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August 12, 1992

O. RODRIGUEZ, Plaintiff, -vs- THOMAS A. COUGHLIN, III, Commissioner, Department of Correctional Services; SALLY B. JOHNSON, Superintendent, Orleans Correctional Facility; LIEUTENANT RONALD PIKULA, SERGEANT KUZMINSKI, J. McGILLICUDDY, WRIGHT, EDWARD LUCZAK, EMRY JAMALE, MICHAEL PUNCH, and MOONEY, Correction Officers, Orleans Correctional Facility, Defendants.


The opinion of the court was delivered by: JOHN T. CURTIN

On March 9, 1988, plaintiff O. Rodriguez, while an inmate at the Orleans Correctional Facility, filed this complaint pro se, pursuant to 42 U.S.C. ยง 1983, alleging that his constitutional rights were violated by being subjected to urinalysis testing and a search of his prison cell. This court appointed counsel to represent plaintiff, and plaintiff filed an amended complaint containing nine causes of action. Item 28. On December 6, 1989, defendants moved to dismiss plaintiff's causes of action numbered one through six, and nine. At oral argument, plaintiff's attorney agreed to withdraw the ninth cause of action. The court directed defendants to submit a memorandum concerning the effect of plaintiff's release from prison on his request for injunctive relief.

 On June 11, 1990, defendants filed the requested memorandum, and also moved to dismiss the complaint in its entirety for failure to state a cause of action. After oral argument on September 11, 1990, the court dismissed plaintiff's application for injunctive relief, and deferred the decision on defendants' motion to dismiss until after further discovery.

 Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposes the motion.


 On March 9, 1988, plaintiff was ordered to the Orleans Correctional Facility Hospital and required to provide a urine sample under the supervision of a corrections officer. Plaintiff initially refused and asked to call a lawyer. Officer McGillicuddy told plaintiff that if he refused he would go to the "box" for six months or more and would lose good time. When plaintiff continued to refuse, Officer McGillicuddy telephoned Sergeant Kuzminski, and then told plaintiff that the Sergeant said plaintiff had three hours to urinate if he wanted to avoid this disciplinary action. Plaintiff then urinated into a bottle in the bathroom in view of Officer McGillicuddy. No one else was present in the bathroom, but others were in an adjacent corridor and plaintiff does not know if they were able to observe.

 After plaintiff supplied the urine specimen, officer McGillicuddy informed him that Sergeant Kuzminski and Lieutenant Pikula "or somebody" had chosen his "chips" and it was plaintiff's turn to have a urine test. Plaintiff's "chip" had not actually been picked, however--another inmate's had--but plaintiff was tested. Item 76 at 3. Plaintiff's urinalysis test result was negative. Item 10, Ex. A; see also Tr. at 161. He was not charged with using drugs, was not locked in his cell, nor was he deprived of any privileges. Tr. at 56-60.

 Nine months later, plaintiff was tested again. On December 2, 1988, officer Jamale ordered plaintiff to report to the hospital. Another officer told him to urinate in a bottle, and plaintiff did so. The test result for the second urinalysis was also negative. Item 76 at 3. Plaintiff was not disciplined or locked in his cell or deprived of any privileges.

 On January 12, 1989, plaintiff's cubicle was searched twice. Several items were seized as contraband, although most were returned. Item 76 at 4. Following a Tier II disciplinary hearing, an altered hot pot was confiscated, and plaintiff was given a reprimand. Tr. at 98-99. Plaintiff was not confined to his cell and did not lose any privileges. Nevertheless, plaintiff alleges that during the search a copy of the initial complaint in this case was removed and not returned by prison authorities. Tr. at 102. Plaintiff admits, however, that a "week or so" later he retrieved an extra copy from another inmate. Id. at 104-06.

 Plaintiff alleges in his first six causes of action that each urine test constituted: (1) An unreasonable search and seizure, in violation of the Fourth Amendment; (2) a due process deprivation, in violation of the Fifth and Fourteenth Amendments; and (3) cruel and unusual punishment, in violation of the Eighth Amendment. Item 28. Regarding the cell search, plaintiff alleges in the remaining two causes of action that his Sixth and Fourteenth Amendment rights of access to the courts were violated by "spurious" misbehavior reports written to "harass" the plaintiff, Item 28 at 10, and by the removal and failure to return one of his legal documents. Id. at 11-12. Plaintiff also alleges that the removal of his legal document violated his First Amendment right to communicate with his attorney. His demand for injunctive relief having been dismissed earlier by the court, plaintiff continues to seek punitive and actual damages, and attorney's fees.

 Defendants argue in their summary judgment motion that neither the urinalysis nor the cell-search allegations state a cognizable claim, and that in any event qualified immunity should bar plaintiff's urinalysis claims.


 Rule 56(c) of the Federal Rules of Civil Procedure directs that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In deciding whether summary judgment is appropriate, a court must look at the record in the light most favorable to the party opposing the motion, drawing all inferences most favorable to that party. Harlow v. Fitzgerald, 457 U.S. 800, 816, 73 L. Ed. 2d 396, 102 S. Ct. 2727 n.26 (1981). The moving party's summary judgment burden may be discharged by showing that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The opposing party must evidence specific facts which are both significantly probative and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. ...

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