Dunn v. White, 88-2194

Citation880 F.2d 1188
Decision Date01 August 1989
Docket NumberNo. 88-2194,88-2194
PartiesTerry Darnell DUNN, Plaintiff-Appellant, v. Thomas WHITE, Warden; Charlie Arnold, Major; T. Bill Randall; Brad Payas, H.S.A.; Larry Meachum, Director, D.A.C., Oklahoma; Jim Burks, P.A., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Terry Darnell Dunn, pro se.

Robert H. Henry, Atty. Gen., and Sue Wycoff, Asst. Atty. Gen., Oklahoma City, Okl., for defendants-appellees.

Before MCKAY and ANDERSON, Circuit Judges, and BROWN, * District Judge.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R 34.1.9. The cause is therefore ordered submitted without oral argument.

Plaintiff appeals the district court's dismissal of his complaint filed pursuant to 42 U.S.C. Sec. 1983. Plaintiff alleged that prison officials assaulted him and threatened to place him in disciplinary segregation when he refused to submit to a blood test for acquired immune deficiency syndrome (AIDS). Plaintiff contended that by threatening him with disciplinary segregation, prison officials in effect forced him to submit to the blood test. Plaintiff argued that threatening him and testing his blood prior to a due process hearing violated his rights under the fourteenth amendment, and that his religious beliefs forbade his being tested for AIDS.

The district court referred plaintiff's pro se complaint to a United States magistrate, who recommended that the district court dismiss the complaint for failure to state a claim for a deprivation of plaintiff's constitutional rights. The magistrate reasoned that the prison could limit plaintiff's freedoms for legitimate penological purposes and that identifying AIDS carriers was such a purpose.

In his objection to the magistrate's report and recommendation, plaintiff argued that AIDS testing served no legitimate purpose, because after identifying carriers, the prison neither treated nor quarantined those prisoners. Plaintiff also contended that the Oklahoma statute requiring AIDS testing contained an exemption for prisoners with religious objections.

Because it concluded that plaintiff's objections to the magistrate's report were untimely, the district court refused to consider them. The district court adopted the magistrate's recommendation and dismissed plaintiff's complaint. We affirm.

"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 complaint, "[a]ll well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). In addition, we will take the allegations in plaintiff's objections to the magistrate's report as true. Although plaintiff's objections were filed in the district court beyond the ten-day limit, plaintiff mailed his objections from prison in a timely fashion. Cf. Houston v. Lack, --- U.S. ----, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (mailing date of prisoner's notice of appeal deemed filing date). On appeal, we will accordingly consider plaintiff's objections as allegations in support of his constitutional claims.

"When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate...." Neitzke v. Williams, --- U.S. ----, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). At the same time, however, "[a] constitutional claim under Sec. 1983 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." Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988) (citation omitted). "Moreover, pro se complaints, like the one involved here, are held 'to less stringent standards than formal pleadings drafted by lawyers.' " Id. (quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980) and Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)).

Plaintiff's factual allegations that he refused consent to a medical test on religious grounds, and was then forced to submit to the test, at least facially support claims under the first and fourth amendments, as incorporated into the fourteenth. In light of the liberal construction accorded pro se pleadings, we will analyze plaintiff's complaint under both amendments. See Haines, 404 U.S. at 520, 92 S.Ct. at 596. We will also address plaintiff's argument that he was entitled to a due process hearing prior to the blood test and the threat of disciplinary segregation.

I. FOURTH AMENDMENT

No court has yet decided whether a nonconsensual AIDS test violates a prisoner's right to be free from an unreasonable search. The Supreme Court, however, has addressed the fourth amendment rights of prisoners in other contexts. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court held that prisoners had no legitimate expectation of privacy in their prison cells, and accordingly had no interest against even an unreasonable search of their cells.

A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement."

Id. at 527-28, 104 S.Ct. at 3201 (quoting Bell v. Wolfish, 441 U.S. 520, 537, 99 S.Ct. 1861, 1873, 60 L.Ed.2d 447 (1979)).

Although the Supreme Court has thus foreclosed any fourth amendment challenge to the search of a prison cell, this court has recognized a qualitative difference between property searches and searches of a prisoner's person. The prisoner's privacy interest in the integrity of his own person is still preserved under Wolfish, 441 U.S. at 558, 99 S.Ct. at 1884, in which the Supreme Court applied traditional fourth amendment analysis to a constitutional challenge by prisoners to personal body searches.

In Wolfish, the Supreme Court assumed that prison inmates retain some measure of Fourth Amendment rights. Id. We do not believe that the Supreme Court's decision in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) in which the Court held that a prisoner has no reasonable expectation of privacy in his prison cell, eviscerates the requirement set forth in Wolfish that personal body searches of inmates must be reasonable under the circumstances. See Hudson, 468 U.S. at 555 n. 31, 104 S.Ct. at 3216 n. 31 (Stevens, J., dissenting).

Levoy v. Mills, 788 F.2d 1437, 1439, n. ** (10th Cir.1986); accord Spence v. Farrier, 807 F.2d 753 (8th Cir.1986) (applying traditional fourth amendment analysis to a prisoner's claim that urinalysis to detect drugs violated his right to be free from unreasonable searches).

The Supreme Court in Wolfish held that even assuming prisoners retained a privacy interest in their own persons, a post-visitation body cavity search nonetheless was not an unreasonable search under the fourth amendment. The Court emphasized that "preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of convicted prisoners." Wolfish, 441 U.S. at 546, 99 S.Ct. at 1878 (footnote omitted). "Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel.... Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, ... the practice must be evaluated in light of the central objective of prison administration, safeguarding institutional security." Id. at 547, 99 S.Ct. at 1878 (citations omitted). Thus, on issues of "internal order and discipline" or "institutional security," courts should accord "wide-ranging deference" to prison officials, unless there is "substantial evidence in the record to indicate the officials have exaggerated their response." Id. at 547-48, 99 S.Ct. at 1879 (citations and quotation omitted).

Within this framework, the Supreme Court in Wolfish addressed the fourth amendment claim.

In each case [the fourth amendment] requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Id. at 559, 99 S.Ct. at 1884 (citations omitted).

Although no court has addressed whether mandatory testing for AIDS violates the fourth amendment rights of prisoners, the courts have addressed the issue of prison drug tests. Drug testing in prison implicates concerns similar to those at issue in the case at bar. In Spence, 807 F.2d at 755, the Eighth Circuit considered whether random urinalysis for the presence of drugs violated a prisoner's fourth amendment rights. Balancing the security interests of the prison against the prisoner's privacy interest, the court concluded that the plague of unauthorized narcotics in prison justified the intrusion on the prisoner's already diminished privacy interest, so long as the testing was random. Id.; accord Storms v. Coughlin, 600 F.Supp. 1214, 1218-20 (S.D.N.Y.1984).

In contrast, in Berry v. District of Columbia, 833 F.2d 1031 (D.C.Cir.1987), the District of Columbia Circuit perceived a potential intrusion on the fourth amendment rights of pretrial detainees tested for drugs....

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