Steele-Warrick

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

NADEZDA STEELE-WARRICK and

DARRYL SCHULTZ, individually and on

behalf of others similarly situated,

MEMORANDUM AND ORDER

Plaintiffs,

Case No. 1:19-CV-6558 (FB) (VMS)

-against-

MICROGENICS CORPORATION,

THERMO FISHER SCIENTIFIC, INC.,

ANTHONY ANNUCCI, JAMES

O’GORMAN, CHARLES KELLY,

RICHARD FINNEGAN, and COREY

BEDARD,

Defendants.

Appearances:

For the Plaintiffs: For Defendants Annucci and O’Gorman:

MATTHEW D. BRINKERHOFF LINDA FANG

Emery Celli Brinkerhoff Abady Ward & NYS Office of The Attorney General

Maazel LLP 28 Liberty Street

600 Fifth Avenue, 10th Floor New York, NY 10005

New York, New York

For Defendant Kelly:

KAREN L. MURTAGH JEFFREY PETER MANS

Prisoners’ Legal Services of New York Law Office of Jeffrey P. Mans

41 State Street, Suite M112 P.O. Box 11-282

Albany, New York 12207 Albany, NY 12211

For Defendant Finnegan:

BENJAMIN W. HILL

Capezza Hill, LLP

30 South Pearl Street

Ste. P-110

Albany, NY 12207

For Defendant Bedard:

LAUREN NICOLE MODACQ

Conway, Donovan & Manley, PLLC

50 State Street

Ste 2nd Floor

Albany, NY 12207

BLOCK, Senior District Judge:

In this putative class action under 24 U.S.C. § 1983, Nadezda Steele-Warrick and Darryl

Schultz (collectively, “Plaintiffs”) claim that they and thousands of others under the jurisdiction

of the New York State Department of Corrections and Community Supervision (“DOCCS”) were

subject to discipline based on false-positive results of faulty drug tests developed by Microgenics

Corporation and Thermo Fisher Scientific, Inc. (collectively, “Microgenics Defendants”). In

addition to the Microgenics Defendants, Plaintiffs assert claims against five DOCCS employees

(collectively “DOCCS Defendants”) under the Substantive Due Process Clause of the Fourteenth

Amendment, alleging that they failed to take corrective action after becoming aware that the tests

were unreliable. Pending before the Court are the DOCCS Defendants’ motions for summary

judgment.

Procedural History

The Third Amended Complaint (“TAC”) alleged the Microgenics Defendants’ violation

of New York General Business Law § 349, various § 1983 claims, and negligence. The

Microgenics Defendants moved under Fed. R. Civ. P. 12(b)(6) to dismiss all the claims against

them and under 12(f) to strike the Plaintiff’s class allegations. See Dkts. 186, 187. The Court

denied the motions except as they related to Plaintiffs’ Eighth Amendment claims, which were

dismissed with prejudice. See June 13, 2023 Memorandum and Order, Dkt. 225. The

Microgenics Defendants filed a motion for reconsideration which the Court denied. See Dkt. 246,

256.

Originally there were eight individual DOCCS Defendants, including the five remaining

DOCCS Defendants. Collectively, they moved to dismiss all claims against them. See Dkts. 144,

148, 159–163. On April 26, 2023, the Court issued an Opinion holding that Plaintiffs failed to

state a claim under the Eighth Amendment, but that their Substantive Due Process claims

survived as to five of the DOCCS Defendants: Annucci, O’Gorman, Kelly, Finnegan and Bedard.

Steele-Warrick v. Microgenics Corp. 671 F.Supp. 3d 229 (E.D.N.Y. 2023). The Court concluded

that Plaintiffs had plausibly pled violations of the Fourteenth Amendment’s guarantee of

substantive due process; specifically, that they had been subjected to a drug testing regime so

arbitrary “that it was no better than imposing random discipline. . . . [violating] their right to be

free from such an obviously arbitrary system.” Id. at 241 (citing Hurd v. Fredenburgh, 984 F.3d

1075, 1088 (2d Cir. 2021).

The Court made the threshold determination that the TAC plausibly alleged that these

five DOCCS Defendants engaged in conscience-shocking conduct via deliberate indifference,

specifically noting the case’s parallels with Hurd, where the Second Circuit observed that “prison

officials can be found ‘deliberately indifferent to their own clerical errors on the basis of their

refusals to investigate well-founded complaints regarding these errors.’” Id. at 242 (quoting

Hurd, 984 F.3d at 1084–85). The Court then proceeded to analyze each of the DOCCS

Defendants’ individual actions as laid out in the TAC, ultimately concluding that Plaintiffs

plausibly pled substantive due process claims against each of them.

In their motions to dismiss, four of the five DOCCS Defendants—Annucci, O’Gorman,

Kelly, and Finnegan—argued that they were entitled to qualified immunity, but the Court

disagreed. Id. at 248. They appealed the denial, as was their right. Dkts. 194, 201, 202; see X-

Men Sec., Inc. v. Pataki, 196 F.3d 56, 65 (2d Cir. 1999) (recognizing that denial of a motion to

dismiss on the basis of qualified immunity satisfies the collateral order doctrine). However, the

circuit court remanded to permit the completion of discovery, concluding that this “case involves

complex factual questions, apparently intertwined with the legal ones, that are best resolved on

summary judgment.” Steele-Warrick v. Finnegan, Nos. 23-743, 2024 U.S. App. LEXIS 13589, at

*3 (2d Cir. June 5, 2024). Once discovery was completed, and in the interest of judicial

economy, the Court ordered all five remaining DOCCS Defendants to limit their initial motions

for summary judgment to the issue of qualified immunity. See Dkt. 308.

The five DOCCS defendants’ motions for summary judgment are now before the Court.

All five now argue that they are entitled to qualified immunity because they did not violate

Plaintiffs’ substantive due process rights, and if they did, those rights were not well established

as to the conduct in question. For the following reasons, the DOCCS Defendants’ motions are

DENIED.

Background

In its previous Order, the Court recounted the facts alleged in the TAC. See ECF 193.

They remain unchanged, but the court summarizes details pertinent to the DOCCS Defendants’

summary judgment motions.

DOCCS conducts urinalysis drug testing on incarcerated individuals in the state prison

system. Annucci and O’Gorman 56.1 Responses (“AOG 56.1”) ¶ 1, Dkt. 315-2. DOCCS’s drug

testing procedures are set forth in Directive 4937. AOG 56.1 ¶ 7. From 1987 until 2018,

Directive 4937 directed prison officials to conduct drug testing using EMIT (an acronym for

“enzyme multiple immunoassay technique”) technology, specifically requiring that inmates’

urine samples be tested twice, and produce two positive results, before misbehavior proceedings

could be initiated. Id. at ¶¶ 4–11. In 1987, this testing protocol was analyzed by the Southern

District of New York, which held that two repeated immunoassay screening tests without

laboratory confirmation through mass spectrometry was “sufficiently reliable so that the use of

the results as evidence, even as the only evidence, in a disciplinary hearing does not offend due

process.” Peranzo v. Coughlin, 675 F. Supp. 102, 105 (S.D.N.Y. 1987), aff’d per curiam, 850

F.2d 125, 126 (2d Cir. 1988).

After using Siemens’s EMIT testing system for decades, DOCCS decided in or around

2016 to find a different vendor. AOG 56.1 ¶ 25. DOCCS Defendant Lieutenant Corey Bedard

was in charge of the DOCCS drug testing program for inmates from 2011 until 2019 and was

tasked with looking for a new testing provider. Id. Brenda Collum was Bedard’s primary contact

at Siemens. In 2015, Collum left Siemens to become a sales representative at Thermo Fisher

Scientific Inc. (“TFSI”) and shortly thereafter contacted Bedard to advertise TFSI’s drug testing

products. Id. at ¶ 28. TFSI produces the Microgenics Indiko Plus immunoassays, which while

similar to the Siemens EMIT system, rely on a different assay technology called CEDIA. Pl’s

56.1 Counterstatement (“Pl’s 56.1”) ¶ 79. Collum repeatedly assured Bedard that EMIT and

CEDIA were similar or equivalent. Annucci Exs. T, V, Dkt. 316-21, 316-23.

When Bedard began looking to replace Siemens in 2016, he primarily focused on

Microgenics. Annucci Ex. S, Dkt. 316-20. To this end, he organized a side-by-side comparison of

Siemens’s testing system with TFSI’s Microgenics system. AOG 56.1 ¶ 29. Bedard offered

another company the chance to participate in this side-by-side test, but they declined. Bedard

Dep. Tr. 109:15–110:11, Dkt. 320-3. The comparison was conducted in 2017 and 2018 and the

results of 400 tested samples indicated that the Microgenics immunoassays were generally as

reliable as Siemens’s.1 The only issue raised by the comparison testing was that the Microgenics

1 There is some dispute as to how many times the Microgenics’ tests differed from Siemens’s, but the difference

between the disputed numbers are small enough to suggest that the results of the comparison testing would

reasonably support the conclusion that the two systems were comparable. AOG 56.1 ¶ 33, Pl.’s response.

Bupropion assay produced more false positives than Siemens’s. Id. at 114:19–25. In the

comparison testing, they used an assay called “Bup I,” but Collum and other TFSI employees

assured Bedard that TFSI’s new “Bup II” assay would be more accurate and more sensitive than

the assay they used in the comparison testing, specifically claiming that with Bup II “erroneous

results will not be an issue.” Annucci Ex. X, DOCCS 0110740, Dkt. 316-25. No one at DOCCS

conducted follow-up testing on the Bup II assay to confirm TFSI’s claims, but Bedard

nevertheless recommended to his superiors that Bup II be used in DOCCS’s facilities. Bedard

56.1 ¶ 55.

After completing this internal test, DOCCS initiated the procurement process and put out

a formal request for information (“ROI”) seeking information about drug testing systems from

companies interested in bidding for the contract. Microgenics responded with informational

materials claiming that their tests had accuracy rates of 96%+. AOG 56.1 ¶¶ 35–38. DOCCS

subsequently issued an Invitation for Bid, and after a bidding process, awarded the contract to

Microgenics. Id. at ¶¶ 42–52. Pursuant to the contract, Microgenics began providing DOCCS

with benchtop urinalysis machines and CEDIA test assays for two types of synthetic

cannabinoids and Buprenorphine, as well as non-CEDIA assays for THC and opiates. Pl’s 56.1 ¶

60.

Because Directive 4937 only addressed the use of EMIT testing, Bedard was tasked with

updating the language to include CEDIA testing protocols. Annucci Ex. ZZZ, Bedard Dep. Tr.

209:9– 211:2, Dkt 318-26. Bedard worked closely with Collum to make these changes because

“[s]he was the representative from the company . . . [a]ll the specifications and the scientific

principles from the machine came from her.” Pl’s Ex. 3, Bedard Dep. Tr. 109:15– 110:11, Dkt.

320-3.

The updated Directive 4937 was identical to the previous version, except for added

mentions of CEDIA and a handful of scientific references attesting to CEDIA’s reliability. Not

included in the updated Directive were the multiple examples of scientific research that Collum

had provided to Bedard indicating that CEDIA had higher rates of false positives than EMIT. See

Bedard Dep. Tr. 177:20– 178:12 (“The current on-market Buprenorphine assay has a high false

positive rate. . . . CEDIA Buprenorphine has a false positive rate of 39 percent.”). Also not

included was any mention of the Microgenics Bup II assay’s informational insert which states

that the results are only “preliminary” and that a “more specific chemical method,” such as gas

or liquid chromatography coupled with mass spectrometry (some form of reliable “confirmatory

testing”), “must be used to obtain a confirmed analytical result.” Pl’s Ex. 15, Bup II Insert, Dkt.

320-15 (bolded and italicized in original). Despite these issues, the updated Directive 4937 went

into effect and all DOCCS prisons began using Microgenics testing systems in January 2019.

Within the first month, complaints about the new tests began to flood into DOCCS almost

immediately, including many complaints from individuals who had never before tested positive

for drugs. Pl’s Ex. 20, IG Report at 13, Dkt 320-20. (“Multiple DOCCS employees testified . . .

that they had noticed an increase in complaints since the implementation of Microgenics’ drug

testing systems.”). The complaints were sent to Defendant Annucci, Acting Commissioner of

DOCCS, who then forwarded them to Defendant O’Gorman (Deputy Commissioner for Facility

Operations), Defendant Finnegan (Director of the Office of Special Housing), and Defendant

Kelly (Assistant Commissioner of Special Housing). Pl’s 56.1 ¶ 110. In addition to complaints

from incarcerated individuals, DOCCS received letters from elected officials communicating

concerns with the new tests. See Pl’s Ex. 30, Weprin Response, Dkt. 320-30.

After months of mounting complaints, Annucci claims that his office first noticed

“unusual complaints about buprenorphine results” in late June 2019. Annucci and O’Gorman

Mem. (“AOG Mem.”) at 21, Dkt. 315-1. An investigation was then initiated which did not yield

“definitive information that validated the complaints” until August 12, 2019, when Kelly learned

of confirmatory testing results that showed of six samples that had tested positive with the Bup II

assay, only one was confirmed to contain buprenorphine. AOG 56.1 ¶ 89.

On August 19, 2019, Annucci suspended all discipline based on the Bup II assay, and

subsequently reversed and expunged all disciplinary determinations based on Microgenics’s

Buprenorphine assays Id. at ¶¶ 91, 102. In September 2019, DOCCS referred the issue of the

Buprenorphine tests to the New York State Inspector General’s (“IG’s”) office for review. Id. at ¶

104. The IG ultimately determined that Microgenics’s assays had an average false positive rate of

28%. Pl’s Ex. 40, IG Review of Confirmatory Testing at 2, Dkt. 320-40. By November, the IG

directed DOCCS to “stop imposing discipline based on any positive immunoassay results unless

such immunoassay results were confirmed by independent laboratory confirmation,” drastically

expanding the scope beyond DOCCS’s initial exclusive focus on buprenorphine testing. AOG

56.1 ¶ 106 (emphasis added). After further investigation, the IG directed DOCCS to consider

reversing and expunging all Microgenics immunoassay-based discipline. Id. at ¶ 110. In January

2020, after a year of faulty testing, Annucci and DOCCS executive staff decided to expunge and

reverse the discipline resulting from Microgenics drug tests and to stop using all Microgenics

drug testing equipment. Id. at ¶ 111.

Summary Judgement

A court should grant summary judgment when there are no genuine issues of material

fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (A

dispute as to a material fact is genuine “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.”). The movant bears the burden of showing that it is entitled

to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.

Ed. 2d 265 (1986). At this stage of the litigation, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255

(1986) (internal citation omitted).

Qualified Immunity

Federal and state employees are presumptively entitled to qualified immunity from suit

unless the plaintiff can show “(1) that the official violated a statutory or constitutional right, and

(2) that the right was clearly established at the time of the challenged conduct.” Sabir v. Williams,

52 F.4th 51, 58 (2d Cir. 2022); see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Even if the

right was clearly established, however, the official is entitled to qualified immunity if “it was

objectively reasonable for the officer to believe the conduct at issue was lawful.” Gonzalez v.

City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (internal quotation marks omitted); see

Anderson v. Creighton, 483 U.S. 635, 639 (1987). “At the summary judgment stage, a claim may

be dismissed on qualified immunity grounds only when a court finds that an official has met his

or her burden of demonstrating that no rational jury could find these two prongs to be satisfied.”

Liverpool v. Davis, 442 F. Supp. 3d 714, 733 (S.D.N.Y. 2020) (citing Coollick v. Hughes, 699

F.3d 211, 219 (2d Cir. 2012)).

The Court previously considered the qualified immunity arguments of four of the five

DOCCS Defendants—Annucci, O’Gorman, Kelly, and Finnegan—in their motions to dismiss.

As these arguments remain largely the same, the Court will address these four Defendants’

motions before turning to a more fulsome examination of Bedard’s.

In deciding the motion to dismiss, the Court concluded as a matter of law that the rights

in question were clearly established. Steele-Warrick, 671 F.Supp.3d at 247 (“[W]ell before 2019

the caselaw clearly foreshadowed to any reasonable officer that constitutional liability would

attach if the growing number of complaints about the Indiko Plus tests were not promptly

investigated and corrected.”) (cleaned up). Therefore, the only relevant issue before the Court is

whether any facts newly revealed by discovery alter the Court’s previous analysis of these four

Defendants’ individual liability. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)

(liability under § 1983 depends on each defendant’s personal involvement in the constitutional

violation). The Court will now examine the fully developed record as it relates to Annucci,

O’Gorman, Kelly, and Finnegan to determine whether a reasonable jury could conclude that

these Defendants engaged in conscience shocking conduct in violation of Plaintiffs’

constitutional rights. As the Second Circuit has held, this standard may be satisfied where prison

officials are “deliberately indifferent” to their own errors and refuse to investigate well-founded

complaints regarding those errors. See Hurd, 984 F.3d at 1084–85; Francis v. Fiacco, 942 F.3d

126, 151 (2d Cir. 2019).

Annucci and O’Gorman

Annucci and O’Gorman submitted a joint brief to the Court and therefore will be

considered together. They argue that their conduct was not conscience shocking, claiming that

“unusual complaints about buprenorphine results began to surface in late June 2019,” that

investigations were quickly organized, and that “definitive information that validated the

complaints [did not come to light] until August 12, 2019.” AOG Mem. 21–22. Annucci

subsequently halted discipline on August 19 and began reversing and expunging all

buprenorphine disciplines on or around September 12. Id. at 22. Taken together, they argue that

no jury could look at this timeline and find their conduct conscience-shocking.

This timeline, however, ignores the fact that the first complaints reached Annucci’s office

in January 2019, and that they were quickly flagged as unusual by prison officials. The Inspector

General’s report observed that multiple DOCCS employees testified “that they had noticed an

increase in complaints at their respective facilities since the implementation of Microgenics’ drug

testing systems.” IG Report at 13, n.22.

The record shows that these complaints made their way to Annucci and O’Gorman.

Plaintiffs point to multiple prisoners who wrote directly to Annucci and O’Gorman raising

questions about the tests’ accuracy, flagging potential cross-reactivity with prescribed drugs, and

imploring the Commissioner to do something about the new, and evidently faulty, drug testing

system. See e.g. Pl’s Exs. 20, 26, 29. The earliest of these letters came in January and they

continued throughout the Spring of 2019. Pl’s 56.1 ¶¶ 110–125. Annucci referred at least three

complaints to O’Gorman between April and May of 2019. Id. ¶ 110.

Word of the testing problems even breached the walls of the prison, gaining public

attention in April, when public officials began writing to Annucci’s office. This was more than

two months before Annucci says he heard “unusual complaints.” AOG Mem. 21. The first of

these letters came from New York Assemblyman David Weprin. See Pl’s Ex. 30, Weprin

Response. In it, Weprin elevated the complaints of a constituent whose incarcerated spouse had

tested positive for buprenorphine but who “had no history of drug use, did not smoke or drink

alcohol, had been participating in the work release program and was regularly drug tested since

the prior October as a condition of that program, with no prior issues, and had been preparing for

a Board of Parole Review.” Pl’s Mem. 19. In all, Annucci’s office received four letters from

elected officials and community organizations about the tests prior to July 2019. Pl’s 56.1 ¶ 137.

Annucci did not order any changes to address the issues raised in these letters. Id. at ¶ ¶ 131–135.

While Annucci and O’Gorman’s actions would likely not shock the conscience if their

timeline of “unusual complaints” was true, evidence supports a longer timeline of inmate,

correctional officer, and elected official complaints starting in January 2019. Therefore, the Court

cannot conclude that no jury could find their actions conscience-shocking.

Kelly

As Assistant Commissioner for Special Housing and Drug Testing, Kelly was the top

ranking DOCCS official specifically assigned to oversee the Microgenics tests, and as Annucci’s

executive assistant, he was in charge of investigating the growing number of complaints about

the tests.

Annucci directed Kelly to investigate the letter from Assemblyman Weprin and “prepare

a Response for My Signature” in April 2019. Pl’s 56.1 ¶ 130. In preparing that response, Kelly

discovered that the Bup II Assay may have produced a false-positive because of cross-reactivity

with Benadryl. Pl’s 56.1 ¶ 132. Despite learning of this potential cross-reactivity, and admitting it

to Assemblyman Weprin, Kelly took no further steps to investigate or address potential false

positives caused by unidentified cross-reactivity issues. Pl’s Ex. 30, Weprin Response.

Months later, in July 2019, Kelly decided to pause testing at Eastern but took no further

steps to pause testing in DOCCS’s fifty-one other facilities. Pl’s Ex. 69, IG Interview of

Venettozzi at 4, Dkt. 321-20. He also did not pause testing at the other facilities after learning

that the July confirmatory testing showed that five out of six samples returned false positives for

buprenorphine. IG Report, 27. More shockingly, he took no remedial steps to free the five

individuals vindicated by the confirmatory testing who were “still in confinement pending

sentencing on their disciplinary charges.” Id. He also told the IG that he “may have verbally

advised his superiors” about the confirmatory testing, but he did not forward them the actual test

results. Id. Taken together; these actions raise triable issues of fact as to whether his conduct

evinces conscience-shocking deliberate indifference.

Finnegan

Finnegan was Assistant Commissioner of the Office of Special Housing during the

entirety of this scandal. Annucci’s office forwarded the majority of the complaints about testing

issues to Finnegan, and as such he was on notice of potential problems with the Indiko Plus

systems at roughly the same time as Annucci and O’Gorman. In addition to the torrent of letters

from incarcerated individuals, Finnegan received word directly from DOCCS staff at Attica

Correctional Facility, who first noticed the increase in complaints in February and March 2019

and who went “immediately” to Finnegan’s office. Pl’s 56.1 ¶ 144. Plaintiffs contend that

Director of Special Housing Donald Venettozzi twice told Finnegan to relay these complaints to

O’Gorman, and Finnegan twice refused because of his personal feud with Venettozzi. Venettozzi

Dep. Tr. 92:23– 93:13. Finnegan not only did not conduct any investigation, but the record

suggests he instructed Venettozzi to “stand down” and stop asking questions. Id. at 190:12–14.

Prioritizing personal feuds over the constitutional rights of incarcerated people raises more than

the specter of conscience-shocking conduct. Based on the foregoing, the Court has no doubt that

a reasonable jury could conclude Finnegan’s conduct shocks the conscience.

Having re-examined the evidence, the Court maintains its previous ruling. Annucci,

O’Gorman, Kelly, and Finnegan are not entitled to qualified immunity. A reasonable jury could

conclude that they violated Plaintiffs’ constitutional rights at a time when those rights were

clearly established. The Court will now examine Defendant Bedard’s request for qualified

immunity.

Bedard

Defendant Bedard is not alleged to have been directly involved in the lengthy process of

deciding when to stop using the faulty tests. Rather, Plaintiffs claim that Bedard violated their

rights via his involvement in the selection of Microgenics as the new testing provider. Bedard did

not claim qualified immunity in his 12(b)(6) motion, so the Court has not yet had a chance to

consider his arguments. As the nature of his alleged constitutional violation is different, the Court

must consider both whether he violated Plaintiff’s rights, and if the rights were well established

at the time as to his conduct.

Bedard argues, as he did in his motion to dismiss, that he did not violate the Plaintiffs’

rights. Bedard Mem. at 11, Dkt. 326-1. As the Court noted at the motion to dismiss stage, the

Complaint alleged that Bedard knew from experience that the norm was to use confirmatory tests

for parole urinalysis and that a trial Indiko Plus test had misidentified codeine as buprenorphine.

Steele-Warrick, 671 F.Supp. 3d at 245. Bedard now argues that he did not know about this norm

in parolee drug testing until long after his involvement in selecting Microgenics as the drug test

provider, a claim that appears to be borne out by his deposition testimony. Bedard Exh. A, 226–

229, Dkt. 326-4. As to the single faulty buprenorphine test, one false positive out of 400 is far

from enough to suggest a constitutional violation. To the contrary, if Microgenics’s

immunoassays had a .0025% error rate (i.e. 1/400) they would be far more reliable than the

EMIT tests endorsed by the Court in Peranzo. 608 F.Supp. 1504, 1510 (finding DOCCS’s EMIT

testing had accuracy rate above 95% and therefore complied with due process).

Unfortunately for Bedard, discovery has revealed evidence which raises new questions

about whether he engaged in conscience-shocking conduct. Among this evidence is the fact that,

while he was looking into alternative testing contractors, Collum provided DOCCS with

scientific literature that suggested CEDIA buprenorphine assays had a false positive rate of 39%.

Pl’s 56.1 ¶ 84. Bedard evidently disregarded this evidence and did nothing to bring it to the

awareness of his superiors. Bedard then allowed Collum—a salesperson interested exclusively in

selling a product to DOCCS—to edit Directive 4937 to suggest that CEDIA tests could be used

with the exact same procedure as DOCCS had been using with EMIT tests, i.e., without

confirmatory testing. See Bedard Dep. Tr. 177:20– 178:12. Bedard knew that the CEDIA Indiko

Plus instructions mandate confirmatory testing “be used to obtain a confirmed analytical result,”

Pl’s Ex. 15, Dkt 320-15, and yet co-wrote Directive 4937 with a company salesperson to directly

contradicted this mandate. This chain of intentional actions raises his conduct above the level of

“negligently inflicted harm beneath the threshold of constitutional due process.” Daniels v.

Williams, 474 U.S. at 327, 338 (1986). Accordingly, the Court cannot say that no reasonable jury

could not find that Bedard’s conduct shocks the conscience and as such, he fails to satisfy this

prong of the qualified immunity analysis.

As to the second prong, Bedard argues that Plaintiffs’ rights were not clearly established

as to his conduct. Any reasonable officer would know that the Constitution protects incarcerated

people from being subjected to arbitrary punishment based on unreliable drug tests. The issue is

therefore whether it was reasonable for Bedard to conclude that CEDIA tests were the functional

equivalent of EMIT tests, and accordingly, that the logic of Peranzo would continue to govern

DOCCS’s actions.

As described previously, the most important detail in analyzing the difference between

CEDIA and EMIT tests is the difference between the tests’ respective instructions. The Peranzo

court quoted Syva’s (Siemens’s predecessor and the maker of the EMIT test considered by that

court) instructional insert for their testing protocols: “Syva recommends confirmation of positive

results. Confirmation of positive results is important in certain environments. Repeating the test

or obtaining verbal corroboration from the individual may be adequate confirmation in some

situations. If greater accuracy is required, Syva recommends that results be confirmed by an

alternative scientific method.” 608 F. Supp. at 1514 n.16 (emphasis added). In analyzing this

language, the Court observed that “[t]he inclusion of this recommendation, however, by no

means renders the unconfirmed use of the EMIT test an unreliable procedure to follow.” Id. at

1514. Indeed, a recommendation to do confirmatory testing is very different from a command to

do so. Unfortunately, a command to conduct confirmatory testing is exactly what one finds in

Microgenics’s Bup II instructional insert. As previously revealed, the insert for the

Buprenorphine CEDIA assay announces that “confirmatory testing must be used to obtain a

confirmed analytical result.” Pl’s Ex. 15.

Bedard points to Peranzo to show the reasonableness of his belief that his conduct was

lawful, but the difference between these two tests’ instructions is fatal to his claim of immunity.

“A right is ‘clearly established’ when the contours of the right are sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Reyes v. Fischer,

934 F.3d 97, 103 (2d Cir. 2019). Bedard is neither a lawyer nor a scientist, so the Court does not

expect him to have a detailed understanding of all of Peranzo’s nuances, nor of the specific

scientific mechanisms of CEDIA testing. However, one need be neither a scientist nor a lawyer

to read instructions. Accordingly, the Court is confident that a reasonable official should have

asked “What do the test’s instructions say must be done to achieve a reliable result?” and “Are

those instructions different than the test we used previously?” As a jury could find Bedard’s

failure to follow the CEDIA testing instructions an unreasonable violation of the law that was

clearly established in Peranzo, Bedard fails to bear his burden on this prong of the qualified

immunity analysis, and he is therefore not entitled to qualified immunity.

Conclusion

For the foregoing reasons, the DOCCS Defendants’ motions for summary judgment are

DENIED. The five DOCCS Defendants are not entitled to qualified immunity because a

reasonable jury could conclude that they violated Plaintiffs’ well-established rights via their

involvement in the rollout of the Indiko Plus testing system in 2019.

The question of whether these five officers are entitled to qualified immunity must be

reserved until after trial. See, e.g., Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (explaining

that after receiving the jury’s decision as to “what the facts were,” the court then may “make the

ultimate legal determination of whether qualified immunity attaches on those facts.”). At trial the

jury will be given targeted special interrogatories to help the Court determine if the DOCCS

Defendants engaged in conscience-shocking conduct. See Warren v. Dwyer, 906 F.2d 70, 76 (2d

Cir. 1990) (“If there are unresolved factual issues which prevent an early disposition of the

[qualified immunity] defense, the jury should decide these issues on special interrogatories.”).

SO ORDERED.

_/S/ Frederic Block___________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

February 6, 2025