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JAMES T. MCCROHAN Plaintiff
vs.
BERNICE ARMOULD et al. Defendants.
 
Case:
No. C-94-0006 SI
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
 
Date:
November 16, 1995 FILED ENTERED
 
Court:
SUSAN ILLSTON United States District Court
 
Author:
The Hon. Justice Susan Illston
 

I. BACKGROUND

Plaintiff James T. McCrohan filed this action on January 3 1994 against Defendant California Department of Corrections' parole officials for alleged violations of his civil rights pursuant to 42 U.S.C. SEC. 1983. McCrohan alleges that parole officials violated his Constitutional rights through their conduct during supervision of his parole and by setting conditions on his parole requiring him to abstain from the use of alcohol and later requiring him to participate in drug testing and a substance abuse program. Plaintiff originally sought injunctive and monetary relief. In his Opposition to defendants' summary judgment motion however McCrohan stated he now seeks monetary and declamatory relief.

II. STATEMENT OF FACTS

McCrohan was convicted of felony driving under the influence of alcohol on January 4 1991. It was McCrohan's sixth conviction for driving under the influence in violation of California Vehicle Code sections 23152(b)/23175. On November 22 1992 McCrohan was released from San Quentin State Prison and to parole status. One of the conditions of McCrohan's parole was: "You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer." (Defendants' Motion for Summary Judgment Exhibit D). A special condition of "no alcohol" was also placed on McCrohan's parole. (Id.)

On November 23 1992 defendant Bernice Armould requested that McCrohan provide her with a urine sample to test for the presence of alcohol. McCrohan complied with her request. Armould then submitted McCrohan's sample for a "routine" screen a test for the presence of both drugs and alcohol. On November 30 1992 McCrohan was again asked to submit a urine sample for testing.

On December 9 1992 Armould informed McCrohan that the results of his November 23 1992 urinalysis tested positive for the presence of the drug Methamphetamine. McCrohan was instructed to attend two Narcotics Anonymous meetings "or similar drug treatment program" each week and to submit to anti-narcotics testing at the parole office each week for a month. McCrohan submitted to the tests on December 9 1992 December 14 1992 December 21 1992 and December 28 1992. At the December 28 1992 test McCrohan was placed in handcuffs temporarily and received revised parole conditions including the condition of drug and alcohol testing and was informed that a refusal to sign the revised conditions would result in his return to the state prison. McCrohan signed the revised conditions. McCrohan submitted to another urine test on January 4 1993.

McCrohan was arrested for assault with a deadly weapon on January 9 1993 and charged with the use of alcohol in violation of parole conditions. On February 11 1993 a parole revocation hearing was held and defendants presented McCrohan's positive drug test results as an aggravating factor. McCrohan's parole was revoked and he was returned to prison for one year.

On March 28 1993 McCrohan filed complaints with the California Department of Corrections protesting the imposition of narcotics testing and requesting the removal of the Special Condition of no alcohol from his parole. On March 29 1993 Ron Chun Regional Administrator of the California Department of Corrections denied McCrohan's request to remove the no alcohol condition. However after reviewing McCrohan's file Mr. Chun determined the narcotics testing condition of his parole should not have been imposed and granted that portion of McCrohan's appeal.

McCrohan filed a state tort claim with the State Board of Control for the actions described in this complaint on June 30 1993 as required under the California Tort Claims Act. Cal. Gov. Code SEC. 900 et seq. The claim was rejected by the State Board of Control on August 17 1993.

McCrohan then filed this action seeking redress for violations of his civil rights pursuant to 42 U.S.C. SEC. 1983. Defendants filed a motion for summary judgment on June 20 1995. McCrohan filed an opposition to defendants' motion for summary judgment on July 25 1995. Defendants filed a reply brief on August 8 1995. For reasons stated below Court hereby GRANTS defendants' motion for summary judgment.

III. LEGAL STANDARD

The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(e).

In a motion for summary judgment "if the party moving for summary judgment meets its initial burden of identifying for Court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact " the burden of production then shifts so that "the nonmoving party must set forth by affidavit or as otherwise provided in Rule 56 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Service Inc. v. Pacific Elec. Contractors Ass'n 809 F.2d 626 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett 477 U.S. 317 91 L. Ed. 2d 265 106 S. Ct.2548 (1986)); Kaiser Cement Corp. v. Fischbach & Moore Inc. 793 F.2d 1100 1103-04 (9th Cir.) cert. denied 479 U.S. 949 93 L. Ed. 2d 384 107 S. Ct.435 (1986).

A moving party who will not have the burden of proof at trial need only point to the insufficiency of the other side's evidence thereby shifting to the nonmoving party the burden of raising genuine issues of fact by substantial evidence. T.W. Electric 809 F.2d at 630 citing Celotex 477 U.S. at 323; Kaiser Cement 793 F.2d at 1103-04.

In judging evidence at the summary judgment stage Court does not make credibility determinations or weigh conflicting evidence and draws all inferences in the light most favorable to the nonmoving party. T.W. Electric 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. 475 U.S. 574 89 L. Ed. 2d 538 106 S. Ct.1348 (1986)); Ting v. United States 927 F.2d 1504 1509 (9th Cir.1991).

The evidence the parties present must be admissible. Fed. R. Civ. P. 56(e). Conclusory speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty Inc. v. Niagara Falls 754 F.2d 49 (2nd Cir.1985); Thornhill Pub. Co. Inc. v. GTE Corp. 594 F.2d 730 738 (9th Cir.1979). Hearsay statements found in affidavits are inadmissible. See e.g. Fong v. American Airlines Inc. 626 F.2d 759 762-63 (9th Cir.1980). The party who will have the burden of proof must persuade Court judgment that it will have sufficient admissible evidence to justify going to trial.

IV. DISCUSSION

A. Urinalysis Testing

1. Fourth Amendment Claims

McCrohan alleges the initial request for a urine sample on November 23 1993 and the subsequent imposition of narcotics testing as a condition of his parole constitute violations of his Fourth Amendment right to be free from search and seizure and his right to privacy. However parolees do not enjoy "the absolute liberty to which every citizen is entitled but only . . . conditional liberty properly dependent on observance of special parole restrictions." Morrissey v. Brewer 408 U.S. 471 480 33 L. Ed. 2d 484 92 S. Ct.2593 (1972).

Under California law all parolees are subject to a search condition. Cal. Code of Regs. title 15 SEC. 2511. In fact one of the conditions of McCrohan's parole was "you and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer." (Defendants' Motion for Summary Judgment Exhibit D).

Because a state's operation of its probation and parole system presents "special needs" beyond normal law enforcement that make the Fourth Amendment's usual warrant and probable cause requirement impracticable probation and parole searches conducted pursuant to state law satisfy the Fourth Amendment's reasonableness requirement. Griffin v. Wisconsin 483 U.S. 868 872-80 97 L. Ed. 2d 709 107 S. Ct.3164 (1987); United States v. Watts 67 F.3d 790 1995 U.S. App. 27563 *6 (9th Cir.1995).

According to the declaration of defendant Armould the "no alcohol" condition of parolees is met by urine testing. (Armould Declaration at 2). California law provides that parole agents may search a ward "as a necessary adjunct to parole supervision and surveillance." Cal. Code of Regs. title 15 SEC. 4846. Parole agents are authorized to test parolees at any time randomly and/or for cause at the agent's discretion. (Armould Declaration at 2). The urine test of McCrohan dated November 23 1992 was reasonable action to take to enforce the "no alcohol" condition of his parole. The urine test qualifies as "a necessary adjunct" to the supervision of McCrohan's parole. Because the search was conducted pursuant to state law it satisfies the Fourth Amendment's reasonableness requirement under Griffin. Id. at 872-873.

Finding that the initial urine test was proper Court turns to whether the subsequent imposition of weekly drug testing was also proper. McCrohan's specimen was tested for the presence of alcohol pursuant to the "no alcohol" condition of his parole. The results of the urinalysis indicated the presence of the drug Methamphetamine. As a consequence of this result a weekly drug test was added as a condition of McCrohan's parole.

As stated above probation and parole searches conducted pursuant to state law satisfy the Fourth Amendment's reasonableness requirement. Griffin v. Wisconsin 483 U.S. at 872-80. Under California law the Board of Prison Terms reviews and decides the cases of prisoners eligible for parole. Cal.Pen.Code SEC.5075 et seq. The Board of Prison Terms is authorized to impose any condition of parole on a prisoner as it deems proper. Cal.Pen.Code SEC. 3053. The Board of Prison Terms' regulations governing parole supervision provide that the special condition of anti-narcotics testing may be imposed where there is a documented or admitted history of controlled substance usage. Cal.Code of Regs. title 15 SEC.2513(c).

McCrohan's urine tested positive for Methamphetamine. There was therefore documented history of substance usage. The searches imposed following this result were therefore lawful under Griffin. Id. at 872-880. Testing for substance abuse as a condition of parole in light of McCrohan's history with alcohol abuse was reasonably related to the crime which resulted in his conviction. See U.S. v. Miller 549 F.2d 105 107 (9th Cir.1976).

2. Eighth Amendment Claims

McCrohan also alleges the imposition of the urine testing constituted cruel and unusual punishment thereby violating his Eight Amendment rights. However as noted above the initial search of November 23 1992 was a valid under the terms of McCrohan's parole and the subsequent imposition of urinalysis tests in light of the positive test for Methamphetamine was reasonable. McCrohan's claims of cruel and unusual punishment are without merit.

3. Fourteenth Amendment Claims

McCrohan also alleges that the procedures employed by defendants in the urinalysis testing and the use of the results of those tests at his parole revocation hearing violated his right to Due Process under the 14th Amendment. However McCrohan has failed to produce any evidence indicating defendants acted contrary to law in their conduct of the urinalysis procedures. McCrohan has shown no basis in fact to support his allegations of improper activity on the part of defendants.

McCrohan's objection to the use of the results of his urine tests at his parole revocation hearing is without merit. Under California law "All relevant reliable information available to the panel shall be considered in determining suitability for parole." Cal. Code of Regs. title 15 SEC. 2281(b). McCrohan has not shown defendants acted arbitrarily or capriciously and is therefore not entitled to relief under the Fourteenth Amendment. See Superintendent v. Hill 472 U.S. 445 457 105 S. Ct.2768 86 L. Ed. 2d 356 (1985).

4. First Amendment Claims

In addition McCrohan alleges defendants violated his First Amendment right to petition the government and his right to free expression by subjecting him to the urinalysis tests. McCrohan claims defendant Armould subjected him to these tests in retaliation for his filing of habeas petitions in June and September of 1992 his September letter of 1992 to Armould challenging the conditions of his parole and a prison "602" appeal form he filed against Armould on December 14 1992.

A claim may be stated under section 1983 where a plaintiff alleges retaliation by state actors for the exercise of his First Amendment rights. Mt. Healthy City Bd. of Educ. v. Doyle 429 U.S. 274 283-84 50 L. Ed. 2d 471 97 S. Ct.568 (1976). The plaintiff must establish both that the type of activity he was engaged in was protected by the First Amendment and that the protected conduct was a substantial or motivating factor for the alleged retaliatory acts. Id. at 285-87; see also Soranno's Gasco Inc. v. Morgan 874 F.2d 1310 1314-16 (9th Cir.1989) (inferring retaliatory motive from timing and nature of suspensions).

The right of meaningful access to Court extends to established prison grievance procedures. Bradley v. Hall 64 F.3d 1276 1995 U.S. App. 23922 *5 (9th Cir.1995); accord Hines v. Gomez 853 F. Supp.329 331-32 (N.D. Cal. 1994). This right is subsumed under the First Amendment right to petition the government for redress of grievances. Id. at 333. McCrohan's petitioning for redress is therefore protected conduct. However McCrohan has failed to establish that retaliation was a substantial or motivating factor for the imposition of the drug tests. The taking of urine samples or searches were conditions of his parole to which he agreed. McCrohan has failed to show that anything other than the fact that his urine sample tested positive for Methamphetamine resulted in the imposition of the weekly urine tests. His First Amendment claim is without merit.

B. "No Alcohol" Condition of Parole

McCrohan claims the "no alcohol" condition of his parole because of his status as an alcoholic constitutes a violation of the 8th Amendment prohibition against cruel and unusual punishment. California Crime Prevention and Corrections Regulations state that abstinence from use of alcohol may be imposed as a special condition of parole "whenever the board or the department determines that such a condition is warranted by the circumstances of the case." Cal Code of Regs. title 15 SEC. 2513(b). Under California law a parole condition is valid if it is reasonably related to parole supervision. People v. Burgener 41 Cal. 3d 505 532 224 Cal. Rptr.112 714 P.2d 1251 (1986). A parole condition is constitutional if it is reasonably related to the crime which resulted in the conviction of the parolee. U.S. v. Miller 549 F.2d 105 107 (9th Cir.1976).

The crime for which McCrohan was convicted was his sixth offense of driving under the influence of alcohol. In addition McCrohan has admitted to over fifty arrests for appearing "drunk in public." Given the character of McCrohan's criminal conduct a "no alcohol" condition was at least reasonably related to McCrohan's past criminal activity if not necessary under the circumstances.

While McCrohan claims to lack the volition required to comply with this parole condition he has failed to produce any evidence showing his physical condition is "so debilitated that his power of will and self-determination are wholly destroyed by his ingestion of alcohol." U.S. v. Miller 549 F.2d 105 107 (9th Cir.1976) citing Sweeney v. United States 353 F.2d 10 (7th Cir 1965). McCrohan's claim that the "no alcohol" condition constitutes cruel and unusual punishment is therefore without merit.

C. Narcotics Anonymous Meetings

McCrohan further alleges that defendants have violated his First Amendment right of religious freedom by requiring him to attend Narcotics Anonymous ("NA") meetings and that the imposition of such a requirement constituted an intentional infliction of emotional distress. McCrohan alleges the NA organization subscribes to a belief in a "higher power" which offends his atheist beliefs. The instructions given to McCrohan directed him to "Attend two (2) Narcotic Anonymous Meetings or similar drug treatment program sessions each week beginning 12-9-92." (Plaintiff's complaint Exhibit D) (emphasis added).

Restrictions on the exercise of First Amendment rights must be balanced against the legitimate goals and policies of the corrections system including deterrence of crime security and order rehabilitation and discipline. Pell v. Procunier 417 U.S. 817 822-823 41 L. Ed. 2d 495 94 S. Ct.2800 (1974). However because McCrohan was provided with a choice of programs to attend his First Amendment rights were not implicated. Under Bryant v. Gomez 46 F.3d 948 (9th Cir.1995) a religious adherent must show that government action burdens his or her practice of religion and prevents conduct mandated by his or her faith. Id. at 949 The burden must be shown to be substantial. Id. at 949. While the Narcotics Anonymous meetings were suggested to McCrohan he was not forced to attend them. The parole condition posed no obstacle to McCrohan's religious practices nor was he prevented from conducting himself in a manner required by his faith. There was therefore no First Amendment violation.

D. False Arrest and Imprisonment

McCrohan claims that defendants violated his First Amendment right to petition the government and his Fourth Amendment rights when they handcuffed him and subjected him to a "pat down" search allegedly in retaliation for his filing of a 602 petition protesting the conditions of his parole.

A claim of illegal arrest is cognizably under SEC. 1983 for violation of the Fourth Amendment's prohibition of unreasonable search and seizure where the allegation is that the arrest was without a warrant or other justification. Pierson v. Ray 386 U.S. 547 555-558 18 L. Ed. 2d 288 87 S. Ct.1213 (1967); Larson v. Neimi 9 F.3d 1397 1400 (9th Cir.1993); Forster v. County of Santa Barbara 896 F.2d 1146 1147 (9th Cir.1990).

According to McCrohan he was physically searched handcuffed and delivered to his parole agent defendant Armould. He was then told to sign his name to the new conditions of parole which included the drug testing condition. (Complaint at 8).

Under California law parolees remain under the legal custody of the Department of Corrections and are subject to return to prison at any time. Cal.Pen.Code SEC. 3056. A parole officer may take a parolee into custody at any time even without probable cause for arrest and the parole officer has the right to search the defendant as an incident to the arrest. People v. Contreras 154 Cal. App. 2d 321 324 315 P.2d 916 (1957).

Because defendants had the right to take McCrohan into custody at any time without probable cause viewed in light most favorable to the plaintiff the events of December 28 1992 as stated in the complaint do not make a colorable claim of either wrongful arrest or false imprisonment.

V. CONCLUSION

For the foregoing reasons and for good cause shown Defendants' for summary judgment is hereby GRANTED.

The Clerk shall close the file.

IT IS SO ORDERED.

SUSAN ILLSTON

United States District Court

JUDGMENT

In accordance with the Order of Court of November 15 1995 judgment is hereby entered in favor of defendants Bernice Armould Richard Gallego Robert Anderson Ronald Chun Sally Swanson and James Gomez and against plaintiff James T. McCrohan.

IT IS SO ORDER

SUSAN ILLSTON

United States District Court