Soto v. Lord , 693 F. Supp. 8 ( 1988 )

693 F. Supp. 8 (1988)

Raul SOTO, Plaintiff,
v.
Gordon LORD, Program Coordinator of Downstate Correctional Facility, Defendant.

No. 86 Civ. 1916 (KC).

United States District Court, S.D. New York.

August 9, 1988.

Daniel H. Weiner, Hughes, Hubbard & Reed, New York City, for plaintiff.

Charles C. Davis, Jr., Dept. of Law, New York City, for defendant.

OPINION AND ORDER

CONBOY, District Judge:

The plaintiff in this action, brought pursuant to 42 U.S.C. section 1983,^[1] 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 the court sitting without a jury on June 16, 1988. This Opinion and Order incorporates the 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.^[2] While at Downstate, the plaintiff was visited by his wife and daughter "[a]t 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.^[3] 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 "[J]ustice [C]ertificate, 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,^[4] 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."^[5] Tr. 20.

On February 26, 1985, the defendant commenced the Tier III hearing.^[6] 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^[7] 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,^[8] commissary privileges,^[9] and package privileges.^[10]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.^[11] 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.^[12] 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.^[13] 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 for Urinalysis) to the Tier III Disciplinary Office.

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 adjudged 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 Disposition Rendered").

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. The 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 "[d]ue 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 [him]self 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, 106 S. Ct. 662, 679, 88 L. Ed. 2d 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, 102 S. Ct. 1148, 1153, 71 L. Ed. 2d 265 (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).^[14]

To comport with "the minimum requirements of procedural due process," Superintendent, Mass. Correctional Inst. at Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356 (1985) (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2976, 41 L. Ed. 2d 935 (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, 105 S. Ct. at 2773-75. "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, 105 S. Ct. at 2774.^[15]

The court recognizes that New York State could satisfy procedural due process by providing "a meaningful postdeprivation remedy, such as a tort suit." Davidson v. Cannon, 474 U.S. 344, 358, 106 S. Ct. 668, 675, 88 L. Ed. 2d 677 (1986) (Blackmun, J., dissenting); see Parratt v. Taylor, 451 U.S. 527, 543-44, 101 S. Ct. 1908, 1917, 68 L. Ed. 2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). Where a tort suit is precluded by state law, a section 1983 claim lies. See Daniels, 474 U.S. at 339, 106 S. Ct. at 679 (Stevens, J., concurring in judgment); Davidson, 474 U.S. at 358-59, 106 S. Ct. at 676 (Blackmun, J., dissenting); Hudson v. Palmer, 468 U.S. 517, 533-36, 104 S. Ct. 3194, 3203-05, 82 L. Ed. 2d 393 (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, the 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).^[16] 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, 106 S. Ct. at 676 (Blackmun, J., dissenting); Hudson, 468 U.S. at 535-36, 104 S. Ct. at 3204-05; see also Arteaga, at 220-21, 527 N.E.2d 1194, 532 N.Y.S.2d 57 (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, 527 N.E.2d 1194, 532 N.Y.S.2d 57 (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, ___ U.S. ___, ___, 108 S. Ct. 2302, 2307, 101 L. Ed. 2d 123 (1988) (dictum) (citation omitted); see Martinez v. California, 444 U.S. 277, 284 & n. 8, 100 S. Ct. 553, 558 & n. 8, 62 L. Ed. 2d 481 (1980). In Cleavinger v. Saxner, 474 U.S. 193, 106 S. Ct. 496, 88 L. Ed. 2d 507 (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, 106 S. Ct. at 497.^[17] The 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, 106 S. Ct. at 503.

"[W]hether 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, ___ U.S. ___, ___, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987).

[T]he 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 ___, 107 S.Ct. at 3039 (citation omitted); see Giacalone v. Abrams, 850 F.2d 79, 85 (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^[18] 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^[19] 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, the 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^[20]

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.^[21] 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.^[22] 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.^[23]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, 94 S. Ct. at 2979-81 (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, 103 S. Ct. 864, 74 L. Ed. 2d 675 (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, 104 S. Ct. 3012, 3018, 82 L. Ed. 2d 139 (1984); Patterson v. Coughlin, 761 F.2d 886, 891 (2d Cir.1985), cert. denied, 474 U.S. 1100, 106 S. Ct. 879, 88 L. Ed. 2d 916 (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).

The 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.^[24] 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. The 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.^[25] 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, 98 S. Ct. 1042, 1047, 55 L. Ed. 2d 252 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 996, 47 L. Ed. 2d 128 (1976) & 42 U.S.C. § 1983), quoted in Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305-06, 106 S. Ct. 2587, 2542, 91 L. Ed. 2d 249 (1986). "Accordingly, when § 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 806, 106 S. Ct. at 2542. Thus, "damage awards under § 1983 should be governed by the principle of compensation." Carey, 435 U.S. at 257, 98 S. Ct. at 1049; see id. at 254-57, 98 S. Ct. at 1047-49; Stachura, 477 U.S. at 306-07, 106 S. Ct. at 2542-43.

"[C]ompensatory 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, 106 S. Ct. at 2543 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S. Ct. 2997, 3012, 41 L. Ed. 2d 789 (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, 98 S. Ct. at 1050-53 & 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, 98 S. Ct. at 1051-52. 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, 98 S. Ct. at 1052. 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, 98 S. Ct. at 1047-49; id. at 266-67, 98 S. Ct. at 1053-54; Powell v. Ward, 643 F.2d 924, 934 (2d Cir.) (per curiam), cert. denied, 454 U.S. 832, 102 S. Ct. 131, 70 L. Ed. 2d 111 (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, 97 S. Ct. 568, 575-76, 50 L. Ed. 2d 471 (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, 98 S. Ct. at 1050; 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, 106 S. Ct. 78, 88 L. Ed. 2d 64 (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, 98 S. Ct. at 1054; 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, 107 S. Ct. 572, 93 L. Ed. 2d 576 (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, 98 S. Ct. at 1052 ("mental and emotional distress caused by the denial of due process itself is compensable under § 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, 98 S. Ct. at 1051).

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.... [T]his threshold applies even when the underlying standard of liability for compensatory damages is one of recklessness." Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632 (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, 405 U.S. 978, 92 S. Ct. 719, 1190, 30 L. Ed. 2d 740, 31 L. Ed. 2d 254 (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 Sostre, 312 F.Supp. at 885. The Second Circuit stated in dictum that the amount awarded, $25.00 per day, "is not unreasonable." 442 F.2d at 205 n. 52.^[26] Other courts have elected to follow the approach of Sostre. See, e.g., Adams v. Wolff, 624 F. Supp. 1036, 1040-41 (D.Nev. 1985) ($40.00 per 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. The 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, the court determines that the plaintiff shall be awarded fifty ($50) dollars per day of punitive confinement, for a total of three thousand dollars.^[27]

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 the court, the court 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 × $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. The 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, 98 S. Ct. at 1051-52, 1053-54; Maldonado Santiago v. Velazquez Garcia, 821 F.2d 822, 829 (1st Cir.1987).

As for distress flowing from the plaintiff's transfer, the 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,^[28] provide sufficient evidence that the court may infer mental anguish.^[29]

Nevertheless, the 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.

The court has considered the factors contained in section 435 B of the Restatement (Second) of Torts (1965).^[30] 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, 98 S. Ct. at 1051-52 (plaintiff must prove actual distress flowing from procedural due process violation, whereas defamation distress damages are presumed), or assault. See Restatement (Second) of Torts § 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, 103 S. Ct. at 1637, or "actual intent to injure or evil motive." Id. at 48, 103 S. Ct. at 1636.

In his complaint, the plaintiff also sought mandatory injunctive relief, requesting that the court expunge this adjudication of guilt from his prison record. It is the court's understanding that "[a]n 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, 102 S. Ct. 131, 70 L. Ed. 2d 111 (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 the Court, providing five days' notice to the defendant.

In addition, plaintiff's counsel should submit their application for an award of attorneys' 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. The 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

APPENDIX B

NOTES

[1] The plaintiff filed his complaint pro se. At a later time, the firm of Hughes, Hubbard & Reed undertook the plaintiff's representation pro bono publico. The court expresses its appreciation to that firm and particularly to Daniel H. Weiner, Esq., who acted as attorney of record and trial counsel.

[2] The plaintiff testified that his wife and daughter had visited him while he was incarcerated at Auburn Correctional Facility. This occurred prior to plaintiff's move to Downstate. Plaintiff testified that as a result of the long bus trip they made, his daughter fell asleep in the visiting room and did not wake up until ten minutes before the visit ended. Plaintiff also stated that his wife was "half exhausted" from the trip. See Trial Transcript at 39 [hereinafter "Tr. x."]. This testimony appeared to be spontaneous and sincere. Because of this incident, the plaintiff told his wife not to make the long trip again.

[3] The plaintiff testified that he did not recall the reason for this confinement. Tr. 40. He testified that he believed it had occurred in 1982. See id. The court takes judicial notice that the incident in question occurred in 1981, and was not connected to drug use. In fact, it appears that the plaintiff was disciplined for participating in a disturbance between another prisoner and a Corrections Officer. See Pino v. Dalsheim, 605 F. Supp. 1305, 1310 (S.D.N.Y. 1984). From the statement of the inmate who was at the center of the disturbance, it is plausible that the plaintiff intervened to keep the peace. See id. ("Pino explained [to an official involved in the disciplinary proceeding] that his argument with Officer Bowman was personal and at no time did he attempt to involve others.").

The plaintiff testified that he was never disciplined for drug use, except for the incident that forms the basis for this action. See Tr. 39.

[4] See discussion infra at 11-12 & nn. 8-10.

[5] The plaintiff explained that he had to stay in his cell, was unable to continue his educational programs, and could not receive telephone calls. Tr. 20; see Pino v. Dalsheim, 605 F. Supp. 1305, 1309 n. 2 (S.D.N.Y.1984).

[6] The proceedings were recorded, and a transcript was made. The transcript is in evidence as Joint Trial Exhibit 7 [hereinafter "Ex. x."]. A copy of the transcript is incorporated into this Opinion as Appendix B.

[7] The parties disagree as to whether the plaintiff was placed in "solitary confinement." Although the plaintiff indisputably was forced to remain in his cell for twenty-three hours each day, see Tr. 24, 29, other inmates were being held in cells on both sides. See id. at 33-34. Plaintiff could not communicate with these other prisoners during this period. See id. at 34. However, he was allowed to have visitors. Tr. 81.

[8] Prisoners are allowed to make two telephone calls a month to their families. See Tr. 25. A prisoner who loses the privilege is permitted to place a call in the event of an emergency. See id. at 81.

[9] Prisoners may make purchases from the prison commissary of items such as soap, tooth-paste, and cigarettes. See Tr. 25.

[10] A prisoner's family can send, or bring on personal visits, two packages a month, equal to thirty-five pounds of food. See Tr. 25.

[11] At one point, the plaintiff stated that he might have earned thirty-five cents per day, see Tr. at 35, but he said he received the starting salary. See id. Apparently, thirty cents per day is the pay given to prisoners who are unemployed or going to school. See Tr. at 36-37.

[12] The plaintiff made this determination based on his family's prior experiences. See supra note 2.

[13] A copy of the Continuity Form is incorporated into this Opinion as Appendix A.

[14] Counsel for the defendant objected to the plaintiff's characterization of his confinement as "solitary confinement." See Tr. 33-34. The point is moot in the constitutional sense. "A prisoner who may be confined to his quarters or elsewhere for at least fourteen days ... has a right to the [procedural protections of the due process clause]." McCann v. Coughlin, 698 F.2d 112, 121 (2d Cir.1983).

[15] In Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986), the Supreme Court concluded "that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels, 474 U.S. at 328, 106 S. Ct. at 663 (emphasis in original). The Court rejected the petitioner's argument that Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), held that a State is liable for negligence in failing to comply with procedural due process before depriving an inmate of good-time credit. The Court stated that "the relevant action of the prison officials in that situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him the procedural protections of the Due Process Clause." Daniels, 474 U.S. at 333-34, 106 S. Ct. at 666; see Franklin v. Aycock, 795 F.2d 1253, 1261-62 (6th Cir.1986). So, too, in this lawsuit liability, if it exists, is predicated on the defendant's intentional decision to mete out punishment against the plaintiff.

[16] The Court of Appeals split 4-3 on a point not relevant to this action. See Arteaga v. State, 72 N.Y. 212, 221, 527 N.E.2d 1194, 532 N.Y.S.2d 57 (1988) (Simons, J., dissenting) ("Although I agree that the hearing officers are entitled to absolute immunity for common law torts, I do not agree that the corrections officers who investigate inmate misbehavior and institute disciplinary proceeding [sic] by preparing and filing misconduct reports are similarly immune.").

[17] Cleavinger v. Saxner was an action brought against federal prison authorities, under the rule established in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). See Cleavinger, 474 U.S. at 198, 106 S. Ct. at 499. The rule of Cleavinger is applicable to this section 1983 action against state prison authorities, because the Supreme Court has refused "to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504, 98 S. Ct. 2894, 2909, 57 L. Ed. 2d 895 (1978); see id. at 496-504, 98 S. Ct. at 2905-09; see also McCabe v. Arave, 626 F. Supp. 1199, 1207 (D.Idaho 1986) (applying Cleavinger to section 1983 action), aff'd in part, rev'd in part on other grounds, vacated in part on other grounds, 827 F.2d 634 (9th Cir.1987).

[18] It is important to specify what is meant by "unconfirmed." In this case, at the time of plaintiff's disciplinary hearing, Directive 4937 mandated that two tests, using the same testing method, be conducted only when the testing was conducted in the facility's own laboratory. Compare Ex. 1 at D(5)(a)(4) with id. at D(5)(b)(2)-(3). In his opening statement, counsel for the defendant explained the reasoning behind this policy:

You have inexperienced or only slightly trained Corrections personnel conducting this highly technical scientific test; thus requiring two administrations of that test. And you have a reasonable basis for expecting that a professional laboratory would have legitimate personnel working on the procedures and you might expect to have confidence in a positive finding from their analysis.

Tr. 10.

This case, involving a single EMIT test, is distinguishable from those upholding use of EMIT tests that are "unconfirmed" in the sense that they are not subjected to an alternative confirming method, such as gas chromatography-mass spectrometry. See Peranzo v. Coughlin, 608 F. Supp. 1504, 1512-15 & n. 16 (S.D.N.Y. 1985) (preliminary injunction); Peranzo v. Coughlin, 675 F. Supp. 102, 103-05 (S.D.N.Y. 1987) (summary judgment), aff'd per curiam, 850 F.2d 125 (2d Cir.1988). In Peranzo, the court held that double EMIT testing was sufficiently reliable that the use of test results as evidence in disciplinary proceedings does not offend due process. See Peranzo, 675 F.Supp. at 105; accord, Lahey v. Kelly, 71 N.Y.2d 135, 142-43, 518 N.E.2d 924, 927-28, 524 N.Y.S.2d 30, 33-34 (1987) (distinguishing cases holding that single unconfirmed test are not sufficiently reliable to satisfy due process).

[19] Plaintiff cites Jones v. McKenzie, 628 F. Supp. 1500, 1505-07 (D.D.C.1986), rev'd on other grounds, vacated on other grounds, 833 F.2d 335 (D.C. Cir.1987); Higgs v. Wilson, 616 F. Supp. 226, 230-33 (W.D.Ky.1985), vacated mem. sub nom. Higgs v. Bland, 793 F.2d 1291 (6th Cir. 1986); Kane v. Fair, 33 Crim.L.Rep. (BNA) 2492, 2492 (Mass.Super.Ct. Aug. 5, 1983); Johnson v. Walton, No. 561-84 Rm (Vt.Super.Ct. Feb. 14, 1985). See Plaintiff's Revised Trial Memorandum at 8.

[20] The chain of custody requirement, commonly found in contraband cases and litigation in which scientific analysis is relevant, mandates a continuous, physical nexus between the source of the substance in issue, the testing or analytical process to which the substance is subjected, and the proponent of the substance as real evidence.

[21] The following colloquy occurred:

THE COURT: Had you conducted disciplinary hearings of a similar nature prior to Mr. Soto's, that is a case where an inmate had been on a furlough and that on return his urine had been tested positive for some controlled substance?

THE WITNESS: I don't believe so.

THE COURT: You never had a hearing of this type before Mr. Soto?

THE WITNESS: Not at Downstate, not in this period of time.

THE COURT: Did you ever have a hearing of this particular character at any time?

THE WITNESS: I don't believe so.

Tr. 63.

[22] The defendant testified that he knows who Bob Lewis is. Tr. 98. He did not testify that he knew Bob Lewis at the time of the plaintiff's hearing. See id.

[23] The defendant testified that he did not know, at the time he testified at trial, whether the plaintiff's specimen had been tested in Downstate's laboratory in 1985. See Tr. 58.

[24] The defendant's explanation for his acceptance of this assertion was that the assertion on the Continuity Form "was correct for that employee and for that specimen for that period of time." Tr. 89. "[T]hat employee" is not identified. Based on Exhibit 2, the defendant's reference must have been to Officer Knapp.

This explanation is not tenable. Immediately beneath the chain of custody inquiry, the Continuity Form asks whether the "[t]est [was] conducted in facility hospital, clinic or other appropriate area." Ex. 6. ("Was conducted," rather than "will be conducted," is the only correct interpretation; otherwise, the item would not be part of a check list.) The two "Yes" responses to these inquiries were made by the same person. If Officer Knapp wrote "Yes," that the chain of custody was "complete" through the time the specimen was placed in the refrigerator, he could not have written "Yes" to whether the test had been conducted, because it had not yet been conducted. It is not plausible that the same person would have answered these two inquiries at different times. That would defeat the very purpose of a check list.

[25] The court does not conclude or imply that the defendant acted maliciously. Rather, in light of the fact that the defendant had never conducted such a hearing before, and was not knowledgeable about the requirement of a proper foundation for the reception of evidence, the defendant acted only to intentionally ignore what he perceived as irregularities, so that the hearing could proceed without disruption.

[26] The statement is dictum because the defendant against whom a money judgment could be assessed had died, and no application to substitute a party who could be held responsible had been made to the district court. See Sostre, 442 F.2d at 205.

[27] For the sake of clarity, this figure includes wages the plaintiff lost during the sixty-day period of confinement. The figure does not take into account any distress caused by the wrongful confinement. That issue is addressed infra in the text, at section C.

[28] The letters, exhibits to the plaintiff's pro se complaint, were properly before the court for consideration. A pleading "is deemed to include any document attached to it as an exhibit." Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir.1985); see Fed.R.Civ.P. 10(c). The defendants (the damage claims against the other defendants were later dismissed by the late Hon. Edward Weinfeld, see Soto v. Coughlin, 666 F. Supp. 634 (S.D.N.Y.1987)) answered the complaint by alleging that they "[d]en[ied] or lack[ed] knowledge sufficient to form an opinion as to the truth of each and every allegation contained in the complaint," Answer para. 1, except that they admitted they were employed by the New York State Department of Correctional Services. See id.

A party ... may not deny sufficient information or knowledge with impunity, but is subject to the requirements of honesty in pleading. An averment will be deemed admitted when the matter is obviously one as to which [the] defendant has knowledge or information.

David v. Crompton & Knowles Corp., 58 F.R.D. 444, 446 (E.D.Pa.1973) (citation omitted). Here, the defendants failed to undertake even a minimal examination of their files to determine whether the letters were authentic. All the letters indicate that copies were placed in the plaintiff's file. Under these circumstances, the existence and contents of the letters are deemed admitted by the defendants. See Greenbaum v. United States, 360 F. Supp. 784, 787-88 (E.D.Pa. 1973) (due to defendant's failure to examine its own files containing relevant information, defendant deemed to have admitted facts about which it had information).

[29] Intangible injuries can be inferred from the circumstances, or established by the testimony. See Seaton v. Sky Realty Co., 491 F.2d 634, 636 (7th Cir.1974); Nichelson v. Quaker Oats Co., 573 F. Supp. 1209, 1231 (W.D.Tenn.1983), rev'd on other grounds, 752 F.2d 1153 (6th Cir.), vacated, 472 U.S. 1004, 105 S. Ct. 2696, 86 L. Ed. 2d 713 (1985); see also Carey v. Piphus, 435 U.S. 247, 264 n. 20, 98 S. Ct. 1042, 1052 n. 20, 55 L. Ed. 2d 252 (1978) (genuine mental distress "may be evidenced by one's conduct").

[30] That section reads:

Where a person has intentionally invaded the legally protected interests of another, his intention to commit an invasion, the degree of his moral wrong in acting, and the seriousness of the harm which he intended are important factors in determining whether he is liable for resulting unintended harm.

Restatement (Second) of Torts § 435 B (1965).