Unpublished Disposition, 885 F.2d 875 (9th Cir. 1986)

MEMORANDUM^*

An inmate at the Oregon State Penitentiary appeals the district court's summary judgment in favor of various prison officials in an action he brings under 42 U.S.C. § 1983. His complaint alleges that the officials deprived him of his constitutional rights and violated Oregon Administrative Rules in administering a random urinalysis test and in imposing discipline upon him following a positive test result. We affirm.

FACTS AND PRIOR PROCEEDINGS

Oregon State Penitentiary ("OSP") officials ("appellees") subjected inmate McClure ("appellant") to a random urinalysis on March 13, 1986. Appellees tested the sample using the EMIT (Enzyme Multiple Immunoassay Test). Because the test was positive for THC,¹  officials issued a misconduct report charging McClure with violating Oregon Administrative Rules that forbid the use of narcotics and require compliance with prison orders. Rule 7(c), Or.Admin.R. 291-105-015(7) (c); Rule 10, Or.Admin.R. 291-105-015(10).² 

For various reasons, McClure's hearing on the alleged Rule violations did not take place for more than six and one-half months after the issuance of the misconduct report. The hearing was to commence on March 25, 1986, only to be continued by reason of a temporary restraining order issued by an Oregon state circuit court. The hearing resumed on September 11, 1986, but was continued again, this time for the purpose of allowing further investigation of certain questions that McClure proposed to ask during the hearing. The hearing eventually concluded on September 30, 1986.

Hearings officer Santos, one of appellees, found that McClure had violated Rule 7(c) prohibiting inmates' use of narcotics in state prisons³  and recommended that appellant be ordered to pay restitution of $4.35 for the cost of administering the urinalysis. McClure timely appealed the hearing officer's findings and recommendations to OSP Superintendent Maass, the other appellee, who approved the hearing officer's recommended sanction and denied the appeal.

McClure thereafter filed this action against Santos and Maass seeking money damages and injunctive and declaratory relief. The complaint alleges that appellees violated McClure's fourth and fourteenth amendment rights and certain state administrative rules.

Pursuant to federal statute, the action was assigned to a federal magistrate, 28 U.S.C. § 636(b) (1) (b); Fed. R. Civ. P. 72(b), who recommended that summary judgment be granted in favor of appellees. Over McClure's objections, the district court adopted the magistrate's findings and recommendation and granted appellees' motion for summary judgment.

McClure alleges that appellees' delay in holding his disciplinary hearing violated his due process rights.

Prisoners are entitled to the protections of the due process clause, and therefore may not be deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In spite of their retention of due process rights, prisoners who are the object of prison disciplinary proceedings are not afforded the full panoply of rights due a defendant in a criminal prosecution. See id. at 556.

In addition, the Court has "consistently refused to recognize more than the most basic liberty interests in prisoners." Hewitt v. Helms, 459 U.S. 460, 467 (1983). Nonetheless, a state may create a liberty interest through its enactment of certain laws. Id. at 470-71 (inmate acquired protected liberty interest in remaining in general prison population in light of state statutes and regulations).

Oregon has adopted administrative rules that entitle inmates to a hearing upon the issuance of a misconduct report. Or.Admin.R. 291-105-056(1) (a). The rules provide that such hearing shall only be postponed for good cause and reasonable periods of time. Or.Admin.R. 291-105-021(4).

Even assuming that these regulations serve to create a constitutionally protected liberty interest, in order for McClure to state a due process claim he must allege actual prejudice. United States v. Loud Hawk, 816 F.2d 1323, 1324-25 (9th Cir. 1987) (citing United States v. Lovasco, 431 U.S. 783, 789 (1977); United States v. Marion, 404 U.S. 307, 326 (1971)). Here, the only prejudice that McClure complains he suffered as a result of the delay is his experiencing "undue anxiety, fear of future confinement, and fear of future program and custody decisions." Indeed, he fails to show how the delay might have harmed his chances at the disciplinary hearing; he has pointed to no actual prejudice. Accordingly, as the magistrate properly found, McClure has failed to state a due process violation.

McClure alleges that appellees' refusal to allow him to call all of the witnesses he requested at his disciplinary hearing violated his due process rights.

An inmate does not have an unrestricted right to present evidence or to have all the witnesses he requests called at a disciplinary hearing. Wolff, 418 U.S. at 566. The inmate's right to call witnesses is "subject to the 'mutual accommodation between institutional needs and objectives and the provisions of the Constitution...' " Ponte v. Real, 471 U.S. 491, 495 (1985) (quoting Baxter v. Palmigiano, 425 U.S. 308, 321 (1976)). Should prison officials refuse to call a witness, they should explain their decision, but may do so either at the hearing, or "later." Id. at 497. In addition, " [p]rison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority." Wolff, 418 U.S. at 566. Given these limitations, the Court has conceded that a constitutional challenge to a prison official's refusal to allow an inmate to call witnesses may rarely, if ever, be successful. Ponte, 471 U.S. at 499.

Here, the hearings officer discussed with McClure the 53 questions he proposed to ask of six witnesses at his hearing and concluded that some questions were answered by the record and that some were duplicative of other questions. Indeed, the hearings officer granted a recess so that the questions that could not be answered at the hearing would be able to be answered satisfactorily. Thus, the status of this record is sufficient to comply with the due process requirements set forth in Wolff and Ponte.

McClure alleges that the hearings officer's finding that McClure violated Rule 7(c) runs afoul of due process because of insufficient evidence.

To comport with the due process clause, a prison disciplinary hearings officer's findings must be supported by "some evidence in the record." Superintendent v. Hill, 472 U.S. 445, 454 (1985). If any evidence exists in the record that could support the hearings officer's conclusion, this standard is satisfied. Id. at 455; Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).

Here, the hearings officer relied upon McClure's positive THC result to support his decision. Testing positive to an EMIT clearly seems to constitute at least "some evidence" under Hill and Cato and thus to satisfy McClure's due process rights. See Harmon v. Auger, 768 F.2d 270, 276 (8th Cir. 1985) (EMIT test results form sufficient basis for disciplinary action); Jensen v. Lick, 589 F. Supp. 35, 39 (D.N.D. 1984) (imposing sanctions on prisoner based upon unconfirmed EMIT is proper); Petition of Johnston, 109 Wash. 493, 745 P.2d 864, 868 (1987) (concluding that single positive EMIT result constitutes "some evidence" under evidentiary standard of Hill) .

These cases to the contrary notwithstanding, McClure argues that an unconfirmed EMIT urinalysis test is an unreliable indicator of drug use and thus cannot be considered in determining whether "some evidence" exists. See Cato, 824 F.2d at 705 (evidence that forms basis of prison disciplinary action must have "some indicia of reliability"). According to McClure, because the unconfirmed EMIT positive test result is the primary piece of evidence on which the hearings officer relied to find a Rule 7(c) violation, and because it is unreliable, the evidence in the record is insufficient to support the officer's finding.

The courts are divided whether or not a single EMIT test is relatively accurate and reliable. See Lovvorn v. Chattanooga, 846 F.2d 1539, 1540 (6th Cir. 1988) (court noting that EMIT test is, on average, about 95 percent accurate); Harmon, 768 F.2d at 276 (EMIT test results are "about 95 percent accurate"); Jensen, 589 F. Supp. at 38 (court stating that Center for Disease Control in Atlanta has determined EMIT to be 97-99 percent accurate); but see United States v. Bentley, 875 F.2d 1114, 1123 & n. 9 (5th Cir. 1989) (Williams, C.J., dissenting) (asserting that EMIT test produced "inconclusive results that require confirmation by other testing methods"); Higgs v. Wilson, 616 F. Supp. 226, 233 (D.C.Ky.1985) (enjoining state corrections officials from disciplining inmates on basis of unconfirmed EMIT test result); Wykoff v. Resig, 613 F. Supp. 1504, 1512 (D.C.Ind.1985) (court holding that to afford prisoners due process, all future positive EMIT results should be confirmed by a second test). We cannot on the record of this case make a determination that the state hearing officer's findings are incorrect. We do not approve or disapprove the test given to the plaintiff. McClure has not presented any specific evidence of unreliability as to the EMIT test in general or as to the OSP EMIT testing procedures or his own test in particular. Thus, we conclude that on the record before us, McClure's positive THC result is enough to satisfy due process under "some evidence" standard of Hill.

McClure alleges that appellees violated his fourth and fourteenth amendment right to be free from unreasonable search and seizure when they subjected him to a random urinalysis test.

Compelled urinalysis constitutes a search or seizure within the meaning of the fourth amendment. Skinner v. Railway Labor Executives Ass'n, 109 S. Ct. 1402, 1413 (1989) (Court stating its agreement with unanimous conclusion of federal circuit courts that urinalyses "must be deemed searches under the Fourth Amendment"); Spence v. Farrier, 807 F.2d 753, 755 (8th Cir. 1986). As a result, to avoid the proscription of the fourth amendment, urinalyses must be conducted in a reasonable manner. National Treasury Employees Union v. von Raab, 109 S. Ct. 1384, 1390 (1989); Skinner, 109 S. Ct. at 1414.

Reasonableness in the context of prison administration requires " [b]alancing the significant and legitimate security interests of the institution against the privacy interests of the inmates." Bell v. Wolfish, 441 U.S. 520, 560 (1979).

At least one circuit has conducted the Bell balancing test in response to inmates' challenge to random urinalysis and concluded that, upon a determination that the procedures for selecting the inmates to be tested are "truly random," such testing is not unreasonable. Spence, 807 F.2d at 755; see also McDonell v. Hunter, 809 F.2d 1302, 1307 (8th Cir. 1987) (court ruling that systematic random selection of prison employees who have regular contact with prisoners for urinalysis is not unreasonable in part because "the institutional interest in prison security is a central one"); but see Storms v. Coughlin, 600 F. Supp. 1214, 1223 (S.D.N.Y. 1984) (procedure for selecting inmates for testing not "truly random" and thus unreasonable where prison official selected cards representing inmates off a bulletin board without cognition).

Here, there is no evidence to suggest that the procedure used to select McClure as a test participant was anything but random. Relying on Spence then, and the tenor of recent Supreme Court jurisprudence concerning urinalyses, see, e.g., National Treasury Employees Union, 109 S. Ct. 1384 (suspicionless urine testing of Customs Service employees as precondition to applying for promotion to certain positions held reasonable); Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402 (searches arising from Federal Railway Administration regulation requiring urine testing for employees involved in certain train accidents and authorizing urine testing for employees who violate certain safety rules are reasonable despite absence of individualized suspicion), the random EMIT test to which appellees subjected McClure does not constitute an unreasonable search under the fourth and fourteenth amendments.

McClure alleges that appellees violated Oregon Administrative Rules in conducting his prison disciplinary hearing.

First, McClure alleges that appellees violated an Oregon Administrative Rule which provides that a hearing may be postponed for good cause. Or.Admin.R. 291-105-057(11) (h). Good cause includes, but is not limited to, preparation of defense, illness or unavailability of the inmate, gathering of additional evidence, avoiding interference with an ongoing police investigation, or pending prosecution. Id. The hearings officer is required to state the reason for postponement on the recorD. Or. Admin.R. 291-105-064(3).

Here, the record indicates that the hearings officer postponed McClure's hearing to allow for resolution of a pending state court action. Under the action, the Oregon Department of Corrections was subject to a temporary restraining order which prohibited it from "according positive EMIT test results conclusive or irrefutable weight at disciplinary hearings based on such test results." Davis v. Tombs, No. 86-C-10234 (Marion County Circuit Court Order Feb. 4, 1986). Since the EMIT test was involved in McClure's case, we conclude that the delay was for "good cause."

Next, McClure alleges that appellees violated an Oregon Administrative Rule which provides that witnesses may be excluded from a prison disciplinary hearing upon a "finding that their testifying ... would not assist in the resolution of the disciplinary action." Or.Admin.R. 291-105-057(11) (f). This rule was not violated either because the hearings officer methodically went through McClure's proposed questions on the record and concluded that they were answered satisfactorily.

Finally, McClure alleges that appellees violated Oregon Administrative Rules which mandate that decisions of hearings officers and reviewing officers be supported by sufficient evidence. Or.Admin.R. 291-105-046(3), 291-105-057(12) (a). As discussed supra, the record contains sufficient evidence to support the hearings officer's finding.

McClure failed to establish that he was prejudiced by the six and one-half month delay in holding his disciplinary hearing. Prison officials furnished a reasonable explanation on the record for not allowing McClure to call all of his witnesses. Because the record contains virtually no evidence that EMIT tests in general are or McClure's EMIT test in particular was unreliable, the single, unconfirmed EMIT result showing THC use constitutes sufficient evidence under the due process clause to support appellees' finding. Because the record contains no evidence to suggest that OSP selected McClure for urinalysis in any fashion other than randomly, its EMIT testing of McClure did not violate his fourth and fourteenth amendment right to be free from unreasonable searches and seizures. Finally, McClure has failed to establish that prison officials violated any Oregon Administrative Rules in administering discipline to him.

AFFIRMED.