Feliciano v. City of Cleveland

• Citation: 661 F. Supp. 578
• Decision Date: 12 June 1987
• Docket Number: Civ. A. C85-3356.
• Parties: Raul FELICIANO, Jr., et al. Plaintiffs, v. CITY OF CLEVELAND, et al. Defendants.
• Court: U.S. District Court — Northern District of Ohio

661 F. Supp. 578

Raul FELICIANO, Jr., et al. Plaintiffs, v. CITY OF CLEVELAND, et al. Defendants.

Civ. A. C85-3356.

United States District Court, N.D. Ohio, E.D.

June 12, 1987.

Brian Schorr and Edward A. Icove, Lustig, Icove & Lustig, Cleveland, Ohio, for plaintiffs.

Irving Berger, Asst. Director of Law, Robert M. Wolff, Chief Asst. Director of Law, Cleveland, Ohio, for defendants.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

Plaintiffs Raul Feliciano, Jr. and Richard Rojas filed this action on November 13, 1985, after resigning from the cadet class of the City of Cleveland Police Department. Their lawsuit challenges the constitutionality of the drug testing by urinalysis administered during their last week of peace officer training, which they maintain violated their rights under the fourth, fifth and fourteenth amendments to the United States Constitution. Named as defendants are former Safety Director Reginald M. Turner and former Chief of Police William T. Hanton, along with subordinates who allegedly performed the drug testing under their supervision or control, Sergeant Lloyd Bratz, Sergeant William Bartley, Lieutenant Glen Groudel, and Sergeant Ronald James (together, "the individual defendants"), and the City of Cleveland ("the City").

On April 28, 1986, the City of Cleveland filed a motion for summary judgment on the merits of this action. It was superceded by defendants' supplemental motion for summary judgment, which was filed on August 13, 1986 and joined by the individual defendants. Plaintiffs' deadline for responding to the supplemental summary judgment motion was extended while they sought the requisite discovery. By its Order of November 12, 1986, this Court approved the parties' agreement to postpone further discovery (and by logical extension plaintiffs' response to defendants' summary judgment motion on claims other than the fourth amendment) until this Court could rule upon plaintiffs' motion for partial summary judgment on their fourth amendment claims. Plaintiffs' motion for partial summary judgment was filed on December 12, 1986. These cross-motions for summary judgment on plaintiffs' fourth amendment claims are now before this Court, as well as the individual defendants' supplemental motion for dismissal or summary judgment, filed April 16, 1987.

For the reasons set forth below, plaintiffs' motion for partial summary judgment is granted against the City, and defendants' motion for summary judgment on the fourth amendment claims is denied. The individual defendants' supplemental motion for dismissal on the basis of qualified immunity is granted with respect to fourth amendment claims and deferred with respect to plaintiffs' other claims.

Jurisdiction is present pursuant to 28 U.S.C. § 1343(3) (1982) and 28 U.S.C. §§ 2201 and 2202 (1982).

I. FACTS

The facts of relevance to the motions before this Court are not in dispute. During the week of October 7, 1985, then Chief of Police Hanton received a tip that current members of the police academy were known to use narcotics. Deposition of William T. Hanton ("Hanton dep."), at 4-5. Because no names of implicated cadets were mentioned, Hanton decided that the entire class should be tested for drug abuse. Hanton testimony before Civil Service Commission ("Hanton CSC"), at 36-37. A testing plan was developed by Hanton and the medical bureau, Hanton Dep., at 8-9, and Hanton decided to conduct the first surprise drug test of police cadets in Cleveland. Hanton CSC, at 38. When Hanton made his decision with respect to testing, he had no reasonable suspicion of drug use directed at any particular member of the class, including Feliciano and Rojas. Id. at 37; Answer, ¶ 7.

During the morning of Monday, October 21, 1985, all cadets were required to produce urine samples. Answer, ¶ 7. At that time, plaintiffs were beginning their final week of training, and they had already satisfactorily passed a physical examination. Answer, ¶ 6. The cadets were directed to go to a restroom row-by-row from their classroom. Sgt. Bratz informed them that they were undergoing additional medical screening. Deposition of Raul Feliciano, Jr. ("Feliciano dep."), at 18-20. However, the persons administering the test wore guns, which was unusual at the academy. Feliciano affidavit of November 12, 1986, at ¶ 3; Rojas affidavit of November 12, 1986, at ¶ 5. The cadets were provided containers labeled with their names and badge numbers and instructed to produce a urine sample. Id. at 21-22; deposition of Richard Rojas ("Rojas dep."), at 16. Feliciano produced a sample in a toilet stall. Feliciano dep., at 25. Because all stalls were occupied when Rojas reached the restroom, he was forced to produce his sample in the open at a urinal, where he was watched by Sgt. Bratz and another person. Rojas dep., at 16. He was unable to urinate despite "forcing" himself until forty-five minutes had elapsed. Id. at 17.

When a sample was obtained, it was returned to a box with other samples. Feliciano dep., at 25; Rojas dep., at 17. The cadets gathered in a lounge until everyone had produced a sample. Rojas dep., at 18. Sgt. Bratz entered the lounge and indicated that he did not know what was happening with respect to the sample collection. When everyone had finished, the cadets returned to the classroom. Id.

The cadets' urine samples were sent to Smith Kline Miles Laboratory in Beachwood, Ohio, where they were screened for the most commonly abused drugs, including marijuana and cocaine. Karin Rash testimony before Civil Service Commission ("Rash CSC"), at 7. The samples provided by Rojas and Feliciano tested positive for marijuana. Rash CSC, at 12. Their samples were retested the next day, with the same results. Rash CSC, at 13.

On October 22, 1985, Feliciano and Rojas were separately interviewed by a panel of three officers. Feliciano dep., at 26; Rojas dep., at 19. Each was told that traces of marijuana had been found in his urine. Feliciano testimony before Civil Service Commission ("Feliciano CSC"), at 31-32; Rojas testimony before Civil Service Commission ("Rojas CSC"), at 6. Both plaintiffs maintained that they had been present at parties the prior weekend at which marijuana had been smoked, but that they had not smoked it themselves. Feliciano dep., at 28; Rojas dep., at 21. The panel informed Feliciano and Rojas that they had the options of resigning or facing termination by Safety Director Turner the next day. Feliciano CSC, at 34; Rojas CSC, at 6, 14-15.

After roll-call on October 23, 1985, several cadets were separated from those in the classroom. At about 2:30 p.m., Chief of Police Hanton, accompanied by other officers, told these cadets that at 4:00 p.m. they would be terminated for violating their probation period. Rojas CSC, at 7-8; Hanton CSC, at 3-7. After Hanton and the other officers left, Sgt. James brought letters of resignation, which he indicated could be submitted by the cadets to be terminated. Rojas CSC, at 8; Feliciano CSC, at 29. Feliciano and Rojas signed these resignation letters. Rojas CSC, at 9; Feliciano CSC, at 29. After a hearing, the Civil Service Commission determined that Feliciano and Rojas' resignations were voluntary and not coerced.

II. STANDARDS FOR SUMMARY JUDGMENT

Fed.R.Civ.P. 56(c) governs summary judgment motions and provides:

The judgment sought 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....

The nature of materials properly presented in a summary judgment pleading is set forth in Fed.R.Civ.P. 56(e):

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In reviewing summary judgment motions, this Court must view the evidence in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Hasan v. CleveTrust Realty Investors, Inc., 729 F.2d 372 (6th Cir.1984). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil trials the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the non-moving party is entitled to a verdict." Id. 106 S.Ct. at 2512. Although "the mere existence of a scintilla of evidence in support of the non-movant's position will be insufficient" to defeat a summary judgment motion, the Court is not precluded from denying a summary judgment motion where it...