Parks v. Terrebonne Parish Consolidated Government et al
ORDER AND REASONS GRANTING 29 Multi-Management Services, Inc.'s Motion to Dismiss and GRANTING in part and DENYING in part the Parish's 37 Motion to Dismiss. Signed by Judge Martin L.C. Feldman on 2/22/17. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERRY ALLEN PARKS
CONSOLIDATED GOVERNMENT, ET AL.
ORDER AND REASONS
Services, Inc.’s motion to dismiss for failure to state a claim;
and (2) Terrebonne Parish Consolidated Government’s motion to
alternatively, motion for summary judgment, or for a more definite
For the reasons that follow, MMSI’s motion is GRANTED,
and the Parish’s motion is GRANTED in part and DENIED in part.
This civil rights litigation was instigated by a former
Terrebonne Parish employee who alleges that he was forced into
early retirement after a positive drug test, a test that allegedly
failed to comply with federally-mandated drug testing procedures.
Consolidated Government on April 5, 1982 and, after a probationary
period, he became a permanent employee of the Parish. 1 As a tenured
and permanent public employee, Parks could only be terminated for
cause with notice and an opportunity to be heard pursuant to a
procedure established by the official municipal policy of the
During his 33 years of employment, Parks had only one
Parks planned to retire at the age of 62, in
2021, despite having the necessary retirement credits to have done
so since April 2014.
Throughout his employment, the Parish had in effect a drug
testing policy, which called for random drug testing of safety
sensitive employees, such as Parks.
The policy provides that “all
[Parish] drug screens shall be submitted in accordance with the
Transportation at 49 CFR Part 40.”
Pursuant to Parish policy,
employees who test positive for illegal substances are subject to
immediate termination; this is so regardless of whether the drug
test is administered in accordance with procedural safeguards,
standards, and federal regulations.
On October 12, 2015, Parks
was required to submit to a random drug test as a condition of his
employment as an Instrumentation Technician.
The drug test was
Services, Inc.; the sample was tested by Alere Toxicology Services,
The factual summary is drawn from the complaint.
Inc.; and it was reviewed by Brian N. Heinen, a Professional
MMSI, Alere, and Heinen, it is alleged, were
agents for the Parish and directed by it to implement official
municipal policy and carry out the government function of drug
testing its employees.
Three days after the test, Parks was advised that the drug
test indicated positive for marijuana.
That same day, Parish
Manager Al Levron told Parks he could either resign and take early
retirement, or be fired. Later that day, Parks presented a written
resignation letter to the Parish Director of Human Resources, Dana
Ortego, in which he requested his retirement benefits.
procedural errors made by MMSI, Alere, and Heinen in administering
the test, and that the procedural guidelines dictate that the test
should have been reported as rejected or cancelled. In particular,
Parks alleges that MMSI violated the procedures and standards
contained in 49 CFR Part 40 by failing to follow the guidelines
concerning chain of custody and control: MMSI removed the specimen
from Parks’s sight during the collection process, rendering Parks
unable to properly authenticate his specimen; MMSI failed to have
facilitated accurate identification of the sample.
specimen to Alere, the laboratory used by the Parish, for testing.
Transportation procedures by failing to recognize the flaws in the
chain of custody and the lack of Parks’s initials on the specimen
labels; which should have halted the testing process and resulted
in a rejected test. Parks further alleges that Heinen, the medical
review officer for the Parish, who obtained the specimen from
Alere, also violated the relevant procedures.
alleges, breached his duty to act as an independent and impartial
gatekeeper and advocate for the accuracy and integrity of the drug
testing process by failing to determine that there was a problem
with the drug testing procedures that should have caused the test
to be cancelled.
Upon confirmation of the test results received
procedures and standards by failing to directly contact Parks to
discuss the results confidentially with him before reporting the
results to his employer.
Instead, Parks was contacted by a member
of Heinen’s staff to discuss the test result; Parks never spoke
directly with Dr. Heinen prior to Heinen’s report to the Parish
regarding the positive drug test result.
Parks alleges that the positive drug test, which was done and
taken in violation of the Fourth Amendment, cannot support the
termination of a tenured public employee like him.
On October 12,
2016, Parks sued Terrebonne Parish Consolidated Government, MultiManagement Services, Inc., Alere Toxicology Services, Inc., and
Brian N. Heinen, a Professional Medical Corporation, in this Court.
plaintiff amended his complaint. 2
Parks alleges that, for urine
testing to be reasonable under the Fourth Amendment, the test must
be conducted in accordance with minimum procedural requirements
The defendants violated the procedures contained
in 49 C.F.R. Part 40, Parks alleges, as well as the nearly
identical guidelines called for by state law, in particular, the
Louisiana Drug Testing law, La.R.S. 49:1001, et seq. Parks alleges
that, in administering, collecting, testing, and reviewing the
procedurally flawed drug test, MMSI, Alere, and Heinen were acting
under color of state law and in accordance with official municipal
policy. Due to the objectively unreasonable acts of the defendants
and the resulting unconstitutional search and seizure that led to
his constructive discharge, Parks alleges he suffered financial
losses including past lost wages, lost future earnings, lost life
The Court denied as moot the motions to dismiss the initial
disability benefits, and lost deferred retirement benefits; he
distress, and loss of enjoyment of life. Parks seeks reinstatement
as well as damages.
The Parish and MMSI now move to dismiss the
claims asserted in the amended complaint.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”
See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)).
But, in deciding whether dismissal is
warranted, the Court will not accept conclusory allegations in the
complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
Id. at 679.
“Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as
other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
Funk v. Stryker Corp., 631 F.3d 777, 783 (5th
Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)).
Parks bring this civil rights action under 42 U.S.C. § 1983
contends that a urinalysis administered pursuant to the Parish’s
random drug testing program subjected him to an unreasonable search
and seizure and that his resulting constructive discharge in
response to the positive test result deprived him of property
Fourteenth Amendments to the U.S. Constitution.
Terrebonne Parish Consolidated Government and MMSI seek to
dismiss the plaintiff’s claims based on Section 1983 and state
The Parish contends that Parks fails to allege an official
municipal policy or custom that violated his Fourth or Fourteenth
Amendment rights, and that Parks fails to allege a constitutional
violation sufficient to state a claim for municipal liability.
MMSI contends that Parks fails to allege that it acted under color
of state law in administering the drug test and that he also fails
to allege a constitutional violation.
The plaintiff counters that
he has sufficiently alleged that the procedurally flawed drug test
violated his Fourth Amendment right to be free from unreasonable
search and seizures, that he was constructively discharged without
the process due to him under the Fourteenth Amendment, and that
MMSI’s action as an agent of the Parish constitutes state action.
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
It creates a
private right of action for violations of federally-secured rights
under color of state law:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State..., subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws...shall
be liable to the party injured....
42 U.S.C. § 1983.
To state a § 1983 claim, a plaintiff must
satisfy three elements:
(1) deprivation of a right
Constitution or federal law;
that occurred under color of state law, and
was caused by a state actor.
Victoria W. V. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)(citation
Parks alleges that, as a safety-sensitive employee of the
Parish, he was subject to random drug tests in accordance with
Parks alleges that the drug test was procedurally
defective and therefore “done and taken” in violation of the Fourth
U.S. CONST. amend. IV.
Fourth Amendment implications
of compelled urine testing in the workplace are settled.
testing is a search within the meaning of the Fourth Amendment
because it intrudes upon an individual’s expectation of privacy.
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995)(citing
Skinner v. Rwy. Labor Execs. Ass’n, 489 U.S. 602, 617 (1989)).
comply with the Fourth Amendment’s reasonableness requirement,
drug testing generally must be based on individualized suspicion
of wrongdoing. Chandler v. Miller, 520 U.S. 305, 313 (1997)(citing
Vernonia, 515 U.S. at 652-53).
“But particularized exceptions to
the main rule are sometimes warranted based on ‘special needs[,]’”
which include “concerns other than crime detection.”
Skinner, 489 U.S. at 619).
Accordingly, “where a Fourth Amendment
intrusion serves special government needs, it is necessary to
Government’s interests to determine whether it is impractical to
require a warrant or some level of individualized suspicion in the
Nat’l Treasury Emps. Union v. Von Raab, 489
U.S. 656, 665-66 (1989).
The “special needs” framework of Skinner, which held that
drug tests for transportation safety fall into the “special needs”
exception to the warrant requirement, applies to the Parish’s drug
testing policy of safety sensitive employees like Parks. 3
Skinner, the Supreme Court held that public safety is a special,
sensitive railroad employees as a way of enforcing restrictions on
workplace drug and alcohol use.
Skinner, 489 U.S. at 620-21.
employees must balance the employees’ privacy interests against
the government’s need to test without individualized suspicion.
Id. at 624.
Considering the privacy interest, the Supreme Court
their “participation in an industry that is regulated pervasively
to ensure safety, a goal dependent, in substantial part, on the[ir]
health and fitness.”
Id. at 627.
On the other hand, Skinner found
“compelling” the government’s interest in drug testing safety
sensitive employees without a showing of individualized suspicion,
ultimately concluding that the government’s compelling interest
outweighed the privacy concerns.
Accordingly, applying this
framework, a warrantless drug test serving special needs may be
Parks alleges that he is
balancing test, the Court finds that the government’s interest in
conducting the search outweighs the individual’s privacy interest.
Parks alleges that the Parish forced him to retire when his
constructive discharge deprived him of his property interest in
employment without due process of law.
The Fourteenth Amendment forbids a state from depriving “any
person of life, liberty, or property, without due process of law.”
situations may endow an employee with a legally cognizable property
Muncy v. City of Dallas, Tex., 335 F.3d 394, 398 (5th
Cir. 2003)(citation omitted).
Whether a property interest exists
“is guided by the specific nature and terms of the particular
employment at issue, and informed by the substantive parameters of
the relevant state law."
employment without being afforded procedural due process, Parks
must allege that (1) he has a property interest in his employment
sufficient to entitle him to due process protection; and (2) that
he was terminated without receiving the due process protections to
which he was entitled.
See McDonald v. City of Corinth, Tex., 102
F.3d 152, 155-56 (5th Cir. 1996).
“In Louisiana, a permanent
interest in [his] job.”
See Wallace v. Shreve Mem’l Library, 97
F.3d 746, 748 (5th Cir. 1996).
“’[S]ome type of hearing’ is
ordinarily a constitutional requirement for due process purposes
before a public employee who has a property interest in his job
may be terminated.”
Fowler v. Carrollton Pub. Library, 799 F.2d
Loudermill, 470 U.S. 532, 542 (1985)).
The Supreme Court has
The essential requirements of due process ... are notice
and an opportunity to respond.
The opportunity to
present reasons, either in person or in writing, why
proposed action should not be taken is a fundamental
requirement. The tenured public employee is entitled to
oral or written notice of the charges against him, an
opportunity to present his side of the story. To require
more than this prior to termination would intrude an
unwarranted extend on the government’s interest in
quickly removing an unsatisfactory employee.
Loudermill, 470 U.S. at 546 (citations omitted).
If Parks was a permanent classified civil service employee
and if he was terminated, the Parish’s failure to provide him with
Fowler, 799 F.2d at 980.
Parks does not
evidence that the employer made the employee’s working conditions
so intolerable that a reasonable employee would feel compelled to
Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 562
(5th Cir. 2003)(citation omitted).
In other words, a constructive
discharge occurs when the employer places the employee “between
the Scylla of voluntary resignation and the Charybdis of forced
Fowler, 799 F.2d at 981.
discharge in a procedural due process case constitutes a § 1983
claim only if it amounts to forced discharge to avoid affording
pretermination hearing procedures.”
Id.; see also Rutland v.
Pepper, 404 F.3d 921, 923 (5th Cir. 2005).
Parks’ Section 1983 claims against the Parish must be analyzed
in accordance with the Monell framework.
“persons” within the meaning of § 1983.
Servs., 436 U.S. 658, 690 (1978).
Monell v. Dep’t of Soc.
But, it has been cautioned,
“[t]hey are liable only for their own acts and not those attributed
to them by principles of respondeat superior.”
F.3d at 482 (citing Monell, 436 U.S. at 691-92).
Section 1983 liability against a municipality under Monell is
appropriate in the limited circumstance of when a constitutional
tort is caused through the execution of a policy or custom of the
See Bowen v. Watkins, 669 F.2d 979, 989 (5th Cir.
“[A] local government may not be sued
under § 1983 for an injury inflicted solely by its employees or
Instead, it is when execution of a government’s policy or
custom ... inflicts the injury that the government as an entity is
responsible under § 1983.”
Monell, 436 U.S. at 694.
To determine whether municipal liability attaches, the Court
looks to whether unconstitutional conduct is directly attributable
“isolated unconstitutional actions by municipal employees will
Houston, 237 F.3d 567, 578 (5th Cir. 2001)(citations omitted).
Indeed, the rules for imposing municipal liability are wellsettled; proof of three elements is vital: (1) a policy maker; (2)
an official policy or custom; and (3) causation: a violation of
constitutional rights whose “moving force” is the policy or custom.
Id. (citing Monell, 436 U.S. at 694). 4
Official municipal policy,
the U.S. Supreme Court has observed, “includes the decisions of a
government’s lawmakers, the acts of its policymaking officials,
and practices so persistent and widespread as to practically have
Proof of these three elements is necessary “to distinguish acts
of the municipality from acts of employees of the municipality,
and thereby make clear that municipal liability is limited to
action for which the municipality is actually responsible.” Burge
v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999)
the force of law.” See Connick v. Thompson, 131 S.Ct. 1350, 1359
municipality is actually responsible.’”).
The Fifth Circuit has
defined an official policy for Section 1983 purposes as:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality’s lawmaking officers or by an official
to whom the lawmakers have delegated policy-making
2. A persistent, widespread practice of city officials
or employees, which, although not authorized by
officially adopted and promulgated policy, is so common
and well settled as to constitute a custom that fairly
represents municipal policy.
Actual or constructive
knowledge of such custom must be attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)(en
“Municipal liability for civil rights violations under § 1983
is based on causation, rather than respondeat superior.”
v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008)(citation
“The fact that a tortfeasor is an employee or agent of
a municipality is therefore not sufficient for city liability to
attach; the municipality must cause the constitutional tort, which
occurs ‘when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury.’”
“That a plaintiff has suffered a deprivation
of federal rights at the hands of a municipal employee will not
alone permit an inference of municipal culpability and causation;
the plaintiff will simply have shown that the employee acted
Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. V. Brown,
520 U.S. 397, 411 (1997)(“Where a court fails to adhere to rigorous
requirements of culpability and causation, municipal liability
collapses [impermissibly] into respondeat superior liability.”).
A determination of municipal liability demands more, imposing “a
stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.”
(“A plaintiff must demonstrate that a municipal decision reflects
“Liability for unauthorized acts is personal; to
hold the municipality liable, Monell tells us, the agent’s action
must implement rather than frustrate the government’s policy.”
Bolten, 541 F.3d at 551 (quoting Auriemma v. Rice, 957 F.2d 397,
400 (7th Cir. 1992)).
The Parish seeks to dismiss the plaintiff’s claims against it
violation and fails to attribute any alleged violation to one of
MMSI seeks to dismiss the plaintiff’s claims against
it on the grounds that Parks fails to allege a constitutional
violation and fails to allege that MMSI is a state actor or that
its private action is fairly attributable to the state.
Section 1983 Claim Based on Fourth Amendment Violation
The plaintiff’s Monell claim based on an alleged Fourth
Amendment violation must be dismissed for failure to
state a claim.
Parks alleges that his drug test was procedurally defective
and fatally flawed and this violated his Fourth Amendment right to
be free from unreasonable searches and seizures.
contends that Parks fails to allege that the Parish’s drug testing
policy was the moving force behind his Fourth Amendment violation
and that this is fatal to his Monell claim based on the Fourth
The Court agrees.
Parks fails to state a claim for relief as to his Section
1983 claim based on an alleged Fourth Amendment violation because
plaintiff’s opposition papers. 5
The Manual contains the Parish’s
anti-drug policy; pertinent to random testing, it provides:
E-2 Random testing
E-2.1 All DOT regulated employees and NON-DOT employees
positions, shall be subject to random selection for
submission of a urine specimen and breath sample for
routine analysis and screening for the presence of
controlled, dangerous substances and alcohol, in
accordance with all applicable state and federal laws
Parks does not mount a facial challenge to the constitutionality
of this policy.
Parks does not meaningfully dispute that this
municipal drug testing policy, which mandates random drug tests of
Nevertheless, he complains that his drug test was
“performed haphazardly, without adherence to federal and state
In other words, Parks complains that his particular
drug test was not conducted in accordance with the Department of
Even if the Court assumes that Parks
alleges a Fourth Amendment constitutional violation attributable
to procedural errors in administering his drug test, he fails to
unconstitutional Parish policy or custom.
To the contrary, the
There is no dispute that the Court may consider this public record
without converting the motions to dismiss into ones for summary
judgment. See Funk, 631 F.3d at 783.
compliance with the Department of Transportation regulations; it
“All Terrebonne Parish drug screens shall be submitted in
Department of Transportation at 49 CFR Part 40.”
See TP Personnel
Policy Manual, Section 13, J-1.
Because Parks fails to allege
constitutional rights, he has not stated a plausible Monell claim
based on a Fourth Amendment violation.
The plaintiff’s Section 1983 claim based on the Fourth
Amendment against MMSI must be dismissed for failure to
state a claim.
Parks alleges that MMSI failed to comply with federally
mandated drug testing procedures when MMSI collected his urine
In particular, he alleges at paragraphs 12 and 13 of his
On October 12, 2015, TPCG management, acting
pursuant to official municipal policy, required the
Plaintiff to submit to a random drug test, which was
administered and collected by MMSI, tested by Alere, and
reviewed by Heinen.
The Defendants, MMSI, Alere, and
Heinen, agents for TPCG, were directed by TPCG to
implement official municipal policy and carry out the
government function of drug testing its employees.
In its collection of the Plaintiff’s urine
specimen, MMSI violated the procedures and standards
contained in 49 CFR Part 40, resulting in a procedurally
invalid drug test.
MMSI failed to follow the proper
guidelines in connection with the chain of custody and
control. MMSI removed the Plaintiff’s specimen from his
(Plaintiff’s) sight during the collection process,
resulting in the Plaintiff being unable to properly
authenticate his specimen.
MMSI also failed to have
Plaintiff initial the tamper-proof labels, which is
vital to accurately identifying the specimen and
certifying the sanctity of the test.
procedural deficiencies, MMSI forwarded the test to
Alere, the laboratory utilized by TPCG, for testing.
MMSI contends that Parks fails to state a Section 1983 claim
because he fails to allege that MMSI was acting under color of
state law in administering the drug test.
MMSI contends that
dismissal is appropriate for the additional reason that Parks
alleges that MMSI acted in contravention of the Parish’s drug
testing policy and, therefore, fails to allege that MMSI acted
under color of state law.
The Court agrees.
Because MMSI is a private actor, “the challenged ‘conduct
allegedly causing the deprivation of a federal right’ must be
‘fairly attributable to the State’ for Section 1983 to apply.”
Doe v. United States, 831 F.3d 309, 314 (5th Cir. 2016)(quotation
attributable to the State[,]” the Supreme Court has used at least
Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th
“It is unclear whether these tests ‘are actually
characterizing the necessarily fact-bound inquiry,’” the Fifth
Circuit has observed.
Doe, 831 F.3d at 314 (citation omitted).
attributable to the State, the Court begins by identifying the
specific conduct of which the plaintiff complains.
Doe, 831 F.3d
at 316 (citing Cornish, 402 F.3d at 550).
It appears that Parks invokes the nexus test. 6
test focuses on whether the state’s involvement is such that the
private actor’s conduct can fairly be treated as that of the state
Doe, 831 F.3d at 314.
Here, read generously, Parks
alleges that the Parish contracted with MMSI (and others) to
administer its random drug testing policy.
Parks complains that
-- in violation of Parish policy that drug tests comply with
federal regulations -- MMSI failed to follow federal protocol by
failing to abide by chain of custody requirements and failing to
But, the “[a]cts of ... private contractors do not
become acts of the government by reason of their significant or
total engagement in performing public contracts.”
F.3d at 550 (citation omitted).
There are no allegations to
suggest that the Parish had any role whatsoever, or maintained any
Parks does not allege facts that would support a finding that
MMSI performs a function traditionally existing as the exclusive
province of the state (such that the public function test would be
met); nor does Parks allege facts that would support a finding
that the Parish has exercised coercive power or encouraged MMSI to
manipulate the drug test (such that the state compulsion test would
be met); nor does Parks allege facts that would support a finding
that MMSI and the Parish were jointly engaged in administering the
procedurally defective drug test (such that the joint action test
would be met). See Doe, 831 F.3d at 315 n.3.
involvement in, let alone control over, the drug testing procedures
allegation that MMSI was an agent of the Parish fails to include
facts that, if true, would indicate that MMSI’s alleged procedural
failures are attributable to the Parish.
Additionally, Parks fails to allege that MMSI conspired with
or acted in concert with the Parish sufficient to subject a private
entity such as MMSI to liability under Section 1983.
v. Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004).
There are no
allegations in the amended complaint that suggest that the Parish
and MMSI agreed with each other to manipulate Parks’s drug test by
botching the testing procedures.
In fact, Parks alleges that MMSI
violated municipal policy by failing to comply with the federal
regulations governing drug testing procedures.
Parks alleges that
the Parish had a policy requiring adherence to DOT regulations in
drug testing employees and that MMSI, the private actor hired to
administer the drug test, failed to comply with those regulations.
When the conduct about which Parks complains cannot be ascribed to
a decision by the Parish, he cannot state a claim under Section
1983 because he challenges only private action.
Edmondson Oil Co., Inc., 457 U.S. 922, 940 (1982).
See Lugar v.
Finally, MMSI also contends that Parks’s Section 1983 claim
based on a Fourth Amendment violation must be dismissed because he
fails to allege a constitutional violation.
The Court agrees.
Parks alleges that he is an Instrumentation Technician and is
considered a safety sensitive employee in the context of the
Parish’s drug testing policy.
Parks does not dispute that the
“special needs” framework of Skinner applies here.
Nor does Parks
dispute that the Parish’s compelling interest in drug testing
safety sensitive employees without a showing of individualized
suspicion outweighs his privacy concerns.
Notably, Parks does not
allege that MMSI’s bungled drug test exceeded the scope of a
typical, constitutionally permissible drug test.
Amendment violation is that drug tests that fail to conform with
Amendment as a matter of law.
He offers no case literature to
support his novel theory.
guidelines set out at 49 CFR Part 40 is to ensure that a drug test
meets certain standards that guarantee reliability and accuracy
before they can be used to support significant consequences to an
individual employee who is subject to the test.”
Parks is wrong.
The purpose of the federal drug testing regulations -- the reason
why the Secretary of Transportation was tasked with prescribing
regulations to establish drug testing programs -- is “[i]n the
interest of motor vehicle safety.”
49 U.S.C. § 31306.
regulations themselves provide that “[t]he purpose ... is to
establish programs designed to help prevent accidents and injuries
substances by drivers of commercial motor vehicles.”
49 C.F.R. §
Indeed, “[t]his regulatory scheme does not evince a
concern for the protection of drivers who believe that they have
been aggrieved through the drug testing process,” and courts
generally hold that these regulations do not imply a private cause
See Parry v. Mohawk Motor of Michigan, Inc., 236 F.3d
299, 308-09 (6th Cir. 2000); Drake v. Lab. Corp. of Am. Holdings,
290 F. Supp. 2d 352, 354 (E.D.N.Y. 2003), aff’d, 458 F.3d 48 (2d
Constitutional challenges to drug tests typically involve
See, e.g., BNSF Ry. Co. v. U.S. Dept. of
disrobing requirement that was part of regulation requiring direct
situations posing heightened risk of cheating, despite contention
that it amounted to a strip search); Kennedy v. City of New York,
1995)(considering constitutional violation where plaintiff was
“allegedly ordered to urinate in his hospital room, in front of
friends and relatives, including police officers”).
does not allege any such concerns regarding his privacy.
procedures in administering his drug test; he does not challenge
the reasonableness or scope of the test called for by Parish
administering the test on the part of MMSI and the other private
Parks fails to allege a Fourth Amendment
Section 1983 Claim Based on Fourteenth Amendment Violation
The Parish and MMSI both seek dismissal of the plaintiff’s
Section 1983 claim that he was deprived of his property interest
in employment without due process required by the Fourteenth
Amendment when he was constructively discharged after his drug
test indicated positive for marijuana.
Because the plaintiff
appears to abandon any Section 1983 claim based on the Fourteenth
Amendment as to MMSI, 7 the Court focuses on the plausibility of
his Monell claim against the Parish.
In opposing MMSI’s motion to dismiss, Parks only addresses MMSI’s
arguments concerning his Fourth Amendment claim. MMSI’s arguments
favoring dismissal of the Section 1983 claim based on a Fourteenth
Amendment claim have obvious merit.
Parks fails to allege any
Parks alleges that he has a property interest in his continued
employment with the Parish and complains that municipal policy
calls for termination of employment regardless of whether the drug
test is administered in accordance with established procedural
contends that Parks fails to allege a property interest in his
continued employment, concluding without citation to authority
that “a public employee does not have a protected interest in
continued employment when he can be terminated for good cause.”
The Parish also argues that the plaintiff fails to allege facts
discharged; the Parish insists that Parks voluntarily resigned.
Viewing the well-pleaded allegations in the light most favorable
to the plaintiff, the Court finds that Parks has plausibly alleged
a Section 1983 claim against the Parish based on the Parish’s
policy of firing employees who test positive for drugs.
Parish policy calls for termination of employment of any
individual who tests positive for controlled substances, including
Parks challenges this policy as depriving him of his
facts that would support a finding that MMSI played any role in
the ultimate employment decision by the Parish.
according to Parish policy, Parks could be fired regardless of
compliance with the procedures Parks alleges MMSI violated.
The Personnel Policy Manual states:
property interest in his employment without due process.
alleges that he was forced to retire, with no predeprivation
hearing, solely as a result of a positive drug test that failed to
Although the Parish disputes Parks’s allegation that he had
a property interest in continued employment, the Parish offers no
support for its contention that he did not because he could be
fired for cause.
In fact, the plaintiff’s position finds support
in the Supreme Court, which has “held that public employees who
can be discharged only for cause have a constitutionally protected
property interest in their tenure and cannot be fired without due
Gilbert v. Homar, 520 U.S. 924, 928-29 (1997)(citations
The Court need not decide whether, in fact, Parks had
a property interest in his continued employment at this stage of
the litigation; neither side grapples with the individualized
inquiry informed by Louisiana law. 9 However, because Parks alleges
G-2 the confirmed presence of a controlled, dangerous
substance in a urine sample of an employee/prospective
employee shall result in termination of said individual.
The Court points out that Parish policy at G-7 provides:
As relates to TPCG employees within the Houma Fire and
Police Civil Service System, disciplinary action
provided for in this policy shall be imposed in
that he has such a property interest, dismissal is not appropriate.
If Parks was a permanent classified civil service employee and if
See Fowler, 799 F.2d at 980.
The Parish also seeks to dismiss the plaintiff’s claim based
on his property interest deprivation on the ground that Parks was
not fired, but, rather, chose to retire.
The Court need look no
further than the plaintiff’s allegations to reject the Parish’s
Parks alleges that he was constructively discharged and
includes facts that, if true, plausibly support such a claim.
outlined above, a constructive discharge occurs when the employer
places the employee “between the Scylla of voluntary resignation
and the Charybdis of forced termination.”
Fowler, 799 F.2d at
Parks alleges that he was confronted with an “either or”
termination proposition; that he was required to make the decision
“on the spot;” and that he had been informed by a supervisor that
he could lose his retirement if he was fired.
Parks has alleged
that he has a property interest in his employment, and that he was
terminated (or constructively discharged) without receiving the
due process protections to which he alleges he was entitled.
accordance with applicable state Fire and Police civil
service law and due process requirements.
termination of employment without being afforded procedural due
See McDonald v. City of Corinth, Tex., 102 F.3d 152,
155-56 (5th Cir. 1996).
State law Claims
constitutional claims on the ground that such claims also require
constitutional claims against MMSI fail because neither state
constitutional provision “extend[s] so far as to protect private
citizens against the actions of private parties.”
See Brennan v.
Board of Trustees for Univ. of La. Sys., 691 So. 2d 324, 328
(La.App. 1 Cir. 3/27/97). 10
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the Parish’s motion to dismiss is hereby GRANTED in part (insofar
as it seeks to dismiss the plaintiff’s Section 1983 claim based on
the Fourth Amendment) and DENIED in part (insofar as it seeks to
dismiss the plaintiff’s Section 1983 claim based on the Fourteenth
Amendment, insofar as it seeks to dismiss the plaintiff’s state
The Parish also appears to seek dismissal of the plaintiff’s
state constitutional claims, but it does so in a conclusory manner.
Its failure to adequately brief the viability of Parks’s state
constitutional claims warrants denial in part of its motion,
law claims, an issue it inadequately briefed, and insofar as it
statement), 11 and MMSI’s motion to dismiss is hereby GRANTED.
New Orleans, Louisiana, February 22, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
The Parish also moves for summary judgment or for a more definite
statement. It fails to adequately support either request.
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