Parks v. Terrebonne Parish Consolidated Government et al

Filing 57

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

CIVIL ACTION

v.

NO. 16-15466

TERREBONNE PARISH
CONSOLIDATED GOVERNMENT, ET AL.

SECTION "F"

ORDER AND REASONS
Before

the

Court

are

two

motions:

(1)

Multi-Management

Services, Inc.’s motion to dismiss for failure to state a claim;
and (2) Terrebonne Parish Consolidated Government’s motion to
dismiss

under

Rule

12(b)

for

failure

to

state

a

claim,

or

alternatively, motion for summary judgment, or for a more definite
statement.

For the reasons that follow, MMSI’s motion is GRANTED,

and the Parish’s motion is GRANTED in part and DENIED in part.
Background
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.
Terry

Allen

Parks

began

working

for

Terrebonne

Parish

Consolidated Government on April 5, 1982 and, after a probationary
1

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
Parish.

During his 33 years of employment, Parks had only one

verbal reprimand.

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
guidelines

set

out

by

the

United

Transportation at 49 CFR Part 40.”

States

Department

of

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.
administered

and

the

sample

collected

by

The drug test was
Multi-Management

Services, Inc.; the sample was tested by Alere Toxicology Services,

1

The factual summary is drawn from the complaint.
2

Inc.; and it was reviewed by Brian N. Heinen, a Professional
Medical Corporation.

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.
Parks

claims

that

the

positive

test

result

was

due

to

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
Parks

initial

the

tamper-proof

labels,

which

facilitated accurate identification of the sample.

3

would

have

Despite these

procedural

deficiencies,

it

is

alleged,

MMSI

forwarded

the

specimen to Alere, the laboratory used by the Parish, for testing.
Parks
procedures

alleges
for

that

testing:

Alere
Alere

also

violated

violated

the

the

relevant

Department

of

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.

Heinen, Parks

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.
from

Alere,

it

Upon confirmation of the test results received
is

alleged

that

Heinen

violated

the

relevant

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.

4

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.
After

three

of

the

defendants

filed

plaintiff amended his complaint. 2

motions

to

dismiss,

the

Parks alleges that, for urine

testing to be reasonable under the Fourth Amendment, the test must
be conducted in accordance with minimum procedural requirements
and standards.

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
insurance

premium

benefits,

lost

long-term

and

short-term

The Court denied as moot the motions to dismiss the initial
complaint.
2

5

disability benefits, and lost deferred retirement benefits; he
also

claims

that

he

has

suffered

mental

anguish,

emotional

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.

I.
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."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
"[T]he

pleading

'detailed

factual

standard

Rule

8

allegations,'

announces

but

it

does

demands

not
more

require
than

an

unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

6

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).”
footnote omitted).

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
reasonable

inference

misconduct alleged.”

that

the

defendant

is

liable

for

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
unlawfully.”).

This is a “context-specific task that requires the

reviewing court to draw on its judicial experience and common
7

sense.”

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
judicial notice.”

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)).
II.
A.
Parks bring this civil rights action under 42 U.S.C. § 1983
for

alleged

violations

of

his

constitutional

rights.

Parks

contends that a urinalysis administered pursuant to the Parish’s
random drug testing program subjected him to an unreasonable search
8

and seizure and that his resulting constructive discharge in
response to the positive test result deprived him of property
without

due

process

of

law,

in

violation

of

the

Fourth

and

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
law.

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.
B.
Section
authority

to

interference

1983,

which

enforce
with

was

the

federal

enacted

pursuant

Fourteenth
rights

under

to

Congress’s

Amendment,

prohibits

color

Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
9

of

state

law.

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;

secured

by

the

(2)

that occurred under color of state law, and

(3)

U.S.

was caused by a state actor.

Victoria W. V. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)(citation
omitted).
C.
Parks alleges that, as a safety-sensitive employee of the
Parish, he was subject to random drug tests in accordance with
Parish policy.

Parks alleges that the drug test was procedurally

defective and therefore “done and taken” in violation of the Fourth
Amendment

of

the

U.S.

Constitution

constitutional equivalent.

10

and

the

Louisiana

The

Fourth

seizures.”

Amendment

forbids

U.S. CONST. amend. IV.

“unreasonable

searches

and

Fourth Amendment implications

of compelled urine testing in the workplace are settled.

Drug

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)).

To

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).

Id. (quoting

Accordingly, “where a Fourth Amendment

intrusion serves special government needs[], it is necessary to
balance

the

individual’s

privacy

expectations

against

the

Government’s interests to determine whether it is impractical to
require a warrant or some level of individualized suspicion in the
particular context.”

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

11

testing policy of safety sensitive employees like Parks. 3

In

Skinner, the Supreme Court held that public safety is a special,
non-law-enforcement

need

justifying

drug

testing

of

safety-

sensitive railroad employees as a way of enforcing restrictions on
workplace drug and alcohol use.
Skinner

endorsed

reasonableness

an

of

approach

drug

Skinner, 489 U.S. at 620-21.

in

testing

which

courts

programs

of

examining

the

safety-sensitive

employees must balance the employees’ privacy interests against
the government’s need to test without individualized suspicion.
Id. at 624.
concluded

Considering the privacy interest, the Supreme Court

that

the

regulations

were

employees’

privacy

unobserved

not

a

severe

expectations

urine

tests

privacy
were

required

significantly

the

because

intrusion

by

the

reduced

by

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.

Id.

Accordingly, applying this

framework, a warrantless drug test serving special needs may be
reasonable

under

the

Fourth

Parks alleges that he is
Instrumentation Technician.
3

Amendment

a
12

if,

upon

safety-sensitive

conducting

employee,

a

an

balancing test, the Court finds that the government’s interest in
conducting the search outweighs the individual’s privacy interest.
See id.
D.
Parks alleges that the Parish forced him to retire when his
drug

test

indicated

positive

for

marijuana,

and

that

this

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.”
U.S.

CONST.

amend

XIV,

§

1.

“[C]ertain

public

employment

situations may endow an employee with a legally cognizable property
interest.”

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."
To

state

a

Section

Id.
1983

claim

based

on

termination

of

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
13

F.3d 152, 155-56 (5th Cir. 1996).

“In Louisiana, a permanent

classified

has

civil

service

interest in [his] job.”

employee

a

protected

property

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.”
976,

980

(5th

Cir.

Fowler v. Carrollton Pub. Library, 799 F.2d
1986)(citing

Cleveland

Loudermill, 470 U.S. 532, 542 (1985)).

Bd.

of

Educ.

V.

The Supreme Court has

explained:
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
explanation
of
the
employer’s
evidence,
and
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
predeprivation

procedures

constitutional rights.”
allege

that

he

was

“unquestionably

violated

Fowler, 799 F.2d at 980.

fired,

but

constructively discharged.
14

he

does

allege

his

Parks does not
that

he

was

“To

show

constructive

discharge,

an

employee

must

offer

evidence that the employer made the employee’s working conditions
so intolerable that a reasonable employee would feel compelled to
resign.”

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
termination.”

Fowler, 799 F.2d at 981.

Notably, “[c]onstructive

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).
E.
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).

Municipalities are

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).

Larpenter, 369
Imposition of

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

15

municipality.

See Bowen v. Watkins, 669 F.2d 979, 989 (5th Cir.

1982)(citation omitted).

“[A] local government may not be sued

under § 1983 for an injury inflicted solely by its employees or
agents.

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
to

the

municipality

through

some

official

custom

or

policy;

“isolated unconstitutional actions by municipal employees will
almost

never

trigger

liability.”

See

Piotrowski

v.

City

of

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)
(citation omitted).
4

16

the force of law.” See Connick v. Thompson, 131 S.Ct. 1350, 1359
(2011)(citations

omitted)(“These

are

‘action[s]

municipality is actually responsible.’”).

for

which

the

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
authority; or
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
banc).
“Municipal liability for civil rights violations under § 1983
is based on causation, rather than respondeat superior.”

Bolton

v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008)(citation
omitted).

“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.’”

17

Id.

(citation omitted).

“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
culpably.”

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.”

Id.

(“A plaintiff must demonstrate that a municipal decision reflects
deliberate

indifference

particular

constitutional

decision.”).

to
or

the

risk

statutory

that

a

right

violation
will

of

follow

a

the

“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)).
III.
The Parish seeks to dismiss the plaintiff’s claims against it
on

the

grounds

that

Parks

fails

to

allege

a

constitutional

violation and fails to attribute any alleged violation to one of

18

its

policies

liability.

sufficient

to

warrant

imposition

of

municipal

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.
A.

Section 1983 Claim Based on Fourth Amendment Violation

1.

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.

The Parish

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
Amendment.

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
there

is

no

allegation

unconstitutional
Government’s

policy.

Personnel

that

the

The

search

Terrebonne

Policy

19

Manual

was

was

based

Parish

on

some

Consolidated

attached

to

the

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
who
occupy
safety-sensitive
or
security-sensitive
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
and regulations.

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
safety

sensitive

permissible.

employees

like

him,

is

constitutionally

Nevertheless, he complains that his drug test was

“performed haphazardly, without adherence to federal and state
regulations.”

In other words, Parks complains that his particular

drug test was not conducted in accordance with the Department of
Transportation regulations.

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
allege

that

his

constitutional

injury

is

unconstitutional Parish policy or custom.
Parish’s

policy

regarding

“Drug

Testing

attributable

to

an

To the contrary, the
Procedure”

mandates

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.
5

20

compliance with the Department of Transportation regulations; it
states:

“All Terrebonne Parish drug screens shall be submitted in

accordance

with

the

guidelines

set

out

by

the

Department of Transportation at 49 CFR Part 40.”

United

States

See TP Personnel

Policy Manual, Section 13, J-1.

Because Parks fails to allege

that

or

the

Parish

has

a

policy

custom

that

violated

his

constitutional rights, he has not stated a plausible Monell claim
based on a Fourth Amendment violation.
2.

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
sample.

In particular, he alleges at paragraphs 12 and 13 of his

amended complaint:
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
21

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.
Despite these
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
omitted).

To

determine

whether

private

action

is

“fairly

attributable to the State[,]” the Supreme Court has used at least
four tests.

Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th

Cir. 2005).

“It is unclear whether these tests ‘are actually

different

in

operation

or

[are]

simply

different

ways

of

characterizing the necessarily fact-bound inquiry,’” the Fifth
Circuit has observed.
When

tasked

with

Doe, 831 F.3d at 314 (citation omitted).

determining

whether
22

an

action

is

fairly

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

The nexus

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
itself.

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
use

tamper

deficient.

proof

labels,

rendering

the

test

procedurally

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).

Cornish, 402

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.
6

23

involvement in, let alone control over, the drug testing procedures
of

which

Parks

complains.

Furthermore,

Parks’s

conclusory

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.

See Priester

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).

24

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.
appears

that

Parks’s

theory

underlying

his

Instead, it

alleged

Fourth

Amendment violation is that drug tests that fail to conform with
federal

(and

state)

safety

regulations

Amendment as a matter of law.

violate

the

Fourth

He offers no case literature to

support his novel theory.
Parks

argues

that

“[t]he

purpose

of

the

drug

testing

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

25

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.

The

regulations themselves provide that “[t]he purpose ... is to
establish programs designed to help prevent accidents and injuries
resulting

from

the

misuse

of

alcohol

or

use

of

substances by drivers of commercial motor vehicles.”
382.101.

controlled
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
of action.

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
Cir. 2006).
Constitutional challenges to drug tests typically involve
alleged

violations

of

collection procedures.
Transp.,

566

F.3d

privacy,

targeting

overly

invasive

See, e.g., BNSF Ry. Co. v. U.S. Dept. of

200

(D.C.

Cir.

2009)(finding

that

partial

disrobing requirement that was part of regulation requiring direct
observation

urine

tests

represented

reasonable

procedure

for

situations posing heightened risk of cheating, despite contention
that it amounted to a strip search); Kennedy v. City of New York,
No.

94-2886,

1995

WL

326563,
26

at

*4

(S.D.N.Y.

Jun.

1,

1995)(considering constitutional violation where plaintiff was
“allegedly ordered to urinate in his hospital room, in front of
friends and relatives, including police officers”).

Here, Parks

does not allege any such concerns regarding his privacy.
his

challenge

focuses

on

seemingly

incompetent

or

Rather,
faulty

procedures in administering his drug test; he does not challenge
the reasonableness or scope of the test called for by Parish
policy.

At

best,

his

allegations

suggest

negligence

in

administering the test on the part of MMSI and the other private
entity defendants.

Parks fails to allege a Fourth Amendment

violation.
B.

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
7

27

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
safeguards,

standards,

and

federal

regulations.

The

Parish

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
sufficient

to

support

a

finding

that

he

was

constructively

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
marijuana. 8

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.
Moreover,
according to Parish policy, Parks could be fired regardless of
compliance with the procedures Parks alleges MMSI violated.
8

The Personnel Policy Manual states:
28

property interest in his employment without due process.

He

alleges that he was forced to retire, with no predeprivation
hearing, solely as a result of a positive drug test that failed to
follow protocol.
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
process.”

Gilbert v. Homar, 520 U.S. 924, 928-29 (1997)(citations

omitted).

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.

DISCIPLINARY ACTION

...
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.
9

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
29

that he has such a property interest, dismissal is not appropriate.
If Parks was a permanent classified civil service employee and if
he

was

terminated,

predeprivation

the

Parish’s

procedures

constitutional rights.”

failure

to

“unquestionably

provide

him

violated

with
his

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
argument.

Parks alleges that he was constructively discharged and

includes facts that, if true, plausibly support such a claim.

As

outlined above, a constructive discharge occurs when the employer
places the employee “between the Scylla of voluntary resignation
and the Charybdis of forced termination.”
981.

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.
30

Accordingly,

he

has

stated

a

Section

1983

claim

based

on

termination of employment without being afforded procedural due
process.

See McDonald v. City of Corinth, Tex., 102 F.3d 152,

155-56 (5th Cir. 1996).
C.
MMSI

also

seeks

State law Claims

to

dismiss

the

plaintiff’s

Louisiana

constitutional claims on the ground that such claims also require
action

by

a

state

actor.

Indeed,

the

plaintiff’s

state

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,
without prejudice.
10

31

law claims, an issue it inadequately briefed, and insofar as it
alternatively

seeks

summary

judgment

or

a

more

definite

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.
11

32