Lucero v. Gunter

17 F.3d 1347, 1994 WL 61441
CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 2, 1994
DocketNo. 93-1324
StatusPublished
Cited by44 cases

This text of 17 F.3d 1347 (Lucero v. Gunter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lucero v. Gunter, 17 F.3d 1347, 1994 WL 61441 (10th Cir. 1994).

Opinion

BALDOCK, Circuit Judge.

Plaintiff Anthony Lucero, appearing pro se, appeals the district court’s dismissal of some issues and grant of summary judgment as to the remaining issues in his civil rights complaint. 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291.

Plaintiff is an inmate at the Limón Correctional Facility, which is part of the Colorado Department of Corrections (“DOC”). On October 22, 1992, DOC officials asked Plaintiff to submit to a urinalysis for drug testing. In response, Plaintiff asked whether he was under criminal investigation and asked to speak with his attorney before producing a urine sample. The prison officials denied the request and insisted that Plaintiff submit to a urinalysis. Plaintiff refused to comply.

DOC officials subsequently charged Plaintiff with “disobeying a lawful order” and served Plaintiff with a notice of charges on November 4, 1992 at 5:15 p.m. A disciplinary hearing was originally scheduled for November 5, 1992 at 3:45 p.m.; however, the hearing was rescheduled for November 20, 1992, in order to provide Plaintiff with twen[1349]*1349ty-four hours notice of the charges filed against him as required by prison policy and to afford Plaintiff the opportunity to consult an attorney. At the November 20, 1992 disciplinary hearing, DOC officials found Plaintiff guilty of disobeying a lawful order and ordered Plaintiff to serve ten days in punitive segregation and assessed eighteen days loss of good time credits.

On February 3, 1993, Plaintiff filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 in district court. Count I of the complaint alleged that prison officials violated Plaintiffs Fourth, Fifth, and Sixth Amendment rights when they requested that he submit to a urinalysis. Count II of the complaint alleged prison officials violated Plaintiffs due process rights by failing to provide Plaintiff with a notice of charges twenty-four hours prior to his disciplinary hearing. Defendants moved to dismiss Count I and moved for summary judgment as to Count II. The district court adopting the magistrate’s findings and recommendations, granted Defendants’ motions for dismissal and summary judgment, and this appeal followed.

I.

Plaintiff contends the district court erred in dismissing Count I of his complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The sufficiency of a complaint is a question of law which we review de novo. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). In reviewing the dismissal of a pro se litigant’s complaint under Fed. R.Civ.P. 12(b)(6), we liberally construe the plaintiffs pleadings, presume all of plaintiffs well-pleaded factual allegations are true, and view the allegations in the light most favorable to the plaintiff. Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir.1991). When a complaint alleges a constitutional claim under § 1983, the constitutional claim “should not be dismissed unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief.” Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (quoting Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988)), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990).

A;

Plaintiff first argues that prison officials’ requests that he submit to a urinalysis constituted an unreasonable search under the Fourth Amendment. Because Plaintiff did not submit to the urinalysis, we must first determine whether Plaintiffs Fourth Amendment rights were nevertheless implicated because he was punished for his refusal to submit to the urinalysis. Although no court has addressed this issue with regard to prisoners, several courts have held that a government employee may properly raise a Fourth Amendment challenge to an employer’s order to undergo a urine screen when adverse consequences follow if that order is not obeyed. See Jackson v. Gates, 975 F.2d 648, 653 (9th Cir.1992) (firing of public employee after his refusal to submit to urinalysis sufficient to maintain Fourth Amendment challenge to the test), cert. denied, — U.S. -, 113 S.Ct. 2996, 125 L.Ed.2d 690 (1993); Everett v. Napper, 833 F.2d 1507, 1511 (11th Cir.1987) (Fourth Amendment challenge properly raised when employee’s continued employment was contingent upon submission to a search); see. also Egloff v. New Jersey Air Nat’l Guard, 684 F.Supp. 1275, 1279 (D.N.J.1988) (Fourth Amendment challenge properly raised when refusal to submit to urine test would end plaintiffs’ tenure with the National Guard).

In the instant case, Plaintiff suffered adverse consequences by failing to submit to a urinalysis in that DOC officials charged Plaintiff with disobeying a lawful order and assessed punitive segregation and loss of good time credits. Because of these adverse consequences and in light of the government employee cases, we hold that Plaintiff may properly raise a Fourth Amendment challenge to the request for a urinalysis.

We must next determine whether the request that Plaintiff submit to a urinalysis violated Plaintiffs Fourth Amendment rights. A urinalysis constitutes a search for purposes of the Fourth Amendment and therefore must be conducted in a reasonable [1350]*1350manner. See Spence v. Farrier, 807 F.2d 753, 755 (8th Cir.1986); see also Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908 (1966) (holding blood testing for alcohol content a search). In determining whether a search of a prisoner is reasonable, we must “[balance] the significant and legitimate security interests of the institution against the privacy interests of the [prisoner],” Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 1885, 60 L.Ed.2d 447 (1979), and give prison administrators “wide-ranging deference in [their] adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 547, 99 S.Ct. at 1878.

The unauthorized use of narcotics in a detention center by inmates does pose a serious threat to prison officials’ ability to maintain institutional security. Cf. Block v. Rutherford, 468 U.S. 576, 588-89, 104 S.Ct. 3227, 3233-34, 82 L.Ed.2d 438 (1984) (indicating the unauthorized use of narcotics is a problem in many penal and detention centers).

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Bluebook (online)
17 F.3d 1347, 1994 WL 61441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucero-v-gunter-ca10-1994.