Barreras v. New Mexico Corrections Dept., 19907

Docket NºNo. 19907
Citation838 P.2d 983, 1992 NMSC 59, 114 N.M. 366
Case DateSeptember 04, 1992
CourtSupreme Court of New Mexico

Page 983

838 P.2d 983
114 N.M. 366, 7 Indiv.Empl.Rts.Cas. 1302
William BARRERAS, Edward Buxton and Mark Jaramillo,
No. 19907.
Supreme Court of New Mexico.
Sept. 4, 1992.

Page 984

[114 N.M. 367] E. Justin Pennington, Albuquerque, for plaintiffs-appellants.

Tom Udall, Atty. Gen., Maryanne Reilly, Asst. Atty. Gen., Santa Fe, for defendant-appellee.



At the time of the incidents giving rise to this action plaintiffs Barreras, Buxton, and Jaramillo were employed on a probationary basis as correctional officers at the Central New Mexico Correctional Facility (CNMCF). Plaintiffs were dismissed from their employment after testing positive for use of THC. This cause of action was brought against defendants The New Mexico Corrections Department (the Department), Michael Francke and O. Lane McCotter, then employed as Secretaries of Corrections of the State of New Mexico, and Derald Kerby, then warden at CNMCF.

Page 985

[114 N.M. 368] I.

Plaintiffs sought relief in district court alleging wrongful termination by defendants. Plaintiffs asserted claims based on breach of contract and deprivation of constitutional rights. In December 1987, defendants moved to dismiss plaintiffs' complaint. Subsequently, in June 1990, the trial court entered its order dismissing plaintiffs' claims directly alleging breach of contract, but denying defendants' motion in all other respects.

In February 1991, defendants moved for summary judgment. The trial court heard argument in March 1991, and granted defendants' motion for summary judgment, dismissing plaintiffs' complaint in its entirety. Plaintiffs appealed the trial court's grant of summary judgment to the court of appeals. On its own motion, in June 1991, the court of appeals transferred the case to this Court on the basis that one or more counts of the complaint sounded in contract.

Plaintiffs now raise three issues for our review: (1) whether the trial court erred in granting summary judgment on the court's finding that plaintiffs consented to urinalysis, thereby waiving their constitutional right to be secure from unreasonable search and seizure; (2) whether the trial court erred in finding that plaintiffs waived their right to due process of law by refusing to respond to allegations of drug use during questioning by the Department's fact-finding committee; and (3) whether the trial court erred in dismissing plaintiffs' complaint without adjudication of their rights under the State Personnel Act. We discuss and reject petitioners' contentions and affirm the decision of the trial court in its entirety.

As a preliminary matter, we note that findings of fact and conclusions of law by the trial court are not generally required on grants of summary judgment, and no findings of fact or conclusions of law were made in this case. SCRA 1986, 1-052(B)(1) (Repl.Pamp.1992). Plaintiffs frame the issues presented on appeal to this Court as if attacking specific findings made by the trial court, relying on informal statements made from the bench. Such statements cannot be relied upon as a formal decision from which error may be predicated. Ellis v. Parmer, 76 N.M. 626, 629, 417 P.2d 436, 439 (1966).

For this reason, we do not limit our discussion of plaintiffs' Fourth Amendment claim to a determination of whether the plaintiffs consented to urinalysis, thereby waiving their Fourth Amendment right. Nor do we limit our consideration of plaintiffs' due process claim to whether they waived their rights to due process by refusing to respond to questions from the fact-finding committee. We instead look to all of the facts presented in the case and focus on a determination of whether there are genuine issues of material fact relative to plaintiffs' claims and whether defendants were entitled to summary judgment as a matter of law. Gardner-Zemke Co. v. State, 109 N.M. 729, 732, 790 P.2d 1010, 1013 (1990).


Warden Kerby had received information that correctional officers were using marijuana and other drugs or alcohol. He also received information that these substances were possibly being brought into CNMCF and sold or given to inmates by some unnamed officers. In response to this information, on August 30, 1985, Warden Kerby implemented a search procedure whereby dog handlers and their trained drug detection dogs were employed for the purposes of detecting possession or recent use of drugs or alcohol by correctional facility employees.

Based upon the actions of the dogs and the report of the dog handler, each plaintiff was asked to give a urine sample for drug testing. The initial results for each plaintiff was positive for marijuana metabolites. These results were later confirmed by an independent laboratory.

Warden Kerby began a formal investigation into the matter and delivered letters to plaintiffs informing them that an investigation was pending concerning possible drug use. He also informed them that a fact-

Page 986

[114 N.M. 369] finding committee would be formed with regard to the allegations. In September 1985, plaintiffs met individually with the fact-finding committee appointed by the warden. Plaintiffs were represented by counsel and upon the advice of counsel invoked their Fifth Amendment right and refused to answer any questions about drugs, drug use, and possession of drugs or drug paraphernalia. These fact-finding meetings were recorded, and a transcript was made to reflect...

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