Tucker v. Dickey

• Citation: 613 F. Supp. 1124
• Decision Date: 23 July 1985
• Docket Number: No. 84-C-653-C.,84-C-653-C.
• Parties: Kirby TUCKER, Plaintiff, v. Walter DICKEY, Gordon Abrahamson, Dennis Nitschke, and James Sherer, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

613 F. Supp. 1124

Kirby TUCKER, Plaintiff, v. Walter DICKEY, Gordon Abrahamson, Dennis Nitschke, and James Sherer, Defendants.

No. 84-C-653-C.

United States District Court, W.D. Wisconsin.

July 23, 1985.

Kirby Tucker, pro se.

Sue Kanner, Madison, Wis., for defendants.

CRABB, Chief Judge.

This is a civil case in which plaintiff seeks monetary damages, injunctive and declaratory relief for alleged violations of his rights under the Fourth and Fourteenth Amendments. The case is before the court on the parties' cross motions for summary judgment. There is jurisdiction over plaintiff's constitutional claims under 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

Defendants have submitted a brief and proposed findings of fact and conclusions of law in support of their motion for summary judgment. In a letter dated March 9, 1985, plaintiff indicated that he was unable to put together a brief and proposed findings of fact without help. I construe this letter as a request for the appointment of counsel. Although I do not believe that appointment of counsel is necessary either to assist plaintiff in presenting his arguments on the cross motions for summary judgment or to aid the court in ruling on those motions, I will give consideration to plaintiff's request after resolving the motions.

From the uncontroverted proposed findings of fact submitted by defendants, I find that there is no dispute as to the following facts.

FACTS

At all material times, plaintiff was an inmate confined at Dodge Correctional Institution, Waupun, Wisconsin.

At all material times, defendants were employees of the State of Wisconsin, Department of Health and Social Services. Defendant Dickey was the Administrator of the Division of Corrections; defendant Abrahamson was the Superintendent of Dodge Correctional Institution; and defendants Nitschke and Sherer were correctional officers at Dodge Correctional Institution.

On June 7, 1984, certain inmates at Dodge Correctional Institution were told to give urine samples in connection with a study being undertaken by the Division of Corrections. The purpose of the study was to determine whether illicit drugs were being used in Wisconsin correctional institutions and, if so, by how many inmates. The Division intended to use this information to assist it in dealing with the drug problem. The inmates participating in the study were chosen at random from a computer listing. Fifteen percent of the inmates confined in Wisconsin correctional institutions were selected to participate in the study. Defendant Dickey believed that in order to achieve reliable results and a truly random sample it was necessary for every inmate selected to participate.

Plaintiff was one of the inmates selected at random to provide a urine specimen. At approximately 5:00 a.m. on June 7, 1984, defendant Sherer entered plaintiff's cell, awakened him, and gave plaintiff a container and a photocopy of a statement from defendant Dickey. The statement read as follows:

Be advised and assured that the urine sample taken on 6-7 1984 at DCI is for research purposes and will be anonymous. No disciplinary or punitive action will be taken against any inmate because of the results obtained. /s/ Walter J. Dickey

Defendant Sherer told plaintiff that a urine sample would have to be supplied. Plaintiff refused to give a urine sample, and defendant Sherer threatened that if plaintiff refused to do so he would be given a conduct report for disobeying orders.

As a consequence of plaintiff's refusal to give a urine sample, he was issued a conduct report (No. 37928) charging him with violating Wis.Adm.Code § HSS 303.24, Disobeying Orders. On June 8, 1984, defendant Nitschke decided to treat the conduct report as a major offense. Defendant Nitschke indicated on the conduct report that treatment as a major offense was justified under Wis.Adm.Code § HSS 303.68(c). On June 8, 1984, plaintiff was given a copy of the conduct report and a "Notice of Major Disciplinary Hearing Rights and Waiver of Formal Hearing."

On June 18, 1984, a disciplinary hearing was held on the conduct report against plaintiff. At the hearing, plaintiff read a "Statement to Disciplinary Committee," in which he stated inter alia that defendant Sherer "informed me that I would have to give a urine sample" and that defendant Sherer "said that he would have to give me a ticket for not giving a urine sample because he had orders from the captain."¹ The disciplinary hearing committee members found plaintiff guilty of disobeying orders and sentenced him to "5 nights room confinement." The disciplinary committee gave as its reason for its finding of guilt that plaintiff "acknowledged that he refused to give a urine sample as told by the officer."

Plaintiff appealed the decision to defendant Abrahamson. In his appeal, plaintiff contended that it was improper for inmates to be ordered to provide urine samples for research purposes and that he had not been given a direct order. On June 25, 1984, defendant Abrahamson affirmed the finding of guilt and the disposition.

In a letter dated June 12, 1984, to Governor Anthony S. Earl, plaintiff expressed his concerns regarding the propriety of taking urine samples from inmates for research purposes and the fact that his conduct report had been treated as a major offense. Plaintiff sent copies of the letter to defendants Dickey and Abrahamson. In a letter dated July 6, 1984, defendant Dickey responded to plaintiff's letter of June 12. Defendant Dickey advised plaintiff of the purpose of the urine samples, and that refusal of an inmate to provide a sample is considered a violation of Wis.Adm.Code § HSS 303.24 that creates a risk of serious disruption. In a letter dated July 8, 1984, plaintiff repeated to defendant Dickey the concerns expressed in his June 12 letter.

OPINION

Plaintiff was granted leave to proceed in forma pauperis on two claims: (1) the claim that plaintiff's right to privacy under the Fourth Amendment and as a matter of substantive due process was violated by the order to provide a urine sample and by the penalty he received for refusing to provide one; and (2) the claim that plaintiff's due process rights were violated at his disciplinary hearing because of the inadequacy of the hearing record and the insufficiency of the reasons given for treating the charge against plaintiff as a major offense. Defendants contend for various reasons that the alleged conduct did not violate any of plaintiff's constitutional rights, and that even if plaintiff's rights were violated, defendants are not liable. I turn first to the right of privacy issues.

Right of Privacy

Defendants contend that an order to a prisoner to submit to urinalysis does not infringe improperly on any interest protected by the Fourth Amendment or the substantive due process right to privacy, although they seem to concede that the taking of a urine sample is a "search" for Fourth Amendment purposes, just as the taking of a blood sample is a search. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Storms v. Coughlin, 600 F.Supp. 1214, 1217-18 (S.D.N.Y.1984).

Defendants contend, however, that as a prisoner plaintiff had no legitimate expectation of privacy in his person that would be protected by the Fourth Amendment. In making this argument, defendants rely on Hudson v. Palmer, ___ U.S. ___, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), in which the Supreme Court held that prisoners have no "legitimate" or "justifiable" or "reasonable" expectation of privacy in their prison cells. Id. 104 S.Ct. at 3199-3201. Reasoning that any "subjective expectation of privacy that a prisoner might have in his prison cells. Id. 104 S.Ct. at 3199-01. riding needs of security in the prison context, id. at 3200-01, the Court deferred to the need of prison officials for "unfettered access" to prison cells in order to prevent inmates from concealing weapons, drugs and other contraband. Id. at 3200. The Court concluded, "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." Id. at 3201.

Defendants suggest that it is logical to extend the holding of Hudson to the instant case, pointing out that the same concern with drug use that led to the urine sampling program in the instant case was identified as a serious concern in Hudson. Id. at 3200. However, neither Hudson nor any justifiable interpretation of the Fourth Amendment warrants such an extension. Hudson neither held nor implied that prisoners have no justifiable expectation of privacy in their persons, see id. at 3216 n. 31 (Stevens, J., dissenting); United States v. Caldwell, 750 F.2d 341, 343 n. 2 (5th Cir. 1984) (body cavity searches) (dicta); Storms v. Coughlin, 600 F.Supp. at 1223-24, and the rationale of the case does not justify a finding that plaintiff lacked any legitimate expectation of privacy in the instant case.

First, the relationship between institutional security and a study to determine the extent and nature of drug use in prisons is considerably less direct and immediate than the relationship between security and the search of an inmate's cell for contraband. Second, while there is an "inherent diminution" in the privacy of a person's surroundings when incarcerated, the "body undergoes no such fundamental change when incarcerated. The surroundings become less private; the body remains the same." Storms v. Coughlin, 600 F.Supp. at 1224. The Supreme Court has asserted repeatedly that "prisons are not beyond the reach of the Constitution." Hudson v. Palmer, 104 S.Ct. at 3198; see also Bell v. Wolfish, 441 U.S. 520 at 545, 99 S.Ct. 1861 at 1877, 60 L.Ed.2d 447 (1979); Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 129, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1979); Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974...