Higgs v. Wilson, Civ. A. No. 83-0256-P

• Decision Date: 27 June 1985
• Docket Number: 76-0079-P and 79-0092-P.,Civ. A. No. 83-0256-P
• Citation: 616 F. Supp. 226
• Parties: James Carl HIGGS, et al., Plaintiffs, v. George WILSON, et al., Defendants. Jerald L. KENDRICK, et al., Plaintiffs, v. David H. BLAND, et al., Defendants. James M. THOMPSON, et al., Plaintiffs, v. David H. BLAND, et al., Defendants. United States of America, Amicus Curiae.
• Court: U.S. District Court — Western District of Kentucky

616 F. Supp. 226

James Carl HIGGS, et al., Plaintiffs, v. George WILSON, et al., Defendants.

Jerald L. KENDRICK, et al., Plaintiffs, v. David H. BLAND, et al., Defendants.

James M. THOMPSON, et al., Plaintiffs, v. David H. BLAND, et al., Defendants.

United States of America, Amicus Curiae.

Civ. A. Nos. 83-0256-P, 76-0079-P and 79-0092-P.

United States District Court, W.D. Kentucky, Paducah Division.

June 27, 1985.

James Carl Higgs, pro se.

Barbara W. Jones, Gen. Counsel, Linda G. Cooper, Dept. of Corrections, Frankfort, Ky., Hancy W. Jones, Asst. U.S. Atty., Louisville, Ky., Mitchell W. Dale, U.S. Dept. of Justice, Civ. Rights Div., Washington, D.C., for defendants.

MEMORANDUM OPINION

JOHNSTONE, District Judge.

Since approximately 1981 the Kentucky Department of Corrections has conducted a urinalysis procedure at the Kentucky State Reformatory and the Kentucky State Penitentiary in an attempt to curtail the use and dissemination of illicit drugs in those institutions. Urine specimens are periodically collected from certain inmates and tested for the presence of drugs with the Syva Emit drug detection system. If the EMIT test indicates that an inmate has drugs in his system, then that inmate is charged with a violation of Category IV, Item 2 of the Correction Department's Infraction and Penalty Code, "being under the influence of drugs or intoxicants," and is subject to a maximum punishment of 45 days in disciplinary segregation and a loss of 60 days good time credits. This action challenges the use of the EMIT test as the sole evidence of an individual's use of contraband drugs.

The action originated as a motion for contempt under the Consent Decree entered in Kendrick v. Bland, 541 F.Supp. 21 (1981). It was consolidated with an individual action filed by James Carl Higgs and other inmates at Kentucky State Penitentiary. Civ. Action No. 83-0265-P (J). All parties demanded a preliminary injunction to enjoin the use of the Syva Emit test to punish inmates for the use of drugs. They contend that that practice constitutes a violation of the constitutional guarantee against loss of liberty without due process of law.

The court referred the action to United States Magistrate W. David King for his report and recommendation. He conducted an evidentiary hearing on the motion for preliminary injunction on May 10, 1984, in Louisville, Kentucky. The hearing continued on May 16 and 17, 1984 at the Kentucky State Penitentiary in Eddyville, Kentucky. On July 30, 1984, the magistrate entered his report on the preliminary injunction. He recommended that the court issue a preliminary injunction providing that:

1. The Syva Emit drug detection system not be used as the sole indication of intoxication in a `Category 4, Item 2 Being under the influence of drugs, intoxicants' proceeding before the adjustment committee....

2. In any instance in which the results of the Syva Emit urine screen is used to support an incident report charging an inmate with being under the influence of drugs or intoxicants; the Department of Corrections shall: (a) implement reasonable procedures in the urine donor's presence to assure the integrity and preserve the freshness of the sample; (b) implement reasonable procedures to record the chain of custody for the urine sample from the time the sample is taken until it returns to the inmate's institution after examination; (c) allow the charged inmate to cross-examine the laboratory technician concerning the validity of the test results either in person or through written interrogatories.

The court remanded the matter to the magistrate on October 1, 1984, for more detailed findings. The second, supplemental report, entered on February 22, 1985, recommended that the same injunction be issued and included additional factual findings. This court, on May 2, 1985, accepted the magistrate's recommendation and granted plaintiff's motion for a preliminary injunction. It enjoined defendants from taking any disciplinary action against plaintiffs based solely upon unconfirmed results of Syva Emit drug detection tests, and stated that a formal finding of fact and conclusion of law would follow its order entering the preliminary injunction. These are those findings and conclusions as promised by the court.

FINDINGS OF FACT

The Test Itself

The urinalysis test employed by Corrections is called the enzyme multiplied immunoassay technique (EMIT). It works on a biochemical principle. An antibody which reacts to drugs by binding is added to the urine. The reactions which result produce a substance which can be compared to known values through a device called a photometer which indicates whether drugs are present in the urine. Different combinations of regents are used to produce the substance depending upon which drug is sought. The test measures a by-product of the reaction of the urine. Record of Evidentiary Hearing, May 10, 1984, at 49-52. Thus, the EMIT test does not measure the amount of drugs in the urine directly, but measures instead the reaction of an enzyme to the drug. Id. at 62.

Plaintiff's expert, Thomas A. Regent, Chief toxicologist for Erie County in Buffalo, New York, testified that the EMIT test, without use of a confirmation test, is not sufficiently reliable to be used to identify drugs if punitive action will result from their identification. Id. at 61. He gave several reasons for his opinion. Since the EMIT test does not measure the drug itself, positive tests should be confirmed with a second test to ascertain that urine does indeed contain the drug and that the enzyme reaction was not caused by some other element. Id. at 62. The confirmation test could be gas chromatography or mass spectrometry. Id. at 69. Moreover, various elements in high quantity may cause cross-reactions, the binding of an antibody to legal compounds with a structure similar to illegal compounds. Cross-reactions may create falsely positive results. Drugs such as aspirin, darvon, amitriptylene, methaqualone, and valium are drugs which could cause cross-reactions. Id. at 83.

The primary advantages of the EMIT test are that it is quick, it is relatively inexpensive, and it can be operated by people who are not scientific experts. It will also detect drugs in very low concentrations. Id. at 61, 163. Standing alone, without a confirmation test, it is sufficiently reliable for conducting a statistical survey of a population group to discover whether, for example, teenagers in Ohio smoke marijuana, because absolute accuracy is not necessary. However, "when one is dealing with one's employment, someone's health, someone's goodwill, mental state and so on, any punitive action which takes place, ... confirmation is necessary." Id.

The literature published by the Syva company which produces and markets the EMIT test recommends back-up test of positive tests. A March 1983 booklet published by the manufacturers of the test, entitled Frequently Asked Questions About Syva and Drug Abuse Testing provides, "it is good scientific practice to confirm a positive result from any test method in cases where a person's rights, privileges, treatment or employment is at stake." Plaintiffs' Exhibit 2 at 6. Defendant's own expert, Ernest Slightom, testified that he was aware of no changes in the scientific procedures for administering the test that would cause it to be more accurate than it was in March, 1983. Id. at 170. He also conceded that the September 16, 1983 issue of the Morbidity and Mortality Weekly Report states that "regardless of which assay kit is used, EMIT test results should be interpreted by qualified personnel and positive results should be verified so that there is a very limited possibility of false positive results." Id. at 173.

Slightom testified that the EMIT test is reliable without a back-up test. However, his disagreement with Rejent was one only of degree. He admitted that in March, 1984, he testified at another hearing that the EMIT test alone is not reliable, that any single test should be backed-up with a second test. Id. at 180. This inconsistency is explained by the fact that Slightom believes that a positive test should be confirmed if the individual tested is not incarcerated. However, confirmation is not necessary if the individual is in prison or on parole. Id. at 130-131.

The Procedure

At Kentucky State Reformatory, inmates who give urine samples are chosen in several ways. A totally random sample is prepared by, for example, choosing every fourth inmate on a list. Also, inmates suspected of drug use are often selected by unit managers or shift captains. Specific types of inmates are routinely tested: for example, inmates returning from furlough, inmates residing in a housing unit where drug use is suspected, and inmates who have submitted a positive test in the past. Id. at 218-19. Kentucky State Penitentiary uses a similar method to select inmates. It keeps a drug abuse list of individuals who are "high risk drug offenders" by their background or by their institutional use of drugs. Id. at 277. In addition, the senior captain may choose a random group of inmates to be tested. Id.

The procedure used to collect urine specimens from the chosen inmates is substantially the same at the two institutions. The inmates receive a specimen cup labeled with their name and number. They are observed while giving their specimens by a correctional officer. The sample is covered and sealed with evidence tape and the identification is checked, all in the inmates' presence. The appropriate chain-of-custody forms are then filled out and the sample is logged. At Kentucky State Reformatory the samples are placed in a locked metal container in the captain's office and immediately sent to Luther Luckett Correctional Complex where they are locked in a refrigerator for later testing. Id., at 220. At Kentucky State Penitentiary, the samples are stored in a styrofoam transport box inside of a refrigerator in the...