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Class-­Action Lawsuit Challenges Use of Presumptive Drug Tests by Washington DOC

A suit filed in Washington state court on September 22, 2023, challenges disciplinary sanctions imposed on prisoners by the state Department of Corrections (DOC) based on presumptive drug test results.

DOC uses inexpensive colorimetric drug tests to examine incoming mail and other paper items, turning them a certain color if an illicit substance is detected. Results are often inaccurate, though, so kit manufacturers DetectaChem and MMC International caution they should be deemed “presumptive,” or merely indicative of the possible presence of drugs until the findings are verified by lab testing.

However, DOC uses a positive result to impose harsh disciplinary sanctions without confirmation tests. According to DOC policy 460.050, sanctions include placement in solitary confinement—called “administrative segregation” (ad-­seg)—as well as loss of good time and delayed release dates, removal from jobs or program assignments, and loss of visitation, recreation, phone, commissary, television, package and library privileges.

Columbia Legal Services (CLS) wrote DOC on August 29, 2023, challenging the use of these unreliable tests without confirmation testing. CLS cited a preliminary injunction granted by a Massachusetts state court on November 30, 2021, which prohibited that state’s DOC from imposing discipline based on presumptive drug test results; in that case, the court determined the NARK II tests produced by Sirchie and used in state prisons had a false positive rate of 38%, making their accuracy “only marginally better than a coin flip.” See: Green v. Mass. Dep’t of Corr., 2021 Mass. Super. LEXIS 521.

CLS invited Washington DOC officials to meet and discuss the problematic tests, noting that DetectaChem’s operating manual warns “there is no guarantee that positive results are ultimately defining” and that some colorimetric drug tests have returned false positives mistaking bird droppings, donut crumbs and cotton candy for illegal drugs. Test results are also subject to misinterpretation because color results for drug and non-­drug substances are easily confused.

DOC responded in early September 2023 by “discontinu[ing] the use of presumptive drug test results as a sole basis for disciplinary action.” It also promised to develop “a process to identify individuals who have lost good/earned time due to discipline based solely on presumptive drug test results, and to restore the good time to those individuals.” However, CLS called that “insufficient to protect the rights of those in custody,” adding it doesn’t “compensate those in custody (and those now released) who were punished because DOC used these unreliable tests.”

Prison officials also declined to engage in mediation. CLS then filed its suit, alleging that DOC officials “knew or should have known that these tests often return false positive results” before taking unwarranted disciplinary action against four named plaintiffs.

Clifton Bell was put in ad-­seg after paper found in his cell tested presumptively positive for synthetic cannabinoids (K2). His request for a confirmation lab test was denied, and he was sanctioned with loss of visitation, recreation, phone, written communication and commissary privileges, plus loss of 75 days good time. He also was placed in a more restrictive custody level. Bell received another disciplinary infraction after postcards sent to him directly from a third-­party postcard vendor tested presumptively positive for drugs. A confirmation test later conducted by state police showed the initial test had returned a false positive. But he spent four months in ad-­seg.

Garrison Schrum went to ad-­seg after paper scraps in his locker tested presumptively positive for drugs. His requests for a confirmation test and urinalysis test—to prove he was not using drugs—were refused. He lost 30 days of good time, spent over a month in isolation and was transferred to a more restrictive facility. He also lost his institutional job.

Gregory Hyde’s elderly father and stepmother mailed him word puzzle books that tested presumptively positive for K2. He was held in ad-­seg for almost five months pending a disciplinary hearing, after which his visitation privileges were suspended for six months, his phone privileges restricted, he lost 75 days of good time and was removed from work and program assignment waiting lists. He was also transferred to another facility. Ironically, the puzzle books that had tested positive were later returned to him.

A handwritten letter in Matthew Ross’ property also tested presumptively positive for K2, for which he was held in ad-­seg for 30 days, lost 45 days of good time, received 40 hours of extra work duty and lost package privileges for six months. His appeal was denied and his release date delayed by the disciplinary conviction. Ross’ cell was later searched again and two more documents—his immunization records and high school transcript—tested presumptively positive. After CLS contacted prison officials on his behalf to challenge the drug testing, he was abruptly released from prison, though five days after his originally scheduled date. Prison officials then returned the documents that had tested positive for drugs.

The suit filed by these four seeks declaratory relief; an injunction to prohibit DOC from imposing disciplinary sanctions based on presumptive drug tests and requiring it to expunge all related disciplinary records; as well as monetary damages for class members and legal fees and costs for CLS attorneys as their counsel. See: Bell v. State Dep’t of Corr., Wash. Super. (Thurston Cty.), Case No. 23-­2-­03083-­34.  


Additional source: Color Test Reagents/Kits for Preliminary Identification of Drugs of Abuse, National Institute of Justice(NCJ 183258).

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Related legal cases

Bell v. State Dep’t of Corr.

Green v. Mass. Dep’t of Corr.