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POOLE v. STEPHENS

May 16, 1988

William Poole, Wilfred Lee Mungro, and PBA Local 105, an unincorporated labor organization, Plaintiffs,
v.
Robert E. Stephens, individually and as Superintendent of Northern State Prison; William Fauver, individually and in his capacity as Commissioner of the New Jersey Department of Corrections; Gary Hilton, individually and as Assistant Commissioner of the Department of Corrections; Thomas Cooper, individually and as Director of the Corrections Officer Training Academy; New Jersey Department of Corrections, a principal department of state government, Defendants



The opinion of the court was delivered by: BISSELL

 The assertions in the preliminary and jurisdictional statements of plaintiffs' Verified Complaint provide the setting for this matter:

 
I. PRELIMINARY STATEMENT
 
1. This action arises under the United States Constitution, particularly the Fourth, Ninth and Fourteenth Amendments, the New Jersey State Constitution, Article One, Paragraph Seven, and under the laws of the United States, particularly 42 U.S.C. § 1983, § 1985, and § 1988, which provide for remedies in federal court to redress the deprivation of the plaintiffs' rights to due process of law, freedom from unreasonable search and seizure, their rights to privacy and their entitlement to the equal protection of law.
 
2. Specifically, plaintiffs are corrections officers, corrections officer recruits and the labor organization representing both classes of individuals employed by the New Jersey Department of Corrections as corrections recruits and corrections officers. They contest the recently promulgated policy of defendants concerning "drug testing" of individuals holding such positions, which will become effective February 6, 1988. They submit that the policy violates their rights by requiring mandatory and random analysis of the urine of all corrections recruits without either probable cause or other individual suspicion; by refusing to provide reasons to those individuals about whom "individual reasonable suspicion" allegedly exists to justify production of a urine sample; and by promulgating a policy which violates their rights to privacy, due process and to equal protection of the law by being both highly intrusive and grossly underinclusive through its arbitrary failure to apply the same procedures to similarly situated persons.
 
II. JURISDICTION
 
3. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343, 2201 and 2202. The matter in controversy exceeds in value, exclusive of interest and costs, the sum of $ 10,000.00.

 For the purposes of this proceeding, the parties stipulated the following facts, to which this Court by footnote here added some additional related findings.

 2. Wilfred Lee Mungro is a senior corrections officer employed at Northern State Prison in Newark. He has been so employed since on or about 1982.

 3. PBA Local 105 is an unincorporated labor organization which is the collective bargaining agent for approximately 4,500 senior corrections officers and corrections officer recruits employed at state penal institutions throughout the State of New Jersey.

 4. Robert E. Stephens is the Superintendent of Northern State Prison, a maximum security penal institution located in Newark, New Jersey. In this capacity he is responsible for the overall operation, custody and control of inmates housed there and supervision of all corrections officers employed there, and for the enforcement of the Department of Corrections drug testing policy at Northern State Prison.

 5. William Fauver is the Commissioner of the New Jersey Department of Corrections. In this capacity he has overall responsibility for the operation of all state correctional institutions throughout New Jersey.

 6. Gary Hilton is an Assistant Commissioner of the Department of Corrections for adult institutions such as Northern State Prison. In this capacity he has substantial involvement in the preparation and promulgation of personnel policies affecting all corrections officers.

 7. Thomas Cooper is the Director of Corrections Officer Training Academy (COTA).

 8. The New Jersey Department of Corrections is a principal department of State Government with offices at Whittlesey Road in Trenton. It is charged by statute with the effective operation of all minimum, medium and maximum security penal institutions operated by the State of New Jersey.

 9. As of April 4, 1988, the total number of corrections officers within the Department of Corrections was 3,706.

 10. As of April 4, 1988, the total number of corrections officer recruits within the Department of Corrections was 783.

 11. As of April 4, 1988, the total number of non-custodial employees within the Department of Corrections was 3,611, 64 of whom are in the office of internal affairs.

 12. On or about January 7, 1988, William H. Fauver issued a memorandum policy addressed to all custody staff members entitled "Procedures For Drug Screening Permanently Appointed Corrections Officers and Supervisors, Internal Affairs Investigators and Supervisors and Corrections Officer Recruits", scheduled to become effective on or about February 6, 1988. *fn1"

 13. The drug testing policy of the Department of Corrections specifically applies to corrections officers and supervisors, Internal Affairs investigators and supervisors and corrections officer recruits.

 14. The following categories of employees are not included in the drug testing policy: superintendents and assistant superintendents of the institutions, institutional trade instructors, vocational or academic teachers, social workers, doctors, nurses.

 15. Corrections officer recruits are regularly appointed employees who hold that position up to 12 months before they assume the position of corrections officer. They are deemed law enforcement personnel.

 16. Corrections officer recruits are first assigned to an institution before receiving training at the Corrections Officer Training Academy.

 18. While at COTA, corrections officer recruits do not have any contact or involvement with inmates.

 19. All applicants for positions of corrections officer recruits must first pass a drug test at the time of their application for the position. A negative test result is a prerequisite to appointment as a corrections officer recruit.

 20. It is the intention of the Department of Corrections to test corrections officer recruits more than once while at the COTA, without any individualized reasonable suspicion to suspect drug usage.

 21. Effective January 4, 1988, the duration of the basic training course for corrections officers conducted at the Corrections Officer Training Academy has been expanded from six to eight weeks.

 22. The typical basic training class attending the Corrections Officer Training Academy consists of approximately 200 participants.

 23. Scientific procedures utilized under the drug testing policy of the Department of Corrections are calibrated to detect the presence of the following substances in urine: amphetamines, barbituates, cocaine, marijuana, opiates.

 24. The drug testing policy by its terms does not compel or forbid that the underlying factual basis for a drug testing order to a corrections officer be revealed at the time the order is issued. It is the present intention of the Department of Corrections not to reveal the underlying factual basis for a drug testing order at the time such order is issued.

 25. It is the present intention of the Department of Corrections to reveal the underlying factual basis for a drug testing order only to the extent it may be required in a disciplinary or grievance proceeding.

 26. A refusal by any officer to submit to a drug test will result in dismissal, subject to a hearing.

 27. A positive test result will result in dismissal subject to a hearing.

 28. The Department of Corrections will determine whether it will forward information regarding a positive test result to a criminal law enforcement agency on a case-by-case basis.

 29. When an officer is ordered to produce a urine sample for drug testing based on individualized reasonable suspicion, that officer will be placed on administrative leave with pay pending an analysis, including any necessary confirmatory analysis of the sample. If the urine sample tests positive for the presence of an illegal substance based on confirmatory testing procedures, subject to a "Loudermill" hearing, the officer will be suspended without pay pending the completion of a departmental disciplinary hearing for termination of employment. *fn2" 30. Since implementation of the Department's drug testing policy, as of March 31, 1988, there have been 11 orders to submit urine samples for drug testing based on individualized reasonable suspicion. These orders resulted in the following: Positive results 3 Negative results 1 Refused order to submit sample 6 Refused to report to duty and resigned n3 1

 31. Information supplied by the Employee Advisory Service of the New Jersey Department of Personnel indicates that during the current fiscal year there are a number of corrections officers enrolled in the drug rehabilitation program.

 On February 11, 1988, this Court issued a temporary restraining order precluding the random testing of recruits or corrections officers at COTA. Those restraints have continued to the present. All claims in this action against the defendant New Jersey Department of Corrections and any claims for money damages against all defendants were (upon defense motions) dismissed by this Court by Order dated April 5, 1988. A consolidated hearing for preliminary injunction and trial upon the merits was conducted on April 14 and 15, 1988. Fed. R. Civ. P. 65(a)(2).

 In addition to the stipulated facts, the Court makes the following findings of fact material to its decision in this case:

 33. More frequently than not, recruits are sent to COTA promptly after they are hired. Corrections Officer Samuel Love was sent there about two months after he was hired. Plaintiff William Poole, a recruit, began his term at COTA approximately one week after reporting for duty in January 1988. At COTA, recruits are not exposed to the inmate population, nor are they required to live there although they may if they choose to. Most recruits are in their early twenties, the age group where illicit drug use is the most prevalent. Because of their limited time in service, recruits at COTA have little in the way of employment history within the Department of Corrections, and are relatively unknown to the trainers, supervisors and administrators in the department. Drug dependency often develops in response to stress that the user is unable to cope with in other ways. The duties and environment to which a COTA recruit will soon be exposed as a corrections officer in a prison frequently generate levels of extreme frustration and stress for an officer. It is reasonable and necessary to identify (to the fullest ...


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