Lawsuit: NY inmates wrongfully penalized over false positive drug tests

A class action suit alleges inmates were placed in solitary confinement and lost privileges over inaccurate tests


Stephen Rex Brown and Chelsia Rose Marcius
New York Daily News

LONG ISLAND, N.Y. — Anthony Cortes was in school at New York’s Willard Correctional Facility’s drug treatment campus in early March when he got called for a routine drug test.

Cortes, 34, of West Babylon, L.I., a former heroin user whose addiction helped land him in the upstate prison, didn’t think anything of it. He had stayed clean during his stint in the program and only had about a month to go before heading home.

But on March 6, Cortes said, officials told him the test came back positive for Buprenorphine, a medication commonly prescribed to treat opioid addiction. He was booted from Willard’s program, transferred to Five Points Correctional Facility and thrown into solitary confinement. A second drug test in April came back with the same results and more time in isolation.

Yet by mid-September — following nearly 200 days in solitary and four and a half months after his scheduled release — officials realized they had made a grave error. The drug tests had been false positives, according to a new $5 million lawsuit expected to be filed Tuesday in Court of Claims that names New York State as a defendant.

The suit is part of a growing statewide scandal over an avalanche of false positives that have potentially impacted thousands of prisoners.

A class action lawsuit was filed last week in Brooklyn Federal against Microgenics, the company that provided the drug tests to the state’s corrections department and trained correction officers on how to use them. But for Cortes, the drug company isn’t the only entity at fault — he believes New York state must also take some share of the blame.

Department of Corrections and Community Supervision spokesperson Thomas Mailey said in a statement last week that the department has "suspended use of the test, and out of an abundance of caution, immediately reversed any actions taken as a result of these tests, and restored privileges to any potentially affected inmates” after learning about concerns regarding the accuracy of the Buprenorphine test.

Mailey said the matter has been referred to Inspector General’s office and the department’s Office of Special Investigations. A spokeswoman for the state’s corrections department said it cannot comment on pending litigation.

Cortes was first admitted to the Shock Incarceration Program at Willard in January after being convicted of burglary in Manhattan. The 90-day alternative to incarceration program was a chance for Cortes to get clean and also avoid a two-to-four-year prison sentence.

He said the first false positive on his March drug test took away that opportunity.

“I was completely devastated...I knew I was completely clean, and now I’m being taken to a maximum security prison," he said of his transfer to Five Points in upstate Romulus, N.Y., about 5 hours from the city. “I was going crazy in my mind.”

Cortes said he was initially handed a 45-day sentence in “keeplock,” a type of isolated housing where inmates are stripped of privileges like visits, phone calls and mail packages.

After completing the sentence, he was transferred back to Willard, about 10 minutes away, where officials conducted another drug test. That one also came back with a false positive for Buprenorphine.

Within 18 hours, Cortes was carted off again to Five Points — this time for a 60-day bid in keeplock.

“I almost lost my mind. I was really close to losing my sanity,” he said. “At this point...I can’t believe this is happening.”

Cortes said he didn’t realize other inmates were also testing positive for the drug until he talked to them through the walls of his pen during his allotted one hour of outdoor recreation. When officials tried to make him take another drug test, he refused. That landed him another six months of isolation.

Toward the end of September, word had spread that there might be a problem with the drug tests, Cortes said. By the end of the month he was told he could go home immediately.

“It really took a toll on my mind and my spirit. It broke me down,” he said of the ordeal. “I’m very happy to be home with my family...but the damage has been done.”

His lawyer, Andrew Plasse, said New York state was a defendant in the lawsuit because it was in charge of running Cortes’ drug program.

“At some point it must have been blatantly obvious that these tests were not accurate,” the attorney said.

McClatchy-Tribune News Service

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