Jensen v. Lick, Civ. No. A1-83-113.

• Decision Date: 09 January 1984
• Docket Number: Civ. No. A1-83-113.
• Parties: Herbert O. JENSEN, Plaintiff, v. Alton LICK, Winston Satran, Charlene Seifert, Cordell Stromme, Dennis Jacobs, Roy Nagel, Larry Parkos, Marvin Ximmer, Doris Mattson, Defendants.
• Court: U.S. District Court — District of South Dakota

589 F. Supp. 35

Herbert O. JENSEN, Plaintiff, v. Alton LICK, Winston Satran, Charlene Seifert, Cordell Stromme, Dennis Jacobs, Roy Nagel, Larry Parkos, Marvin Ximmer, Doris Mattson, Defendants.

Civ. No. A1-83-113.

United States District Court, D. North Dakota, Southwestern Division.

January 9, 1984.

Herbert O. Jensen, pro se.

Robert O. Wefald, Atty. Gen., State of N.D., Bismarck, N.D., for defendants.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

This is the third order on the fourteenth proceeding this petitioner has brought on his own behalf since his conviction on February 19, 1976, and the imposition of two concurrent sentences of twenty years for second degree murder and ten years as a dangerous offender. (N.D.Crim.Nos. 613 and 614.)

In this action, brought under 42 U.S.C. § 1983, plaintiff complains that the Warden of the North Dakota State Penitentiary has instituted an unlawful urine screening program for the detection of the presence of marijuana in urine samples taken from the inmates. The program is outlined as follows:

1. Inmates are selected at random, except where an inmate is suspected of drug usage, he may be screened more frequently.

2. The inmate is notified the night prior to the taking of the sample, and the notice has the status of an order.

3. Refusal to give a sample, or a positive test result, is a serious offense affecting the good time benefits allowed the inmate under N.D.C.C. Chapter 12-54.1.

4. Urine samples are tested at the North Dakota State Laboratory.

5. A sample which shows a positive level of over 20 nanograms per milliliter of urine results in the filing of an incident report, and reference over for disciplinary action.

6. The penalty for the infraction is the loss of 20 to 40 days earned good time as a first offense, and an additional period of disciplinary segregation if it is a second offense.

7. Like periods are imposed for failure to give a sample.

The plaintiff complains that the urinalysis test used has the trade name "Emit" and is produced by the Syva Company of Palo Alto, California and is inaccurate in that a small percentage of false-positive tests may occur. The penitentiary officials use no alternative testing program as a check.

The defendants admit to using no alternative program but deny that the "Emit" test is inaccurate, and assert that in any event, repeated testing of urine which has produced positive results, negates any possibility of error.

Plaintiff has moved for an order compelling discovery (Docket No. 15) and for default judgment for failure to answer interrogatories (Docket No. 27). Both of these motions are denied, and in fact were disposed of in the order dated November 17, 1983 (Docket No. 35).

Plaintiff has also moved repeatedly for leave to file supplemental briefs to raise issues. The court grants those motions as a matter of course as to those supplemental briefs which have been filed up to but not after December 12, 1983.

Defendants have moved for dismissal under Rule 12, Fed.R.Civ.P., or in the alternative for summary judgment of dismissal under Rule 56(c), Fed.R.Civ.P.

Plaintiff asserts in his complaint that he received a written order to furnish a urine sample and failed to do so. So the plaintiff, in fact, has never received an inaccurate "Emit" test result. The punishment meeted out to him was for a failure to obey an order. And that decision was reversed by an in-house administrative review for a failure of the prison officials to follow the penitentiary's standards of fairness, including notice.

Our first problem is, must this action be dismissed under Rule 12, Fed.R. Civ.P., for a failure to state a claim upon which relief can be granted, i.e., has plaintiff declared an injury which gives him standing to sue? He has not been injured by an inaccurate "Emit' test result. He has simply refused to take the test and the punishment for disobeying an order has been reversed due to defendants' failure to follow the appropriate administrative procedures. However he is still subject to the requirement that he comply with the testing program. The question of when a litigant has "standing" must be determined "individualistically, with an eye both to the specific circumstances of particular cases and to the court's eagerness to reach the issues tendered for decision." 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3531 at 184 (1975).

In this instance we may concentrate on the first element. While the plaintiff devotes his facts and arguments to the issue of the reliability of the "Emit" testing process, he must, on a day by day basis, obey the rules of selection for testing, unless the entire procedure is thrown out. So this litigant has a concern which impacts pragmatically on him, to determine the lawfulness of the testing requirement. His claim does meet the fundamental demand of adversary litigation, i.e., the case presents to the plaintiff "the prospect of immediate tangible benefit to the litigant." Id. at 224. Moreover, the nexus requirement described in the Supreme Court's Valley Forge Christian College decision¹ is also met because of the threatened injury to the plaintiff. By a random selection, the plaintiff could be selected at any time to take the test. The plaintiff may also be asked to take the test based on any guard's suspicion that the plaintiff is using drugs. Finally, if the plaintiff receives a favorable decision, he will no longer be subject to either taking the test or being punished for refusing to take it.

I conclude the plaintiff does have standing.

The urinalysis program which the plaintiff resists is as follows:

Urinalysis Program

All inmates incarcerated at the N.D. State Penitentiary and State Farm will be required to submit to a urine testing program. The purpose of this program is to help provide a secure, humane, safe, and clean environment for all inmates and staff. No inmate is allowed to use any type of drug that was not prescribed by the medical staff of the institution.

1. Inmates are selected on a random basis.

2. Inmates are tested at irregular intervals.

3. Inmates who are suspected of drug usage may be screened more frequently.

4. Urine sample are produced under direct observation by an officer.

5. Before an inmate is moved to the Honor Dorm, he will be required to submit to a urine test.

6. Refusals are handled as positive findings. Positive analysis results in an inmate being referred to the Adjustment Committee. sic

7. Urine samples will be tested at the North Dakota State Laboratory.

Inmates selected to submit a urine sample will be notified the night prior to the sample being taken. In the event an inmate refuses to submit the urine sample, an incident report will be written for "Refusing to Obey an Order". sic The action taken will be the same as if the test was found to be positive which is loss of four months' sic good time. If it is the second offense, the Adjustment Committee's recommendation will be loss of four months' sic good time and a period of time in Disciplinary Segregation.

Anyone refusing to submit to a urine sample or found with a positive test is considered to have committed a serious offense under the good time provisions of Chapter 12-54.1 of the North Dakota Century Code.

Warning notices will be forwarded to inmates with test results under the 20 n1/mg.

North Dakota State Penitentiary and State Farm Inmate Handbook at 56-57.

N.D.C.C. § 12-54.1-02 provides for forfeiture of earned good time for violations of the rules. See Matz v. Satran, 313 N.W.2d 740 (1981).

Turning now to the Rule 56 motion, the defendants assert that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material facts, and that the defendants are entitled to a judgment of dismissal as a matter of law since neither of the constitutional standards of the 14th amendment (due process) or 8th Amendment (cruel and unusual punishment) are violated.

Before turning to the facts...