Eaton v. Lexington-Fayette Urban County Government et al

Filing 86

MEMORANDUM OPINION & ORDER: (1) Dfts' Motion to Dismiss 69 is DENIED; (2) Plt's Motion to Lift Stay 70 is GRANTED; (3) stay set in place by this Court's September 12, 2008, Memorandum Opinion and Order 22 is LIFTED, nunc pro tunc , as of July 31, 2013. (4) Court's Show Cause Order 77 is DISCHARGED; (5) Dfts' Motion for an Extension of Time 83 is GRANTED and their Response to the Motion for Summary Judgment 84 is DEEMED timely filed; (6) Plt's Motion for Summary Judgment is DENIED 78 , 80 . Signed by Judge Joseph M. Hood on 3/31/2015. (STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DAVID C. EATON,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT, et al.,
Defendants.

Civil Case No. 07-215-JMH

MEMORANDUM OPINION & ORDER

***

This Court has ordered Plaintiff to show cause why his §
1983 claim, which is based on alleged violations of the Fourth
and Fourteenth Amendments, should not be dismissed for failure
to state a claim [DE 77].

He has filed a Response [DE 79], as

well as a Motion for Summary Judgment [DE 78, 80].

Defendants

have filed a Response [DE 84] to Plaintiff’s Motion for Summary
Judgment, which the Court deems timely filed in light of their
Motion for an Extension of Time [DE 83] to file their Response,
limiting

their

arguments

solely

to

the

issue

of

whether

the

Fourth Amendment applies in this instance and whether Plaintiff
can, as a matter of law, prevail on his claim by simply pointing
to

six

elements

that

he

believes

to

be

necessary

to

a

constitutional policy and procedure for urinalysis and which he
believes to be absent from the policy and procedure applicable
at CAP.

Eaton has also filed a Reply [DE 85] in support of his

Motion for Summary Judgment.

The Court has carefully considered

all of these pleadings and concludes that the show cause order
shall be discharged and the Motion for Summary Judgment shall be
denied.
In August 2005, Plaintiff filed a Verified Petition for
Custody, Timesharing, and Child Support in the Fayette Circuit
Court, against the mother of his child. [DE 14-3]. In October
2005, the parties to that action entered into an agreed order,
which reserved the issue of custody pending an evaluation by the
Friend of the Court, set a time share schedule so that Plaintiff
might see the child, and established child support to be paid by
Eaton. [DE 14-4]. After the mother of Plaintiff’s child alleged
that

Plaintiff

had

significant

substance

abuse

issues,

both

parties – Plaintiff and the child’s mother - were ordered to
complete

a

drug

test

at

the

Community

Alternative

Program

(hereinafter, “CAP”) in January 2006. [DE 14-6; DE 68-3 at 2].
Generally,

CAP

is

part

of

the

Lexington-Fayette

Urban

County Government (hereinafter, “LFUCG”) Division of Community
Corrections and offers an alternative to incarceration for nonviolent offenders. [DE 14-9 at ¶¶ 2-3]. Services provided by CAP
include

electronic

monitoring,

day

reporting,

court-ordered

community service, and drug and alcohol testing. [Id. at ¶ 3].
The drug testing unit provides drug and alcohol testing for the
Division of Community Corrections, when testing is ordered by
2

the judicial system, and for other agencies. [Id. at ¶ 4]. The
program is non-profit, and any income realized must be invested
back into the program in its entirety. [Id. at ¶ 5].
During Plaintiff’s first test at the CAP office on January
6, 2006, he tested positive for cocaine and opiates. [DE 68-3 at
2].

The

mother

of

his

child

then

filed

motions

seeking

supervised visitation and continued compelled drug testing from
Plaintiff. [Id. at 3]. Accordingly, on January 27, 2006, the
Fayette Circuit Family Court ordered Plaintiff to undergo random
drug and alcohol testing three times a week at the CAP office.
[Id.

at

3;

DE

14-7].

Although

Plaintiff

filed

a

motion

for

relief from this testing on February 6, 2006, he did not allege
that

the

January

6

test

was

inaccurate;

rather,

he

cited

concerns that the testing interfered with his work schedule and
child visitation. [DE 68-3 at 3]. On February 15, 2006, a report
that

Plaintiff

testified

positively

for

oxymorphone

at

the

Urgent Treatment Center (“UTC”) was placed in the record, and on
February 22, 2006, an Order was entered requiring Plaintiff to
test twice a week in order to visit his child. [Id.].
Indeed, it was not until February 27, 2006, that Plaintiff
filed a motion to strike the drug screening results, claiming
that he had never used drugs. [DE 68-3 at 3]. He alleged in that
motion that the officer who conducted his drug test at CAP on
January 6, 2006, was incarcerated for altering drug test results
3

of prison inmates, pointing to a Lexington Herald-Leader article
from February 21, 2006. [Id.]. His motion was overruled on March
7, 2006, and no appeal was taken. [Id. at 4]. From March to June
of 2006, Plaintiff tested positive for cocaine use at least five
times at the CAP office. [Id.]. Further, between the dates of
July 5, 2006, and July 21, 2007, he tested positive for alcohol
use at CAP on at least twenty occasions. [Id.].
After July 21, 2007, Plaintiff did not return to the CAP
office, choosing to go to the UTC exclusively. [Id.]. At the
UTC,

Plaintiff

again

tested

positive

for

oxymorphone

in

September 2007 and for cocaine on January 27, 2007, March 3,
2007, and March 10, 2007. [Id.]. The mother of Plaintiff’s child
was granted permanent sole custody on October 24, 2007, at which
time Plaintiff was allowed supervised visits on Sundays if he
could demonstrate via Breathalyzer that he was not intoxicated
and continued to test at the UTC each Sunday. [Id.].
Plaintiff filed a Complaint in this Court on July 9, 2007,
raising claims for injunctive and declaratory relief and a claim
under 42 U.S.C. § 1983 alleging that his Fourth Amendment rights
were violated as a result of unconstitutional drug and alcohol
testing

at

CAP.

[DE

1].

Named

as

Defendants

are

Lexington-

Fayette Urban County Government (“LFUCG”); Mayor Jim Newberry,
in his official capacity; and Mary Hester, Assistant Director,
Bureau of Programs, Services & Community Placement, Division of
4

Community

Corrections,

in

both

her

official

and

individual

capacities. [DE 1].
Defendants filed a Motion for Summary Judgment in 2008.
[DE 14]. Because Plaintiff’s state suit was still pending at the
time he filed his federal complaint, this Court dismissed his
claims for injunctive and declaratory relief and stayed his §
1983

claim

for

monetary

damages

pursuant

to

the

Younger

abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971); [DE
22].

Plaintiff then pursued his Fourth Amendment claim in the

Fayette

Circuit

Family

Court.

[DE

68-2;

68-

3].

He

filed

a

motion in August 2009 seeking to implead Defendant LFUCG as a
third party defendant to pursue a declaratory judgment that CAP
testing is unconstitutional.

[DE 68-3 at 13]. After the family

court denied Plaintiff’s motion, he filed a second motion in
March 2010 asking the court to suppress all of the CAP drug test
results because they were secured in violation of his Fourth
Amendment rights. [DE 68-2]. The family court denied Plaintiff’s
motion on May 29, 2010, because it found that 1) Plaintiff did
not present a justiciable controversy, since he was no longer
required to test at CAP and had not tested at CAP in over two
years; and 2) Plaintiff had waived the right to object to the
CAP test results, since it had been four years since the court
first ordered him to test at CAP and two years since his last
test. [DE 68-3 at 6—8].

Plaintiff appealed to the Kentucky
5

Court of Appeals which affirmed the family court on the Fourth
Amendment

issue,

Plaintiff’s
procedural

albeit

claim.
defects

[DE
in

without
68-13].

addressing

the

Specifically,

Plaintiff’s

appellate

merits

citing

brief,

the

of

grave
court

struck the brief for failure to comply with Kentucky Civil Rule
of

Procedure

(CR)

76.12.

[DE

68-13].

The

Kentucky

Court

of

Appeals denied Plaintiff’s petition for rehearing on November
20, 2012. [DE 68-15]. Plaintiff then appealed to the Kentucky
Supreme Court, but it also denied his motion for discretionary
review on March 13, 2013. [DE 68-17]. Following the Kentucky
Supreme Court’s ruling, this Court instructed the parties to
file

briefs

regarding

the

propriety

of

lifting

the

stay

on

stay

on

Plaintiff’s § 1983 claim in this Court. [DE 67].
After

that

briefing,

this

Court

lifted

the

Plaintiff’s claim for monetary damages under 42 U.S.C. § 1983
and required the parties to show cause why Plaintiff’s § 1983
claim should not be dismissed for failure to state a claim upon
which relief could be granted, querying whether the claim was
viable

only

under

the

Fifth

Amendment

instead

of

the

Amendment and Plaintiff’s claim must, therefore, fail.

Fourth

[DE 77.]

II.
Prior
understood

to

the

current

Plaintiff’s

claim

round
to

be

of

briefing,

based

solely

the
upon

Court
on

his

allegation that the drug testing to which he was subjected at
6

CAP was unreliable and produced inaccurate results, resulting in
his injury. [DE 68-2 at 6—7].
in

fact,

presented

a

claim

The Court queried whether this,
under

the

Fifth

and

Fourteenth

Amendments rather than the Fourth and Fourteenth Amendments and
whether

those

municipality. 1

actions

were

attributable

to

the

defendant

A plaintiff asserting a Section 1983 claim on the

basis of a municipal custom or policy must identify the policy,
connect the policy to the municipal actor, and show that the
particular injury was incurred because of the execution of that
policy. Graham ex rel. Estate of Graham v. County of Washtenaw,
358 F.3d 377, 383 (6th Cir. 2004). A plaintiff's failure to
demonstrate

constitutional

harm

defeats

municipal

liability.

City of Los Angeles v. Heller, 475 U.S. 796 (1986).
In his Response, Plaintiff has now explained at some length
that, in fact, his claim is cognizable under the Fourth and
Fourteenth Amendments because he contends that the reliability

1

In an effort to further understand his claim, the Court considered
Plaintiff’s reference to a newspaper article from the Lexington Herald-Leader
on February 21, 2006, which concerned a former corrections officer who was
fired for falsifying drug test results of prison inmates, presumably at CAP
and expressed concern about the viability of his claim against the
municipality and its agents in light of the fact that he appeared to seek
damages based on actions taken ultra vires by someone administering the drug
tests at CAP.
In Plaintiff’s Response to the Order to Show Cause, Counsel
for Plaintiff seems puzzled by the Court’s rationale for attaching to its
July 31, 2013, Order a copy of that newspaper article and states that
Plaintiff “does debate” whether “inaccuracies can occur outside of the
Defendant-City’s testing program” as relates to this case.
Plaintiff
misunderstands the Court’s rationale for attaching a copy of the article,
which was not to demonstrate anything other than to let the parties know that
the Court had finally figured out what Plaintiff was talking about in one of
his earlier pleadings.

7

of all of the CAP drug testing to which he was subjected is in
question as a result of the policies and procedures in place
during

the

relevant

time

and

which,

he

claims,

render

the

testing an unreasonable search and seizure in violation of the
Fourth Amendment. [DE 68-2 at 7].

Plaintiff makes no objection

to the requirement that he submit to drug testing in the course
of his custody proceedings and concedes that the requirement is
reasonable for the purposes of the Court’s analysis.

Neither,

frankly, does he object to the use of urinalysis in testing for
drug use, per se, nor even most of the conditions under which
his urine samples were provided.

Notably, he does not complain

of a lack of privacy or other unreasonable conditions imposed
upon his person during the collection process.
Rather, his sole concern is with whether the testing to
which he was subjected at CAP constituted an unreasonable search
because

of

the

procedures

utilized

when

Defendants’

agents

accepted his sample and in the processes which took place after
the collection of his urine.

He alleges that the policies and

procedures set in place by the municipality were insufficient to
ensure the integrity of the chain of custody for his sample and,
ultimately,

reliable

analysis

of

the

samples

provided.

He

contends that he will be able to demonstrate that he was injured
by

testing

conducted

pursuant

guidelines.
8

to

those

procedures

and

The Court now appreciates that it is this aspect of the
Fourth Amendment analysis that will apply in this case.

As the

Court understands his claim, he seeks monetary damages because
of

the

unreasonableness

of

the

search,

i.e.,

the

indignity

imposed upon his body by virtue of an intrusive “search” for
bodily fluids, but his argument is even narrower than that.

He

contends that the intrusion upon one’s body during such a search
is reasonable only insofar as there is a reasonable hope of
returning

the

information

sought.

In

this

instance,

the

information sought is whether or not Plaintiff had been using
illegal drugs during a given time frame prior to testing.

He

contends that the city’s policies and procedures applicable to
the collection and testing of urine at CAP were inadequate to
maintain and analyze the urine specimens in a way that would
ensure accuracy of test results and reporting of test results,
even

though

policies

testing

and

was

procedures.

performed
As

in

such,

compliance
he

claims

with

that

those

he

was

subjected to an unreasonable search because there was a real
possibility

that

an

inaccurate

result

could

occur,

whether

because of contamination or a failure in the performance of the
testing, for example.
Accordingly and upon reflection, the Court agrees that his
theory

of

the

case

withstands

9

the

arguments

for

dismissal

proposed by the Court, and the order to show cause shall be
discharged.
III.
The Court next turns its attention to Plaintiff’s arguments
set forth in support of his Motion for Summary Judgment.
Plaintiff

alleges

that

he

was

harmed

because

of

Again,
testing

performed in compliance with a municipal policy or procedure
which was the moving force behind the violation alleged.
argues

that

LFUCG’s

policy

concerning

the

provision

He
and

execution of drug testing at CAP is, itself, what results in
unconstitutional testing at CAP.

Specifically, he argues in his

Motion for Summary Judgment that the policy and procedures set
forth

by

LFUCG

fail

to

provide

permissible urinalysis screening.

for

a

constitutionally

He argues that in order to

for a collection and testing protocol to pass constitutional
muster under Fourth Amendment search and seizure jurisprudence,
including Schmerber v. Calif., 384 U.S. 757 (1966), Treasury
Emp. Union v. Von Raab, 489 U.S. 656 (1989), Skinner v. Ry.
Exec. Assoc., 489 U.S. 602 (1989), and Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646 (1995), there must be a mechanism in the
policy and procedures applicable to a testing protocol to ensure
a

proper

trained

chain
and

appropriate

of

custody,

licensed
method

of

the

collection
analysis,
10

employment
and

testing

provisions

of

specifically

personnel,
for

an

protection

against

specimen

facilities,

and

tampering,

the

sample collection.

the

requirement

certification

of

donor

of

testing

anonymity

following

He contends that these elements are lacking

in both the policy and procedure which governs testing at CAP
and, therefore, in the testing performed at CAP.
The Court has reviewed his arguments and concludes that it
is

too

early

to

matter of law.
testing

must

previously
Fourth

determine

relief

is

warranted

as

a

Plaintiff asks the Court to conclude that all

have

all

adjudicated

Amendment.

conclusion.

whether

While

The

of

the

in

order

case

Plaintiff

very

law

to

same
be

does

generally

qualities

acceptable
not

as

under

the

for

that

provide

cites

to

those

opinions

to

support his argument, he provides no specific citations to any
decisional authority that states a testing program only complies
with the Fourth Amendment if it mirrors the procedures utilized
by the programs already blessed by the courts.

Certainly the

cases on which he relies provide guideposts, and this case law
may be relevant to the Court’s inquiry in this matter as it
proceeds.

Further, at this point in the litigation, Plaintiff

has offered no credible evidence for purposes of Rule 56 that
establish that CAP's drug screening program is unreliable beyond
his mere speculation and conjecture that the program must be
deemed

unreliable

because

it

does

not

mirror

that

programs utilized in the cases to which he cites.
11

testing

Thus, the

Court

is

unwilling

to

conclude

that

the

CAP

testing

is

unconstitutional as performed in compliance with the policies
and

procedures

set

forth

by

the

municipality

simply

because

those policies and procedures may not have all of the elements
found to be constitutional in other cases.

The Court imagines a

scenario where, for example, a subset of those elements may be
sufficient

to

make

a

search

reasonable,

or

there

may

be

additional elements in the policies and procedures which, while
not present in other matters examined by the courts, yield the
conclusion

that

the

testing

is

reasonable

under

the

Fourth

Amendment.
IV.
Finally, as a housekeeping matter, the Court has addressed
Defendants’ arguments from its Motion to Dismiss [DE 69] and
Plaintiff’s

Motion

to

Lift

Stay

[DE

70]

in

its

Memorandum

Opinion and Order [DE 77], although it failed to indicate at the
conclusion of it that the Motion to Dismiss would be denied and
the Motion to Lift Stay would be granted for the reasons stated
in that Memorandum Opinion and Order.

Accordingly, the Court

will do so in the order language set forth below.
Accordingly, IT IS ORDERED:
(1)

That Defendants’ Motion to Dismiss [DE 69] is DENIED;

(2)

That

Plaintiff’s

Motion

GRANTED;
12

to

Lift

Stay

[DE

70]

is

(3)

That the stay set in place by this Court’s September

12, 2008, Memorandum Opinion and Order [DE 22] is LIFTED, nunc
pro tunc, as of July 31, 2013.
(4)

That

the

Court’s

Show

Cause

Order

[DE

77]

is

DISCHARGED;
(5)

That Defendants’ Motion for an Extension of Time [DE

83] is GRANTED and their Response to the Motion for Summary
Judgment [DE 84] is DEEMED timely filed;
(6)

That Plaintiff’s Motion for Summary Judgment is DENIED

[DE 78, 80].
This the 31st day of March, 2015.

13