988 F.2d 649 (6th Cir. 1993), 92-3015, Feliciano v. City of Cleveland

Docket Nº:Raul FELICIANO, Jr., and Valeria Greathouse (92-3015/3096),
Citation:988 F.2d 649
Case Date:March 16, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 649

988 F.2d 649 (6th Cir. 1993)

Raul FELICIANO, Jr., and Valeria Greathouse (92-3015/3096),

Plaintiffs-Appellants,

Richard Rojas; Robert S. Beavers; Richard Zappala; and

Darryl T. Hood (92-3096), Plaintiffs-Appellants,

v.

CITY OF CLEVELAND, et al., Defendants-Appellees.

Nos. 92-3015, 92-3096.

United States Court of Appeals, Sixth Circuit

March 16, 1993

Argued Jan. 28, 1993.

Page 650

[Copyrighted Material Omitted]

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Edward A. Icove (argued and briefed), Edward A. Icove, Lustig, Icove & Lustig, Harold L. Williams (briefed), Legal Aid Soc. of Cleveland, Cleveland, OH, for plaintiffs-appellants.

Barbara R. Marburger, Asst. Director of Law (argued and briefed), City of Cleveland Law Dept., Cleveland, OH, for defendants-appellees.

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Before: KENNEDY and GUY, Circuit Judges; and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

Plaintiffs, a group of former cadets in the City of Cleveland's ("City") police academy, appeal from the district court's grant of summary judgment against them in this action under 42 U.S.C. § 1983 (1988). The plaintiffs contend that the City violated their Fourth and Fourteenth Amendment right to be free from unreasonable searches and seizures and that the City and several Cleveland police officers and employees violated their Fourteenth Amendment right to substantive due process when the defendants subjected the plaintiffs to a surprise drug test while they were cadets at the City's police academy. The plaintiffs tested positive for marijuana use and were forced to resign. The district court granted summary judgment for the defendants on all claims. For the reasons stated below, we AFFIRM the judgment of the district court.

I

In October, 1985, William Hanton, who was then the Chief of Police of Cleveland, received a tip that some unnamed cadets in the Cleveland police academy were using controlled substances, so he decided to administer a drug test to the entire class. Hanton looked for a laboratory to perform the test and decided to use SmithKline Bio-Science Laboratories in Beachwood, Ohio. On the morning of October 21, 1985, during the cadets' final week of training, the male cadets were told to go to the men's rest room and the female cadets were told to go to the women's rest room where they were given containers marked with their names and badge numbers. They were then told to urinate into the containers.

Because all of the cadets were being required to give their samples at the same time, some of the plaintiffs were forced to produce their samples while standing in the middle of the rest room while their superior officers watched. One plaintiff, Robert Beavers, wanted to wait and produce his sample in a stall, but a police officer told him to urinate while standing in front of the officer. When Beavers objected, the officer told him that he would be terminated unless he urinated within the officer's view immediately. J.A. at 339. During the test, the police officers collecting the samples allegedly made remarks such as "[w]e want to see what you have been doing this weekend" and "[e]verybody pees." J.A. at 235.

The urine samples were sent to SmithKline where they were screened for commonly abused drugs, including marijuana and cocaine. The laboratory tested each sample with the enzyme immunoassay test and the thin layer chromatogram test. Samples that tested positive for the presence of marijuana were re-tested with the radioactive immunoassay test to confirm the result. The samples provided by the plaintiffs tested positive for marijuana. The laboratory re-tested the plaintiffs' samples the next day using the same tests, and the samples again tested positive. 1

After Chief Hanton received the results of the drug test, he passed the information to Reginald Turner, the Public Safety Director, and recommended that Turner terminate the plaintiffs. J.A. at 181. On October 22, 1985, the plaintiffs met individually with a panel of three officers. The officers told them that the drug test revealed traces of marijuana in their urine. When given the opportunity to explain the presence of marijuana in their urine, some of the plaintiffs claimed that they had not smoked any marijuana themselves, but that they were exposed to marijuana smoke at parties the weekend before they were tested. Other plaintiffs admitted that they had smoked marijuana in the past but claimed that they had not smoked it recently. The

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panel of officers informed all of the plaintiffs that they could resign or submit a second urine sample and face probable termination by Safety Director Turner the next day.

After roll call on October 23, 1985, the plaintiffs were separated from the rest of the class. They were informed that Safety Director Turner had decided to fire them because they had violated their probationary period by smoking marijuana. However, they were told that they could resign instead of being fired. Given this choice, the plaintiffs all agreed to resign instead of waiting for termination. A police officer handed them previously prepared letters of resignation, and the plaintiffs signed them.

On November 13, 1985, two of the cadets, Richard Rojas and Raul Feliciano, filed a complaint in federal district court alleging that the City had a policy of conducting drug testing without standards or procedures. This policy, they alleged, caused violations of their rights under the Fourth, Fifth, and Fourteenth Amendments. The plaintiffs also alleged that their constitutional rights had been violated by several individual defendants. On October 17, 1986, Valeria Greathouse, Robert Beavers, Richard Zappala, and Darryl Hood, four more of the cadets who tested positive for marijuana use, filed a complaint in district court containing similar allegations. The two actions were consolidated. Named in the complaints as defendants are former Public Safety Director Turner, former Chief of Police Hanton, several police officers, several employees of the City, and the City itself.

On January 22, 1986, the individual defendants in their individual capacities filed a motion for summary judgment on the plaintiffs' claims on the ground of qualified immunity directed to the first action. 2 While this motion was pending, the City also filed a motion for summary judgment. In a marginal order dated April 11, 1986, the district court denied the individual defendants' motion for summary judgment. Following a timely appeal, this court, in an unpublished opinion dated April 10, 1987, reversed the district court and ordered it to grant summary judgment for the individual defendants on the Fourth and Fourteenth Amendment issue on the ground of qualified immunity. J.A. at 278. The Fourth, Fifth, and Fourteenth Amendment claims against the City remained as did the Fourteenth Amendment claims against the individual defendants in their individual capacities.

The plaintiffs then moved for summary judgment on their Fourth and Fourteenth Amendment claim against the City. In Feliciano v. City of Cleveland, 661 F.Supp. 578 (N.D.Ohio 1987) ("Feliciano I"), the district court granted the plaintiffs' motion for summary judgment against the City and, pursuant to this court's prior unpublished opinion, granted summary judgment for the individual defendants on the Fourth and Fourteenth Amendment claim on the ground of qualified immunity. The Fourteenth Amendment claims against the City and the individual defendants in their individual capacities still remained. On December 14, 1989, however, in light of two Supreme Court decisions handed down after Feliciano I was decided, the district court vacated Feliciano I in an unpublished order.

After the district court vacated Feliciano I, the parties moved for summary judgment on all counts. On November 26, 1991, the district court granted summary judgment for the defendants on all counts. The court held that the drug testing was an unreasonable search because there were no regulations governing the manner in which the urinalysis was conducted. Applying the test established by the Supreme Court in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), it held that the manner in which the test was conducted was unduly intrusive and oppressive. However, it concluded that the City was not liable for damages under the Fourth

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and Fourteenth Amendments because a final policymaker for the City had not instituted the drug test, and therefore, the City itself had not committed the constitutional tort. The court again, consistent with the unpublished opinion of this court, granted summary judgment for the individual defendants on the Fourth and Fourteenth Amendment claim on the ground of qualified immunity. Turning to the plaintiffs' Fourteenth Amendment claims, the court concluded that the plaintiffs had not been denied their rights to equal protection or procedural or substantive due process. The district court accordingly granted summary judgment for the defendants as to these claims. The plaintiffs then perfected this timely appeal to this court contending only that the district court erred in finding that the City was not liable on the Fourth and Fourteenth Amendment claim and that neither the City nor the individual defendants were liable under the substantive due process component of the Fourteenth Amendment.

II

This court reviews the grant of summary judgment de novo. Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229 (6th Cir.1990). "Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. If a reasonable jury could not find that the nonmoving party is entitled to a verdict then there is no genuine issue for trial and summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, ...

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