* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 12 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Craig Bryan Northington; David Montoya; and all other inmates similarly situated, Plaintiffs-Appellants, v. Robert Furlong, Warden; Richard Marr, Assistant Warden; Al Estep, Administrative Officer III; L. Nutter, Capt., Endre Samu, Lt., W. Sommers, Lt., AAHB Hearing Officers; G. Butler, Sgt., S. Bergman, Correctional Officers; Sgt. Hostetler, Correctional Officer; John Doe #1, Supervisor, Colorado Department of Corrections; Laurel J. Farrell, Drug Test Unit Supervisor; Cindy Silva-Burbach, Lab Technician, Colorado Department of Health; and all other persons presently unknown, Defendants-Appellees. No. 96-1260 (D.C. No. 95-B-1029) (D. Colo.)

ORDER AND JUDGMENT ***After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. - 2 - Before BRORBY , EBEL and HENRY , Circuit Judges. **

Plaintiffs Craig Bryan Northington and David Montoy a appeal from the district court’s grant of summary judgment in favorof Defendants, a number of prison officials at the Limon Correctional Facility (“LCF”) in Limon, Colorado. We have jurisdiction under 28 U.S.C. § 1291, and no w reverse in part and affirm in part. Background Between October 1, 1993, and April 15, 1995, prisonofficials asked Plaintiffs, who are prison inmates, to produce a nu mber of urine samples for drug testing. In some cases, Plaintiffs were unable, orunwilling, to do so. In these cases, Plaintiffs were charged with the Code of Pen al Discipline violation of Refusing to Obey a Lawful Order. In two other inst ances, the samples tested positive for drug use. Plaintiffs underwent discip linary hearings and were convicted of penal code violations. As a result of their convictions, their visiting privileges were temporarily suspended. They also l ost good time credit and were temporarily placed in punitive segregation.- 3 -

Northington and Montoya filed a pro se complaint al leging a variety of constitutional claims centering on the urine testin g and the resulting disciplinary charges. In substance, the plaintiffs alleged the testing was harassing, racially discriminatory, conducted in retaliation for prior lawsuits brought by the Plaintiffs against some of the defendants, and unco nstitutionally non-random. The district court referred the case to a magistrat e judge, who recommended granting Defendants summary judgment. The magistrate judge essentially found Plaintiffs suffered no constitutional deprivation a nd that Defendants were entitled to qualified immunity. The district court adopted the magistrate judge’s recommendation.
Discussion We review the district court’s grant of summary jud gment de novo. Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). Summary judgm ent is appropriate when there is no genuine dispute over amaterial fact and the moving party is entitled to judgment as a matter of law. Lucero v. Gunter , 52 F.3d 874, 877 (10th Cir. 1995). In reviewing the record, “[w ]e view the evidence and draw any inferences therefrom in the light most favorabl e to the party opposing summary judgment.” Id. We find the magistrate judge’s recommendation, whic h was adopted by the district court, did not address all of the issues r aised by Northington and Montoya.- 4 -

Specifically, it did not address the claim that the urine testing of program was not “truly random,” in violation of Lucero , 52 F.3d 874. In Lucero , we stated: [A]lthough random urine testing of inmates does notviolate the Fourth Amendment, . . . the procedures for selecti ng inmates for testing must be truly random. . . . Selection proc edures are not truly random and thus violate the Fourth Amendment when the procedures leave the “exercise of discretion as to selected ta rgets in the hands of a field officer with no limiting guidelines.” Id. at 877 (citations omitted). The legal standard in this case thus is clear: the defendants are entitled to subject Northington and Montoya to drug tests only so long as the drug tests are truly “random” under the requirements set forth in Lucero , 17 F.3d at 1350. So long as a prisoner offers some evidence raising a g enuine factual dispute as to the randomness of the tests, the burden then shifts to the government to establish the randomness. Lucero , 52 F.3d at 877 (“[W]e conclude the government has demonstrated that the urinalysis request in question was based o n random selection.” (emphasis added)). To survive a motion for summary judgment, the evide nce before the district court must be “such that a reasonable jury could re turn a verdict for the nonmoving party.” Vitkus v. Beatrice Co. , 11 F.3d 1535, 1539 (10th Cir. 1993) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 250-51 (1986)). In this case, Northington and Montoya have offered det ailed, specific evidence that they have been drug tested more often than the typi cal inmate at LCF, that the- 5 -

frequent drug testing to which they have been subje cted is in retaliation for lawsuits filed against prison officials, and that t he drug tests thus were not “truly random.” We find this evidence is sufficient to de feat Defendants’ motion for summary judgment. In Montoya and Northington’s Verified Response to D efendants’ Motion to Dismiss or for Summary Judgment, Montoya detailed the series of urine tests to which he was subjected and the circumstances in whi ch those tests were allegedly conducted. Montoya claims that in early January 19 94, approximately ten days after filing a state court complaint against Defend ant Furlong, “he was arrested by security officer [ sic ] at LCF and taken to Defendant Bergman who then or dered Montoya to provide a urine specimen claiming that i t was being ordered as a ‘follow-up’ by the Shift Commander.” (Verified Res ponse to Defendants’ Motion to Dismiss or for Summary Judgment at 15-16, R.O.A. Tab 62.) Approximately fours weeks after this test, Montoya was again ordered to provide a urine specimen. “When Montoya complained stating that other inmates weren’t being subjected to constant urinalysis who also had been convicted in disciplinary hearings for possession or use of dang erous drugs, Defendant Butler responded that it didn’t matter how other inmates w ere treated and that Defendant Butler could require Montoya to provide and be subj ected to UA’s whenever he felt like it for no reason or any reason at all.” (Id. at 18)- 6 -

In June 1994, after several more tests, Montoya was subjected to another drug test, which was administered by Defendant Host etler. “When Montoya asked Defendant Hostetler why he was being constant ly required to give urines [ sic ], Defendant Hostetler replied that he didn’t know why other than the order came from the Shift Commander . Defendant Hostetler then informed Montoya that he wasn’t the only inmate who was being single d outfor such treatment. Defendant Hostetler then stated to Montoya that Northington was also being subjected to constant urinalysis because of Northin gton’s lawsuit against officers in the facility.” (Id. ) (emphasis added) Montoya tested positive for cannibinoids on Decembe r 10, 1995. At a hearing held on January 9, 1995, Montoya challenged the test, claiming it was a false positive. Defendant Samu, who was then a def endant in a separate civil action brought by Montoya, served as the hearing of ficer and presented the prison’s case against Montoya. Montoya was not permitted an Inmate Representative, and was not provided a copy of the completed urinalysis checklist which he claimed would support his theory that prop er testing procedures had not been followed and that the test results thus were n ot reliable. (Id. at 21) In his affidavit, which was attached to the verifie d brief in opposition to summary judgment, Montoya made additional specific allegations. For instance, Montoya described a situation where he served Defen dant Samu with a complaint- 7 -

on behalf of Inmate Rudy Archuleta after obtaining a pass into the hearing room where Samu was serving as a hearing officer. “Mr. Samu jumped out of his chair in a threatening manner yanking the pass out of my hand and then yelling at me about being a [ sic ] inmate and having no rights when it came to him. I then attempted to apologize stating that I had permissio n to bring the papers to him when Mr. Samu became very hostile telling me that h e would remember me in the future and then ordered me to leave the hearing roo m before he found some reason to put me in the ‘hole.’” (Montoya Affidavi t, R.O.A. Tab 63 at 11) Further, Montoya stated that “almost immediately” a fter filing a complaint in state court against Defendants Furlong and Samu, “I was arrested and ordered to provide a urine sample with the statement by Sgt . Bergman that it was being done in relation to getting my visits back which later proved to be untrue. Then in approximately ten-months I was required to provi de at least seven urine specimens none of which I was ever informed screened positiv e for drugs.” (Id. at 13 (emphasis added)) Like Montoya, Northington has also adduced sufficie nt evidence that the urine testing to which he was subjected was not ran dom. In the verified response in opposition to summary judgment, Northington alle ged that the conflict between defendants and Northington began after a January 28 , 1993 incident at LCF during which a correctional officer was stabbed by a Hispanic inmate.- 8 -

Northington served as the inmate representative forseveral Hispanic inmates in hearings arising out of that incident. (Verified B r. in Opposition at 4, R.O.A. Tab 62). After a disciplinary hearing on February 5, 1 993 during which Northington served as the inmate representative for Joseph Medi na, defendant Samu “had Northington arrested and taken to the office of the facility investigator, Dennis Hougnon. Dennis Hougnon then informed Northington that it was his intent and the intent of all officers and the administration o f LCF to retaliate against Northington for representing these minority inmates , and against the general inmate population as a whole for the attack on corr ectional officers and until which time it was discovered what Mexican inmate st abbed Officer Combs.” (Id. at 5) Later, Defendant Hostetler told Montoya thatNorthington was being subjected to constant urinalysis because of his rep resentation of other inmates in litigation against LCF prison officials. (Id. at 18) On January 28, 1994, Northington contacted Defendant Furlong regarding the status of a disciplinary proceeding involving I nmate Troy Sharpe, whom Northington had represented. Furlong told Northing ton he would look into the matter. The next day, at approximately 8:30 a.m., Northington was “arrested by security officers and taken to the Receiving Unit w here he was placed in a holding cell with Inmate Sharpe. Defendant Bergman then gave both Northington and Inmate Sharpe a direct order to provide a urine specimen within one hour or- 9 -

face disciplinary action. Northington then informe d Defendant Bergman that he was currently under medical care for intestinal and urinary infections and . . . requested that Defendant Bergman provide some hot f luids if possible and/or to allow Northington to sit on the toliet [ sic ] to prevent Northington from defecating on himself which he was doing in attempting to prov ide the urine specimen.” Bergman denied both of these requests, and Northing ton was unable to urinate. (Id. at 28) On February 10, 1994, Captain Jarvis infor med Northington that the January 29 test was not the result of a random comp uter selection. (Id. at 30) Northington was again tested on March 15, 1994, (Id

. at 33) as well as on June 1, 1994. (Id. at 36) Defendant Nutter was initially seated as t he hearing officer for the disciplinary hearing regarding Nort hington’s failure to urinate for the January 29, 1994 test. Northington objected to Nutter’s serving as the hearing officer, because in the summer of 1993 Nutter had t old Northington that if he “ever wanted to retaliate against Northington . . . he would order Northington to be UA’d and that the results would come back positi ve. Since Northington did not use drugs, he understood this statement by Defe ndant Nutter as informing him that he or someone else would tamper with Northingt on’s urine specimen.” (Id. at 31) After Northington’s objection, Nutter was repl aced by another hearing officer.- 10 -

On July 28, 1994, after returning to LCF from a cou rt appearance in Denver for Northington v. Zavares , another lawsuit he had filed against LCF official s, Northington “was arrested by Capt. Waide without explaination [ sic ] and placed in full body retraints [ sic ] and in a dry cell under 24-hour observation.” Northington asked Waide why he had been arrested, a nd Waide did not answer. Northington then “informed Capt. Waide that he beli eved Capt. Waide was retaliating against him for filing suit against sev eral officers in the federal court . . . . Capt. Waide did not deny Northington’s alleg ation.” (Id. at 36) At a subsequent hearing in Zavares , prison officials offered inconsistent explanation s as to why Northington was dry celled on July 28, 19 94. (Id. at 38-39) The July 28, 1994 urine sample tested positive for marijuana. At a subsequent hearing regarding that test, Defendant F arrell testified that no one from the Drug Test Unit could testify that the drug test results were accurate. (Id. at 42) Northington was tested again on November 15, 1994, and December 15, 1994. During the December 15, 1994 test, Northingt on complained to Defendant Hostetler that he had been tested one month earlier , and had not yet received the results. “Defendant Hostetler replied by asking No rthington whether he had ‘pissed off Capt. Nutter lately.’ When Northington answered that he had just recently filed suit against Defendant Nutter in State court, Defendant Hostetler- 11 -

replied that it was Defendant Nutter who had ordere d Northington UA’d informing Defendant Hostetler to mark the lab slip ‘reasonable suspicion’ even though Defendant Hostetler could not articulate to Northington what that alleged ‘reasonable suspicion’ was.” (Id. at 46) Based on these specific factual allegations, offere d under oath, we believe there is a genuine issue of material fact as to whe ther the urine tests to which Northington and Montoya were subjected were “truly random” under Lucero . We therefore conclude that the district court erred in granting summary judgment. Additionally, we are persuaded that Northington and Montoya made an adequate objection under Fed. R. Civ. P. 56(f) to t he defendants’ motion for summary judgment on the basis that they had not yethad the opportunity to conduct essential discovery. (See Verified Response at 7, 9, 61; Objections to Magistrate’s Recommendation, R.O.A. Tab 64, at 64). Although Northington and Montoya do not expressly cite to Rule 56(f), they e xpressly state that summary judgment should not be granted against them at this time because they have not yet had the opportunity to conduct essential discov ery. They go on to identify with some precision what further discovery would be useful. Although pro se defendants have to comply with the federal rules, w e believe that their verified statements in opposition to the defendants’ motion for summary judgment satisfy- 12 -

the requirements of Rule 56(f). See Thomas v. Turner , 30 F.3d 142 (Table), 1994 WL 363540 (10th Cir. 1994). Northington and Montoya additionally contend that t he magistrate and district judges failed to consider their argument t hat the drug tests were in and of themselves violations of their constitutional right s, regardless of whether they satisfied Lucero ’s “truly random” requirement. This argument is wi thout merit. Urine testing is a long-accepted method of enuring prison security, e.g. , Lucero , 17 F.3d at 1350. Thus, the mere fact that urine te sts were conducted does not amount to a constitutional violation, so long as th e tests were conducted randomly. Finally, Northington and Montoya argue that the uri ne testing program was conducted in a racially discriminatory manner. How ever, their only allegations regarding this claim are entirely conclusory, and c onclusory allegations are not sufficient to survive summary judgment. See Setliff v. Memorial Hosp. , 850 F.2d 1384, 1392 (10th Cir. 1988).
Conclusion For the foregoing reasons, the district court’s grant of summary judgment in favor of the defendants REVERSED with regard to Northington and Montoya’s claim that the drug testing program was conducted i n an impermissibly nonrandom manner. However, the district court’s grantof summary judgment is- 13 -

AFFIRMED with respect to all other claims. Accordi ngly, the case is REMANDED to the district court for further proceedi ngs consistent with this opinion.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge