Eaton v. Lexington-Fayette Urban County Government et al
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,
COUNTY GOVERNMENT, et al.,
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].
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,
Fourth Amendment applies in this instance and whether Plaintiff
can, as a matter of law, prevail on his claim by simply pointing
constitutional policy and procedure for urinalysis and which he
believes to be absent from the policy and procedure applicable
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
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
parties – Plaintiff and the child’s mother - were ordered to
(hereinafter, “CAP”) in January 2006. [DE 14-6; DE 68-3 at 2].
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
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
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
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.
relief from this testing on February 6, 2006, he did not allege
concerns that the testing interfered with his work schedule and
child visitation. [DE 68-3 at 3]. On February 15, 2006, a report
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
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
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
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
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 §
abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971); [DE
Plaintiff then pursued his Fourth Amendment claim in the
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
Court of Appeals which affirmed the family court on the Fourth
struck the brief for failure to comply with Kentucky Civil Rule
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
Plaintiff’s § 1983 claim in this Court. [DE 67].
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
Amendment and Plaintiff’s claim must, therefore, fail.
allegation that the drug testing to which he was subjected at
CAP was unreliable and produced inaccurate results, resulting in
his injury. [DE 68-2 at 6—7].
The Court queried whether this,
Amendments rather than the Fourth and Fourteenth Amendments and
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
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
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.
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.
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
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.
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
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,
contends that he will be able to demonstrate that he was injured
The Court now appreciates that it is this aspect of the
Fourth Amendment analysis that will apply in this case.
Court understands his claim, he seeks monetary damages because
imposed upon his body by virtue of an intrusive “search” for
bodily fluids, but his argument is even narrower than that.
contends that the intrusion upon one’s body during such a search
is reasonable only insofar as there is a reasonable hope of
information sought is whether or not Plaintiff had been using
illegal drugs during a given time frame prior to testing.
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,
subjected to an unreasonable search because there was a real
because of contamination or a failure in the performance of the
testing, for example.
Accordingly and upon reflection, the Court agrees that his
proposed by the Court, and the order to show cause shall be
The Court next turns its attention to Plaintiff’s arguments
set forth in support of his Motion for Summary Judgment.
performed in compliance with a municipal policy or procedure
which was the moving force behind the violation alleged.
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
permissible urinalysis screening.
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
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
matter of law.
Plaintiff asks the Court to conclude that all
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.
cases on which he relies provide guideposts, and this case law
may be relevant to the Court’s inquiry in this matter as it
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
programs utilized in the cases to which he cites.
unconstitutional as performed in compliance with the policies
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
additional elements in the policies and procedures which, while
not present in other matters examined by the courts, yield the
Finally, as a housekeeping matter, the Court has addressed
Defendants’ arguments from its Motion to Dismiss [DE 69] and
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:
That Defendants’ Motion to Dismiss [DE 69] is DENIED;
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.
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;
That Plaintiff’s Motion for Summary Judgment is DENIED
[DE 78, 80].
This the 31st day of March, 2015.
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