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December 19, 1984

Donald Storms, John D. Cramer, Richard Freggans, Joseph Clayborne, Plaintiffs
Thomas A. Coughlin III, James E. Sullivan, CO.O Brady, CO.O. Merritt, Unknown C.O.'S, Defendants

The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge:

 In an effort to control drug use among state prisoners, New York State prison officials recently instituted a program of daily tests for traces of narcotics and marijuana in the urine of prisoners assertedly selected at random from the whole prison population. The plaintiffs, four inmates at Ossining Correctional Facility, challenge this practice as violative of their Fourth, Fifth, and Fourteenth Amendment rights. They have asked for a preliminary injunction against its continuance. Defendants, various prison officials, move to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P.

 An evidentiary hearing was held on September 20, 1984, at which plaintiff Storms appeared both to testify and to represent the pro se plaintiffs. Also testifying was Correctional Officer Jerold Brady, who frequently administers the urinalyses at Ossining. The facts adduced at the hearing are summarized below.

 Concerned about high Levels of drug abuse at Ossining, officials began in December, 1983 a program of "random" urinalyses designed to detect and thereby deter inmate drug 뫇. The program was authorized by and carried out pursuant to Directive # 4937 of the New York State Department of Correctional Services. Prior to December, 1983, a prisoner's urine was tested for the presence of narcotics only if he was actually suspected of drug use. In December, however, prison officials announced a program of randomly testing each day a few prisoners who showed no signs of drug use. The officials apparently assumed that prisoners would be less likely to use drugs knowing that they might be so tested at any time.

 The number and identity of prisoners to be randomly tested is determined daily. Prisoners continued to be tested if they are actually suspected of drug use. Each day the testing officer gives first priority to the testing of these suspected inmates' urine. Once he has completed these tests, the Officer determines whether he has time to run some random tests and, if so, how many can be run. He then reports to the watch commander and informs him of the number of random tests which can be run. The watch commander chooses the particular prisoners to be tested by picking cards from a board in his office. As described by Office Brady, the board holds a group of cards, each of which lists the name of an inmate. Apparently all inmates are represented. Those inmates whose cards are picked off the board are ordered to report for urinalysis.

 Perhaps recognizing the potential for conscious or unconscious abuse in this method of selecting prisoners, prison officials are currently taking steps to design a computer program which will select prisoners on a truly random basis. This program was not yet in use at the time of the hearing, nor was its estimated time of introduction specified.

 Once the prisoners to be tested are selected, they are individually escorted to a large restroom in the hospital section of the prison. There is some dispute about the size of the restroom and its proximity to the hospital emergency room. In any event, there is no door on the restroom, and the entrance is so positioned that female hospital employees pass by with some regularity on hospital business. According to Officer Brady, before he collects a urine sample he clears the restroom of other occupants and takes the prisoner to a corner stall which cannot be seen from the door of the restroom. At least one prisoner has submitted evidence to the contrary, an unsworn statement contending that other prisoners are on occasion permitted to watch the process. Further, according to plaintiff Storms' testimony, prisoners are aware of the presence of women employees outside the restroom, although it is unclear whether the prisoners are actually in these employees' view.

 Once positioned in the stall, the prisoner is directed to urinate into a plastic bottle held by the officer. If the prisoner refuses to give urine, he is disciplined as though he had used drugs. If he is willing to give urine but unable to do so, he is given water to drink. If after three or four hours he is still unable to produce urine, he is sent for medical treatment. If a specimen is collected, the bottle is sealed, taken to the testing room, and refrigerated to await testing. The manufacturer of the testing machine recommends that urine samples which are not to be tested within one day be frozen. Officer Brady testified that this is standard practice, but plaintiff Clayborne has presented evidence that it is not always done, or at least was not always done in the past.

 The machine used for testing is known as the Syva EMIT ST drug detection system. Very little direct evidence bearing on the reliability of the machine was introduced at the hearing, but it has been suggested that the machine does not always produce accurate results. The testing itself is done by a correctional officer. Running the test is apparently a relatively simple process, and the testing officers are thoroughly trained. They also receive periodic refresher courses in testing from the machine's manufacturer.

 If the test returns a positive result, the testing officer gives the sample to a second officer, who runs a second test on the same machine. Only if the second test is positive is the prisoner subject to discipline. Once two positive results are obtained, a disciplinary hearing is held at which the prisoner may contest the results of the EMIT machine. Because urine sample is not preserved, however, the prisoner cannot obtain a retest should he wish to challenge the test results in this manner.

 Following the conclusion of the evidentiary hearing I denied the application for a preliminary injunction for reasons stated on the record and herein repeated. *fn1" Defendants now move to dismiss the complaint.

 Construed liberally, plaintiffs' complaint poses two substantial questions: first, whether this type of random testing violates the Fourth Amendment ban on unreasonable searches and, second, whether the imposition of disciplinary sanctions based solely on these test results, after the sample on which the test is based is thrown away, violates the plaintiffs' rights to due process. *fn2" In moving to dismiss, defendants contend that plaintiffs lack standing to assert some of the objections they raise to the testing procedures and that in any event the procedures are in full compliance with constitutional requirements.


 The parties are agreed that a urinalysis test constitutes a Fourth Amendment search. For this limited purpose it is indistinguishable from the blood test held to fall within the Fourth Amendment by Schmerber v. California, 384 U.S. 757, 767-768, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). Because the two "searches" both involve the forced extraction of bodily fluids -- granted, by different means -- the mode of analysis employed by the Court in Schmerber seems particularly instructive here.

 Defendant Schmerber was involved in an automobile accident. The police officer on the scent noticed that he displayed classic symptoms of alcohol intoxication, and after Schmerber had been hospitalized and treated the officer placed him under arrest and directed that he be tested for intoxication. Schmerber objected to the admission of the results of this test on grounds, inter alia, that the test violated his Fourth Amendment rights. The test required extraction of a small amount of blood, a process the Court characterized as involving, for most people, "virtually no risk, trauma, or pain." 384 U.S. at 771. The Court nevertheless differentiated it from the more traditional searches of clothing or possessions which may be freely conducted pursuant to a lawful arrest, holding that because of the test's greater intrusiveness, "[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid [searches involving intrusions beyond the body's surface] on the mere chance that desired evidence might be obtained." Id., at 769-770. The Court required a higher showing of cause -- "a clear indication that in fact such evidence will be found" -- before permitting the search. Id., at 770. In analyzing the reasonableness of the warrantless blood test, the Court considered the level of likelihood that intoxication would be found, the exigency created by the metabolism of blood alcohol, the reliability of the test performed, the defendant's response to the process of blood extraction, and the manner of blood extraction. Id., at 770-772. Finding that the defendant's manifest symptoms of intoxication created a strong likelihood of high blood alcohol levels, that exigency existed because blood alcohol levels decline rapidly following ingestion, that the test was reliable, produced no particular anxiety and violated no scruples of the defendant, and that the blood extraction was performed by a physician in an antiseptic environment, the Court affirmed the test's reasonableness. Id.

 I find urinalysis analogous to a blood test. Although it involves no forces penetration of body tissues, as does a blood test, it does involve the involuntary extraction of body fluids. In that sense, if not literally, it is an "intrusion beyond the body's surface." Schmerber, 384 U.S. at 769. Further, the "interests in human dignity and privacy," id., at 769-770, which concerned Justice Brennan in Schmerber are plainly implicated when an inmate is forced to perform in the presence of a prison guard what is ordinarily regarded as a private bodily function. In a way in which having blood extracted could never be, being forced under threat of punishment to urinate into a bottle held by another is purely and simply degrading. Thus, this type of search is entitled to at least the level of scrutiny given blood tests by Schmerber.

 That said, it is clear that because they are prison inmates these inmate plaintiffs cannot invoke the "clear indication that in fact . . . evidence will be found" standard of cause applied to the motorist in Schmerber. 384 U.S. at 770. In a series of cases culminating most recently in Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) and Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), the Supreme Court has indicated that the constitutional rights which would otherwise be accorded prisoners give way when in conflict with the security needs of the prison. In other words, although convicted prisoners do not park all constitutional protections at the prison gates, Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 129, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977), "[t]he fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights." Bell, supra, 441 U.S. at 546. One of these legitimate goals is, of course, maintaining order and discipline within the prison. Pell v. Procunier, 417 U.S. 817, 823, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974). Therefore, prison administrators must be accorded "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain ...

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