United States District Court, E.D. Kentucky, Central Division, at Lexington
DAVID C. EATON, Plaintiff,
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, et al., Defendants.
MEMORANDUM OPINION & ORDER
JOSEPH M. HOOD, District Judge.
This matter is before the Court upon Defendants' Motion for Summary Judgment [DE 91]. Plaintiff seeks leave to file a response on paper and for leave to file his Response out of time, citing an unspecified technical failure that prevented his counsel from filing his Response electronically or in a timely fashion [DE 92]. The Court will grant his motion for leave to file and will consider his tendered Response [DE 92-6]. The Court being adequately advised, no reply in support of Defendant's Motion for Summary Judgment [DE 91] is necessary. Rather, the Motion for Summary Judgment will be granted, and Plaintiff's claims shall be dismissed.
The background in this case has been set forth several times in the course of litigation, and the Court declines to repeat it here, instead incorporating those portions of previous orders by reference as it is necessary to make sense of the motion before it. [ See, e.g., DE 22, 77, and 86.] In short, Plaintiff filed a Verified Petition for Custody, Timesharing, and Child Support in the Fayette Circuit Court, against the mother of his child, in August 2005. [DE 14-3]. As part of that proceeding, Plaintiff was ordered to complete drug testing at the Community Alternative Program (hereinafter, "CAP") as a condition of visitation. [DE 14-6; DE 68-3 at 2]. CAP is part of the Lexington-Fayette Urban County Government (hereinafter, "LFUCG") Division of Community Corrections and offers a variety of services, including drug and alcohol testing ordered by the courts and other agencies. [DE 14-9 at ¶¶ 2-3]. Plaintiff completed testing at CAP on a number of occasions between January 6, 2006, and July 21, 2007, providing a urine sample for testing at the facility. On a number of occasions, his test results were positive for drugs, which impacted his opportunities for custody and visitation with his child as a result of the Fayette Family Court's rulings.
Plaintiff filed a Complaint in this Court on July 9, 2007, seeking injunctive and declaratory relief and a claim under 42 U.S.C. § 1983 alleging that his Fourth Amendment rights were violated as a result of unconstitutional drug and alcohol testing at CAP. [DE 1; see also DE 22 (Memorandum Opinion and Order, dated September 12, 2008, dismissing claims for certain relief against Defendants)]. Plaintiff avers that his right to be free from unreasonable searches was violated by the testing policies and procedures in place at CAP because the handling and analysis of his urine specimens were inadequate to ensure the accuracy and reliability of the test results. Now, Defendants seek summary judgment, arguing that a portion of Plaintiff's claim is barred by the statute of limitations applicable to actions brought pursuant to 42 U.S.C. § 1983 and that Plaintiff's claim otherwise fails as a matter of law.
In support of their argument, Defendants have presented the policies and procedures with respect to the provision and handling of specimens at CAP that were in place at the time of Plaintiff's testing as an exhibit to the affidavit of Major Edye Dabnye, the Bureau Manager of Inmate Management, Division of Community Corrections of LFUCG, which includes CAP. The evidence demonstrates that a simple but, according to LFUCG, effective chain of custody begins at CAP with the documentation required of participants who appear for testing, from which labeling information is drawn and printed on labels which are, in turn, affixed to the specimen cup prior to testing. CAP also requires the use of an integrity seal, which bears the participant's identifying information written in his own hand, to safeguard the specimen provided until it is placed in a labeled test tube in which the urine is actually tested. Per the policies and procedures, the labeled and sealed urine specimens are then stored in the same locked room in which the drug and alcohol testing equipment is maintained, with access to limited personnel, until the urinalysis takes place in the EMIT® II Plus testing device by trained and certified personnel or, during an employee's training period, under the observation of trained and certified personnel.
CAP personnel have access to professional technical assistance regarding the equipment and testing and can consult with a toxicology professional if needed. Only positive test results, confirmed by a second EMIT® II Plus test per CAP policies and procedures, are reported to the court that has ordered or the agency that has requested testing. If desired, a testing participant may request that positive test results be sent to an independent laboratory for Gas Chromatography Mass. Spectrometry (GC/MS) confirmation testing at his expense, at which time the urine specimen would be sent to the outside laboratory in keeping with the policies and procedures for the transfer.
Defendant does not dispute these facts, except to argue that these policies and procedures are insufficient to secure his right to be free from unreasonable searches in violation of the Fourth Amendment. As set forth below, the Court disagrees with his assessment of the matter, and his claims shall be dismissed.
Summary judgment is appropriate when it is shown that "there is no genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(a). Although the evidence is viewed in the light most favorable to the non-moving party, in order to defeat a motion for summary judgment, the non-moving party must present evidence sufficient to create a genuine issue of material fact for trial. Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th Cir. 2002).
The "mere possibility of a factual dispute is not enough." Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, the non-moving party cannot merely rest on his pleadings. Id. "Mere conclusory and unsupported allegations, rooted in speculation, do not meet that burden." Bryant v. Commonwealth of Kentucky, 490 F.2d 1273, 1275 (6th Cir. 1974). And, "the Court's duty to view the facts in the light most favorable to the nonmovant does not require or permit the court to accept mere allegations that are not supported by factual evidence." Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009) (citing Leary v. Livingston Cnty., 528 F.3d 438, 443-44 (6th Cir. 2008)). Further, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Thus, the Court should determine "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict...." Mitchell v. Toledo Hosp., 964 F.2d 577, 581-82 (6th Cir. 1992) (quoting Anderson, 477 U.S. at 252); see also Policastro v. Nw. Airlines, Inc., 297 F.3d 535, 538 (6th Cir. 2002)("There must be evidence on which the jury could reasonably find for the non-movant") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
As an initial matter, the Court agrees with Defendants that Plaintiff's claims prior to July 9, 2006, are time-barred. The statute of limitations on claims pursuant to 42 U.S.C. § 1983 in Kentucky is the one year limitations period in K.R.S. § 413.140(1)(a). Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990); see also Harper v. Jackson, 293 Fed.App'x 389, 391, fn. 1 (6th Cir. 2008) (unpublished) (applying one year statute of limitations to claim of unlawful search and holding claim accrued on date of search). Plaintiff insists that the statute of limitations is tolled for all of his claims by virtue of the continuing violation doctrine. However, "[c]ourts have long distinguished continuing violations, which toll the applicable statutes of limitations, from repetitive discrete violations, which constitute independently actionable individual causes of action." Nat'l Parks Conservation Ass'n, Inc. v. Tennessee Valley Auth., 480 F.3d 410, 417 (6th Cir. 2007). Bowerman v. Int'l Union, United Aerospace and Agric. Implement Workers of Am. Local No. 12, 646 F.3d 360, 366 (6th Cir. 2011) ("discrete acts [which the plaintiffs were immediately aware] when they occurred... do not constitute a continuing violation.") Plaintiff filed his Complaint on July 9, 2007, and alleges ...