The instant matter has been referred for the conduct of all proceedings
including trial and entry of judgment with direct appeal to the United States Court of Appeals for the First Circuit. 28 U.S.C. SEC. 636(c). Before the Court is the Defendants' Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 as to all claims contained in the Plaintiff's Complaint.
I. INTRODUCTION
Plaintiffs George Miller and Monserrate Ramos who appear pro se are inmates confined at the Rhode Island Department of Corrections Adult Correctional Institutions (ACI). Plaintiffs Miller and Ramos the non-moving parties
have filed a Complaint against certain officials of the State's Department of Corrections (State) alleging denial of their constitutional rights to due process and to be free from unreasonable searches and seizures. They request injunctive and declamatory relief and invoke the remedial provisions of 42 U.S.C. SEC. 1983. n1
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n1 The Plaintiffs have also moved the Court to certify the instant case as a class action under Fed. R. Civ. P. 23. The motion for class certification is denied since I find that as pro se Plaintiffs they cannot adequately represent the interests of the members of the putative class. See Storm v. Coughlin 600 F. Supp.1214 (S.D.N.Y. 1984).
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I find that the undisputed facts are these. On January 22 1990 Plaintiff George Miller was required to provide a urine sample to officials at the ACI. On January 16 1990 Plaintiff Monserrate Ramos was also required to provide a urine sample. Both urine samples were subjected to a urine analysis in a testing procedure known as the EMIT which was conducted at New England Toxilab Inc. Both samples twice showed positive for cannabinoids. On January 27 1990 Plaintiff Miller was informed that he had been charged with a disciplinary violation of illegal drug use based upon the results of the urine analysis drug test. On January 29 1990 the disciplinary hearing for Plaintiff Miller was held and the charge for the disciplinary violation was found to be valid. On January 23 1990 Plaintiff Ramos was informed that he had been charged with a disciplinary violation of illegal drug use based upon the results of the urine analysis drug test. On January 29 1990 the disciplinary hearing for Plaintiff Ramos was held and the charge for the disciplinary violation was found to be valid. As a consequence
both Plaintiff Miller and Plaintiff Ramos received disciplinary sanctions of segregation and loss of good time.
The Plaintiffs say that the Defendants violated their constitutional rights by failing to insure the integrity of urine analysis drug test results. The Plaintiffs claim that the Defendants did not place the urine samples in a tamper proof container; failed to confirm the test results by alternative methods; wrongly relied on an instrument that has not been accepted as accurate by the scientific community; did not allow the Plaintiffs adequate means to defend themselves against the disciplinary charges of illegal drug use; selected the Plaintiffs for the drug tests in an arbitrary and unregulated manner; and did not implement sufficient regulations or procedures to maximize the accuracy of the test results.
In their Complaint the Plaintiffs request relief under 42 U.S.C. SEC. 1983. Specifically they ask the Court for a declamatory judgment that the Defendant' drug testing procedure is unlawful and for preliminary and permanent injunctions prohibiting the Defendants from employing such testing against Plaintiffs and other inmates. Plaintiffs also seek injunctive relief from disciplinary sanctions previously imposed upon them as a result decision of the disciplinary board.
II. DISCUSSION
A. The Standard for Summary Judgment
The summary judgment standard is well settled. Summary judgment "shall be rendered forthwith if . . . there is no genuine issue of material fact and [] the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
In determining whether summary judgment is appropriate the Court must look at the record in the light most favorable to the party opposing the motion. Poller v. Columbia Broadcasting System Inc. 368 U.S. 464 473 (1962); Hahn v. Sargent 523 F.2d 461 464 (1st Cir.1975) cert. denied
425 U.S. 904 (1976). The Court must "indulge all inferences favorable to the party opposing the motion" for summary judgment. Hahn 523 F.2d at 464. Where the Plaintiffs are pro se as here I apply these rules liberally in their favor. The pleadings motions and other papers of a pro se plaintiff are not held to the same strict standard used to measure those prepared by members of the bar. See Estelle v. Gamble 429 U.S. 97 99 (1976); Ferranti v. Moran 618 F.2d 888 890 (1st Cir.1980).
The summary judgment "burden on the moving party may be discharged by 'showing' - that is pointing out to the District Court - that there is an absence of evidence to support the non-moving party's case." Celotex Corporation v. Catrett 477 U.S. 317 325 (1986). The party opposing summary judgment must evidence specific facts which are both "significantly probative" and "material." Anderson v. Liberty Lobby Inc. 477 U.S. 242 248 (1986). Put another way the non-moving party must show that there are questions of fact which "need to be resolved before the related legal issues can be decided." Mack v. Great Atlantic and Pacific Tea Co. 871 F.2d 179
181 (1st Cir.1989).
B. The Claims Under the Fourth Amendment
The first question posed by the claims urged in the Plaintiffs' Complaint is whether the State's procedures for drug testing violate the Plaintiffs' rights secured by the Fourth and Fourteenth Amendments against unreasonable searches and seizures. n2
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n2 The Fourth Amendment to the U.S. Constitution selectively incorporated into the Fourteenth Amendment prohibits unreasonable searches and seizures by state officials. Wolf v. Colorado 338 U.S. 25 (1949). Accord Elkins v. United States 364 U.S. 206 213 (1960).
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Warrantless searches such as those to which the Plaintiffs were subjected
are presumed to be unconstitutional. See Stoner v. California 376 U.S. 483 (1964); Payton v. New York 445 U.S. 573 586 (1980). There are however certain well defined basic exceptions to the warrant requirement. See Almeida-Sanchez v. United States 413 U.S. 266 (1973); Griffin v. Wisconsin 483 U.S. 868 (1987). The quantum of probable cause required to justify a search or seizure depends on the extent of the intrusion visited upon the Plaintiffs' right to be left alone. In sum the greater the intrusion the greater must be the constitutional justification. The Supreme Court of the United States has under certain circumstances balanced "the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context." Skinner 489 U.S. 602 619 (quoting Griffin v. Wisconsin 483 U.S. 868 (1987)). In other words compelling governmental interests may outweigh privacy interests and justify a limited intrusion upon privacy.The intrusion is subjected to less scrutiny when
as here it is unrelated to the prosecution of criminal activity. Skinner
489 U.S. at 619.
The Supreme Court has held that while the collection and testing of urine does not entail an intrusion into the body it is nevertheless a search under the Fourth Amendment since it is an intrusion although a limited one upon a person's expectations of privacy. Skinner v. Railway Labor Executives Assoc. 489 U.S. 602 616 (1989). See also Treasury Employees v. Von Raab 489 U.S. 656 665 (1989). "Mandatory urinalysis clearly implicates rights under the Fourth Amendment." Berry v. District of Columbia 833 F.2d 1031 1034 (1987). Accordingly I find that the State's procedures for drug testing of the Plaintiff inmates constitute a search under the Fourth and Fourteenth Amendments. Although I so find that the instant collection and subsequent analysis of the Plaintiffs' urine samples are deemed a search
the activities of requiring them to provide urine samples involved here in a confinement setting at the ACI do not constitute a seizure. "Not every governmental interference with an individual's freedom of movement raises such constitutional concerns that there is a seizure of the person." Skinner
489 U.S. at 660.
The Plaintiffs' confinement their resulting diminished privacy expectations
and the legitimate goals and policies of the confinement facility may constitutionally limit the rights of privacy accorded to them as prisoners. Bell v. Wolfish
441 U.S. 520 (1979); Skinner 489 U.S. 602 (1989). Administrators at the ACI have a substantial legitimate interest in maintaining order preserving discipline and security within the confinement facility. Id. at 530. Because the urine testing serves the special governmental interest of maintaining the orderly administration of the prison - a need distinct from the investigation of crimes - the procedures challenged here by the Plaintiffs need not be supported by probable cause or any level of particularized suspicion to pass constitutional scrutiny. See Skinner 489 U.S. at 602 619. Here
the clear purpose of mandatory urinalysis of the Plaintiffs is to preserve institutional order discipline and security. Its intended purpose was not to discover contraband or evidence of crimes for purposes of criminal prosecution. It is well settled that with regard to inmates such as the Plaintiffs unless the procedures used for the taking of urine samples show no regard for human dignity and privacy the search is a reasonable one. n3 See Storm v. Coughlin 600 F. Supp.1214 1223 (S.D.N.Y. 1984) and the cases cited therein. A factual scenario indicating total disregard for human dignity and privacy has not been alleged in the Plaintiffs' Complaint or otherwise demonstrated. The Defendants are therefore entitled to judgment as a matter of law with respect to the Plaintiffs' claims under the Fourth and Fourteenth Amendments.
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n3 The accuracy or inaccuracy of the EMIT equipment used to test the urine sample is of no consequence to the inquiry into the reasonableness of the search under the Fourth and Fourteenth Amendments.
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C. The Claims Under the Fourteenth Amendment
The second question raised by the Plaintiffs' claims is whether Defendants' procedures for imposition of disciplinary sanctions against the Plaintiffs
upon their testing positive for drug use do violence to the due process clause of the Fourteenth Amendment to the U.S. Constitution. I find that the Plaintiffs do aver a deprivation of constitutional dimension of their right to remain in the general prison population. However the Plaintiffs have not particularized the specific nature of any other due process deprivations which they have suffered. The Plaintiffs' right to remain in the general prison population is indeed a protected liberty interest. Rodi v. Ventetuolo 941 F.2d 22 25-26 (1st Cir.1991). Given the undisputed facts I find that while the Plaintiffs were deprived of their liberty interest in remaining in the general prison population their removal from general population to segregation was done with the all of the process due them.
The Plaintiffs' remaining factual allegations with regard their general due process claim are summarized as follows:
1. The EMIT drug detection/urinalysis machine is an experimental machine which has not been generally accepted in the scientific community.
2. The Defendants select inmates to be tested for drug use in an arbitrary and unregulated manner.
3. The officials at the ACI did not properly maintain the EMIT machine and did not train personnel to properly perform the urinalysis.
4. The officials at the ACI have prevented the Plaintiffs from mounting an adequate defense to disciplinary charges of drug use by refusing to allow the Plaintiffs to introduce results of alternative testing methods and by refusing to allow the Plaintiffs to call as a witness the correctional officer who performed the EMIT urinalysis.
5. The urine sample purported to be that of Plaintiff Miller was in fact not his.
The so called EMIT test now challenged by the Plaintiffs has been found 97-99% reliable. See Jensen v. Lick 589 F. Supp.35 (D.N.D. 1984); Vasquez v. Coughlin 499 N.Y.S. 2d 461 (1986); Peranzo v. Coughlin 608 F. Supp.1504 (S.D.N.Y. 1985). In the instant case the private laboratory which performed the EMIT test on the Plaintiffs' urine samples performed two tests on each urine sample. When the same samples twice showed positive for drug use
the Plaintiff inmates were charged with disciplinary infractions. I find as a matter of law therefore that the Plaintiffs' allegations with respect to the EMIT test (no. 1 above) are without merit.
The Defendants have demonstrated that during the relevant time period the EMIT tests were performed by a private laboratory not by prison officials. The Plaintiffs rely on their pleadings to oppose the Defendants' showing. The Plaintiffs' allegations of a "random and unregulated" process for selection of inmates to be tested for drug use (no. 2 above) and their allegations with respect to improper maintenance of the equipment improper training of correctional officials for use of the equipment (no. 3 above) without more rest upon the allegations of their Complaint alone. While clear and complete factual pleadings may defeat a motion to dismiss they cannot serve to oppose the instant motion for summary judgment. See Celotex Corporation v. Catrett 477 U.S. 317 324 (1986). The Plaintiffs rely on the bare allegations of their Complaint without more to support their claims. The Defendants attach in support of their motion for summary judgment answers to interrogatories which refute the Plaintiffs' allegations. "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) except the mere pleadings themselves." Celotex 477 U.S. at 324 (emphasis added).
The Plaintiffs also allege that they have suffered a constitutional injury in that they were denied the right to make use of alternative drug testing methods which could have exculpated them (and introduce these results at their disciplinary hearings) and denied the right to call a certain witness at their hearings (no. 4 above). Finally Plaintiff Miller alleges that the urine sample attributed to him which tested positive for drug use was not his (no. 5 above).
For the reasons explained below the Plaintiffs are simply not entitled to have their original urine sample tested by an alternative method and are not entitled to call any witness they choose. While the correctional officer may have supervised the taking of the Plaintiffs' urine samples
which I have found to be a lawful search the officer did not perform the EMIT urinalysis. See Defs.' Answers to Pls.' Interrogs. Nos. 7 and 10. See also Defs.' Statement of Undisputed Facts para. no. 10. It was within the discretion of the administrators at the ACI to deny the Plaintiffs' request to call the correctional officer as a witness at the hearing. See Morris v. Travisono 499 F.Supp.149 (D.R.I. 1980).
While the Plaintiffs and all inmates are entitled to due process the process due is of a lesser degree than the process which free citizens are due. In Hewitt v. Helms 459 U.S. 460 (1983) the Court described the process which is due inmates on imposing disciplinary sanctions such as administrative segregation n4. The requirements are relatively modest:
An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison officials charged with deciding whether to transfer him to administrative segregation . . . So long as this occurs and the decision maker reviews the charges and then-available evidence against the prisoner the Due Process Clause is satisfied.
Id. at 476. Each Plaintiff when charged with a disciplinary violation
was entitled to and did receive advanced notice of a hearing and a statement of the fact-finders as to the evidence relied upon. Plaintiffs Miller and Ramos were given an opportunity to present their views orally before ACI officials. The Plaintiffs had a full opportunity to present before the disciplinary board all of the claims they make here including Plaintiff Miller's claim that the urine sample attributed to him was not his. Given the undisputed material facts of this case I find that the Plaintiffs are not entitled to a de novo review under the remedial provisions of Sec. 1983 in this Court of the decisions made by the ACI officials adverse to the Plaintiffs. I note that the Plaintiff Ramos did not administratively appeal from the decision of the Disciplinary Board. Yet Ramos looks to this Court for relief.
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n4 The Plaintiffs may not be credited the "good time" of which they claim they have been unconstitutionally deprived in a claim under SEC. 1983. Such relief would require an alteration of sentence and may only be sought via a petition for habeas corpus review. See Preiser v. Rodriguez 411 U.S. 475 498-99 (1973) and Wolff v. McDonnell 418 U.S. 539 544 (1974).
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Not all errors by prison officials committed in the context of a disciplinary hearing if any were made are of constitutional dimension. Relief from any errors which the Plaintiffs believe were committed in their disciplinary hearings should be pursued under Rhode Island's Administrative Procedures Act or other State law in a State forum. See Cugini v. Ventetuolo 781 F.Supp.107
113 (D.R.I. 1992). This result is consistent with considerations of comity and federalism.
In Cugini the Plaintiff moved the Court to find certain officials of the ACI in contempt for violation of the Morris rules established in Morris v. Travisono 310 F.Supp.857 (D.R.I. 1970). The Morris rules govern the classification standards privileges and restrictions for each classification
procedures for discipline (including a list of those actions which are disciplinary violations) and conditions of confinement for inmates at the ACI. Morris v. Travisono 499 F.Supp.149 161 (D.R.I. 1980) (Morris IV).
U.S. District Judge Lagueux of this Court observed that the Plaintiff in Cugini sought merely "to remedy what he considers an erroneous judgment" by ACI officials. 781F.Supp. at 114. The Plaintiff in Cugini did not invoke Sec. 1983 as do Plaintiffs Miller and Ramos. Plaintiffs Miller and Ramos have asserted claims in their Complaint which are in the guise of constitutional claims under Sec. 1983. They seek in effect however the same relief as did Plaintiff Cugini - a de novo review of what they consider to be an erroneous judgment by ACI officials. The Plaintiffs cannot obtain the relief they seek under the Due Process Clause of the Fourteenth Amendment since I find no deprivation of their liberty interests done by officials of the ACI which are constitutionally unjustified.
"Given the history and constitutional adequacy of Rhode Island's [Morris rules] it will be the unusual case involving marked departure by state officials therefrom which might give rise to a supportable claim of constitutional deprivation . . ." Palmigiano v. Mullen 491 F.2d 978 980 (1st Cir.1974). I find that the Defendants' procedures for drug testing and imposition of disciplinary sanctions on the Plaintiffs are in accordance with the requirements of due process measured by Hewitt v. Helms 459 U.S. 460 (1983) and Morris v. Travisono 499 F.Supp.149 (D.R.I. 1980).
III. CONCLUSION
Plaintiffs Miller and Ramos the non-moving parties have not evidenced specific facts which are both "significantly probative" and "material" to defeat the Defendants' motion. Anderson v. Liberty Lobby Inc. 477 U.S. 242 248 (1986). There are no material facts in dispute with respect to either the procedures used by the Defendants for the testing of urine or the Plaintiffs' opportunity to present their views at their disciplinary hearings which "need to be resolved before the related legal issues can be decided." Mack v. Great Atlantic and Pacific Tea Co. 871 F.2d 179
181 (1st Cir.1989). The Defendants' have demonstrated that they are entitled to judgment as a matter of law on the Plaintiffs' claims made under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment.
Accordingly the Defendants' Motion for Summary Judgment as to all claims in the Plaintiffs' Complaint is GRANTED. The Clerk shall enter judgment in favor of the Defendants forthwith.
Jacob Hagopian
United States Magistrate Judge