidence presented at the adjustment committee hearing in support of the charge in the write-up. Requests by inmates to have Mr. Pirouznia present as a witness at the hearings or to have him respond to written interrogatories in lieu of an appearance have been repeatedly denied by the Adjustment Committee.

B.

The first action, No. 85-5701, was brought as a motion for contempt under the consent decree entered in Kendrick v. Bland, 541 F.Supp. 21 (W.D.Ky.1981), and was subsequently consolidated with actions brought by other prisoners. The plaintiffs requested that the district court enjoin defendants from using the Syva EMIT test to punish inmates for the use of drugs. The District Court for the Western District of Kentucky, Judge Johnstone presiding, granted the request and enjoined the defendants from taking any disciplinary action against plaintiffs based solely upon unconfirmed results of Syva EMIT drug detection tests. He further ordered that if these results were offered as evidence in a disciplinary hearing, the defendants were to implement procedures in administering the Syva EMIT drug detection tests which maintain the integrity of the urine sample.

The second action, Brown v. Wilson, et al., No. 85-5887, was brought by another state prisoner who had been found by a disciplinary board to be "under the influence of drugs or intoxicants" on five different occasions while confined as a state prisoner. These convictions were based solely on Syva EMIT test results. Among other things, plaintiff requested injunctive and declaratory orders restraining defendants from taking disciplinary action based solely upon the Syva EMIT test. The District Court for the Western District of Kentucky, Chief Judge Allen presiding, issued the requested preliminary injunction adopting Judge Johnstone's holding in Case No. 85-5701.

On January 3, 1984, this case was consolidated with Kendrick v. Bland Civil Action No. 76-0079-P(J) consolidated with Thompson v. Bland, Civil Action No. 79-0092-O(J) "for the sole purpose of a hearing on the plaintiffs' constitutional challenge of defendants policy utilizing urinalysis testing to determine drug use within the institution." The magistrate conducted a hearing and recommended that a preliminary injunction be entered. The district court followed the magistrate's recommendation and entered an order granting the plaintiffs' motion for a preliminary injunction. On appeal to the Sixth Circuit, 793 F.2d 1291, the court vacated the injunction as being "improvidently granted" because of insufficient findings and due to the district court's failure to specify whether the injunction was issued under the consent decree entered in Kendrick v. Bland, 541 F.Supp. 21 (W.D.Ky.1981) or under due process. On remand, the magistrate held an additional hearing and subsequently recommended that the injunction be denied. The magistrate found that the issue of urinalysis did not fall within the consent decree; the utilization of urinalysis testing did not violate the inmates' due process rights; the use of the P & N sheet and disciplinary hearing without the actual test tape did not violate due process; and that lab technician was not the "accuser" so as to require him to be at the inmates' disciplinary hearings for cross examination. This court entered an order whereby it accepted the findings and recommendation of the magistrate. The defendants filed a motion to alter or amend regarding the issue of attorney's fees and both sides filed objections to the magistrate's report. On November 13, 1987, the court entered an order vacating the order of September 2, 1987 regarding the awarding of attorney's fees. The plaintiffs then filed a motion to alter or amend concerning the substantive issues regarding urinalysis testing and the issue of attorney's fees. The district court denied this motion, holding as follows:

First, the plaintiffs argue that the due process requirement of the Fourteenth Amendment is not the same as the due process requirements of the consent decree and that the court has failed to distinguish between the two. The plaintiffs have misconstrued the court's opinion. In its memorandum opinion entered November 13, 1987, the court held that the urinalysis results as transposed onto the P & N sheets was sufficient to satisfy the "some evidence" requirement under Superintendent, Mass. Corr. Institution Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). The court did not analyze this issue under the consent decree...

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  • Armstead v. State, 133
    • United States
    • Court of Appeals of Maryland
    • September 1, 1993
    ...... Maryland Declaration of Rights because "an individual [must] not suffer punitive action as a result of an inaccurate scientific procedure." Higgs v. Wilson, 616 F.Supp. 226, 230 (W.D.Ky.1985), vacated and remanded on other grounds, 793 F.2d 1291 (6th Cir.1986), aff'd in part, vacated in part, nd remanded in part on other grounds sub nom Higgs v. Bland, 888 F.2d 443 (6th Cir.1989). Third, Armstead argued that the statute denied him his right to confrontation under both the federal and state ......
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    ......438, 298 S.E.2d 482 (1983) (the EMIT test is sufficiently reliable to stand as the only evidence in a parole revocation hearing). But see, Higgs v. Wilson, 616 F.Supp. 226 (W.D.Ky.1985); and Kane v. Fair, 33 Cr.L. 2492 (Mass.Super 1983). We hold that the EMIT test, as used at Iowa State ... See also Higgs v. Bland, 888 F.2d 443 (6th Cir. 1989). .         In seeking a writ of habeas corpus, the petitioner asserts that several of his due process rights ......
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    • February 20, 1992
    ...... Similarly, in Higgs v. Bland, 888 F.2d 443, 451 (6th Cir.1989), the court of appeals affirmed the denial of an award of fees where the plaintiffs' only success had been ......
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    • July 7, 1992
    ...... Similarly, in Higgs v. Bland, 888 F.2d 443, 451 (6th Cir.1989), the court of appeals affirmed the denial of an award of fees where the plaintiffs' only success had been ......
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