IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN D. WILSON, :

Plaintiff, : No.: 3:15-cv-01813

:

v. : (Judge Caputo)

: (Magistrate Judge Saporito)

AVERTEST, et al. :

:

Defendants. :

REPORT AND RECOMMENDATION

This in forma pauperis action was initiated by the filing of a pro se

complaint on September 17, 2015, by the plaintiff, John D. Wilson, against

the defendants, Avertest, a Virginia corporation, and its employees, Ethan

Doe and Shane Doe. (Doc. 1). The complaint consists of alleged violations

of the First and Fourth Amendments to the United States Constitution

arising out of an incident which occurred on July 14, 2015, while Wilson

was under supervision by the Daily Reporting Center (“DRC”) of the York

County Department of Probation Services (the “probation office”). The

essence of Wilson’s complaint is that, as a member of the Jewish religion,

his First and Fourth Amendment rights were violated when employees of

Avertest, the contracted testing agency for the probation office, allegedly

Case 3:15-cv-01813-ARC Document 20 Filed 09/07/16 Page 1 of 18
strip searched him as he was asked to provide a random sample of his

urine.

1

Before the court is a motion to dismiss (Doc. 13) filed by the

defendants seeking to dismiss the complaint for failure to state a claim

upon which relief can be granted. The motion has been fully briefed and

is now ripe for disposition. For the reasons set forth below we will

recommend that the motion be granted.

I. Background

The first count of the complaint alleges that on July 14, 2015, in

York, Pennsylvania, defendant Shane asked Wilson to “drop his pants, lift

up his testicles, turn, bend over and spread his buttocks” stating that this

was defendant Avertest’s policy and any refusal to comply would result in

a positive reading for alcohol. (Doc. 1 ¶5). Wilson further alleged that he

1

 In the complaint, Wilson made no reference to his court-ordered

supervision by the probation office, nor his participation in the DRC.

The defendants’ motion to dismiss contained these facts as did the

public record contained in publicly available state court records. See

generally Commonwealth v. Wilson, Docket No. CP-67-CR-0004642-

2014 (York County C.C.P.). These state court materials are public

records of which this court may properly take judicial notice in ruling

on a motion to dismiss. See Fed. R. Evid. 201; Sands v. McCormick, 502

F.3d 263, 268 (3d Cir. 2007); Pennsylvania v. Brown, 373 F.2d 771, 778

(3d Cir. 1967).

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refused to comply with Shane’s requests stating that Shane was

performing an illegal search of Wilson’s person. (Id. 1 ¶¶5,6). Wilson

further averred that defendants Shane and Ethan continued to request

that Wilson comply with Avertest’s policies. (Id. ¶8). Based upon these

allegations, Wilson contends that his Fourth Amendment rights were

violated.

In the second count of the complaint, Wilson maintains that he was

born Jewish and that he has a right not to be humiliated by exposing

himself outside of his Judaic beliefs. (Id. ¶13). Further, Wilson claims that

he is exempt from unnecessary searches unless Avertest can show that

denying the exemption was necessary to serve a compelling interest. (Id.

¶14). Based upon those facts, Wilson claims that his First Amendment

rights were violated.

The defendants move to dismiss the complaint on the basis that

neither the First Amendment nor the Fourth Amendment protects against

the conduct alleged because the defendant Avertest is a private

corporation and defendants Shane and Ethan are Avertest’s employees.

Alternatively, the defendants contend that the complaint must be

dismissed because the terms and conditions of Wilson’s probation/parole

3

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required his submission to drug and alcohol urinalysis screenings at

Avertest’s facility in York, Pennsylvania. (Doc. 13).

II. Legal Standards

A. 12(b)(6) Motion to Dismiss

Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which relief

is granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion to

dismiss may be granted only if, accepting all well-pleaded allegations in

the complaint as true and viewing them in the light most favorable to the

plaintiff, a court finds the plaintiff’s claims lack facial plausibility.”

Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although

the Court must accept the fact allegations in the complaint as true, it is

not compelled to accept “unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Morrow

v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.

McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)).

Under Rule12(b)(6), the defendant has the burden of showing that

no claim has been stated. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d

4

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1406, 1409 (3d Cir. 1991); Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir.

1980); Holocheck v. Luzerne Cty. Head Start, Inc., 385 F. Supp. 2d 491,

495 (M.D. Pa. 2005). In deciding the motion, the court may consider the

facts alleged on the face of the complaint, as well as “documents

incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007). The court may also consider “undisputedly authentic

document[s] that a defendant attaches as an exhibitto a motion to dismiss

if the plaintiff’s claims are based on the [attached] documents.” Pension

Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.

1993). Moreover, “documents whose contents are alleged in the complaint

and whose authenticity no party questions, but which are not physically

attached to the pleading, may be considered.” Pryor v. Nat’l Collegiate

Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002).

III. Discussion

Based on the publicly available state court records referenced above,

on May 14, 2015, following a jury trial in the Court of Common Pleas of

York County, Pennsylvania, Wilson was convicted of driving under the

influence (second offense), reckless driving, and driving at safe speed. On

5

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June 29, 2015, Wilson was sentenced to five years in the county

intermediate punishment program, including six month of house arrest

with alcohol monitoring and participation in the Day Recruiting Center

Program (“DRC”).2 Attached to the defendants’ brief in support of their

motion to dismiss is the DRC’s document which sets forth its drug testing

procedures, and which was signed by Wilson agreeing to be bound by its

terms. (Doc. 14-1). In the document which contained drug testing

procedures, Wilson was informed that, as a participant of the DRC, he was

required to submit to random drug and alcohol screens through Avertest.

(Id.). Wilson was further informed that he would be subject to random

urine and breath testing at any time and his failure or refusal to comply

would be considered a positive test result. (Id. at 2). In addition, he was

informed that he was subject to a random search of his person, vehicle,

and/or place of residence by a staff member of the DRC or the probation

office. (Id.).

2

 Wilson’s intermediate punishment program sentence was

ultimately revoked, and he was sentenced to serve 90 days to five years

in prison. He has since been released on parole.

6

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In his complaint, Wilson complains that on July 14, 2015, his rights

were violated when he was directed to remove his pants, and subject

himself to an inspection of his spread buttocks. (Doc. 16-1). In his brief,

Wilson concedes that he was court ordered to submit to random urinalysis

testing. (Id.). He cites the relevant portion of the defendants’ brief

regarding the procedure utilized by Avertest as follows:

Defendant Avertest’s urinalysis screening procedure

requires direct observation by a collector of the same

gender. Specifically, male clients are asked to loosen

their belts, unzip their pants, and shed any clothing

that may obstruct collector’s view.

(Doc. 14, at 1).

Although Wilson does not specifically characterize this as an action

under 42 U.S.C. §1983, we liberally construe his pro se complaint as such 

a federal civil rights action. Section 1983 provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress . . . .

7

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42 U.S.C. § 1983. Section 1983 does not create substantive rights, but

instead provides remedies for rights established elsewhere. City of

Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim,

the plaintiff must establish that the defendants, acting under color of

state law, deprived the plaintiff of a right secured by the United States

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995). To avoid dismissal for failure to state a claim, a civil rights

complaint must state the conduct,time, place, and persons responsible for

the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d

Cir. 2005).

The defendants make a preliminary contention that, as private

entities, they were not acting under color of state law, and therefore could

not violate Wilson’s constitutional rights. A private party will be deemed

a state actor if there is “a sufficiently close nexus between the government

and the private party’s conduct so that the conduct may be fairly

attributed to the state itself.” Campbell v. PMI Food Equip. Grp., Inc.,

509 F.3d 776, 784 (6th Cir. 2007), or the private party’s action is

“entwined with governmental policies.” Brentwood Acad. v. Tenn.

Secondary Sch., 531 U.S. 288, 296 (2001). Although Wilson’s complaint

8

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does not specifically allege that Avertest acted as the agent for the

probation office, the documents attached to the defendants’ motion and

brief in support thereof clearly show that Avertest was the probation

office’s “contracted provider.” (Doc. 14-1, at 1). Thus, the relationship

between the probation office and Avertest in conducting the tests as the

probation office’s provider established that Avertest acted under color of

state law.

A. Fourth Amendment Claim

We construe Wilson’s contention that on July 14, 2015, and other

unlisted dates, he was asked “to drop his pants, lift up his testicles, turn,

bend over and spread his buttocks” to sound under the Fourth

Amendment. The Fourth Amendment protects the “rights of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. It is settled

law that the collection and analysis of a urine sample to test for drug use

constitutes a search that is subject to the constraints of the Constitution’s

Fourth Amendment. Kerns v. Chalfont - New Britain Twp. Joint Sewage

Auth., 263 F.3d 61, 65 (3d Cir. 2001).

9

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“The fundamental task of any Fourth Amendment analysis is

assessing the reasonableness of the government search.” United States v.

Sczubelek, 402 F.3d 175, 182 (3d Cir. 2005). Whether a search is

reasonable under the general Fourth Amendment totality of the

circumstances approach “is determined by assessing, on the one hand,the

degree to which it intrudes upon an individuals privacy and, on the other,

the degree to which it is needed for the promotion of legitimate

governmental interests.” Samson v. California, 547 U.S. 843, 848, (2006);

see United States v. Williams, 417 F.3d 373, 378 (3d Cir.2005). Based

upon the publicly available court records, at the time of the allegedly

wrongful conduct, Wilson was under an intermediate punishment program

sentence, subject to strict supervision similar to, but greater than, that

imposed upon parolees and probationers. See generally, 42 Pa. Cons. Stat.

Ann. §9804; Commonwealth v. Wegley, 829 A.2d 1148, 1152-53 (Pa. 2003)

(discussing intermediate punishment program sentencing, a “sentencing

option. . . between probation and incarceration”). Parolees have “severely

diminished expectations of privacy by virtue of their status alone” because

they consent to restrictive parole conditions such as reporting

requirements, travel limitations, and drug testing in exchange for early

10

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release from prison. Samson, 547 U.S. at 852. By contrast, a state’s

“overwhelming interest” in supervising parolees to reduce recidivism

“warrant[s] private intrusions that would otherwise not be tolerated under

the Fourth Amendment.” Id. at 853.

The Supreme Court has observed that “[t]o a greater or lesser

degree, it is always true of probationers (as we have said it to be true of

parolees) thatthey do not enjoy ‘the absolute liberty to which every citizen

is entitled, but only conditional liberty properly dependent on observance

of special restrictions.’” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)

(quoting Morrissey v. Brewster, 408 U.S. 471, 480 (1972)).

As our sister court, the United States District Court for the Eastern

District of Pennsylvania, recently observed: “Neither the Supreme Court

nor the Third Circuit Court of Appeals has addressed the question of when

a probation officer can conduct a suspicionless search of a probationer and,

if so, whether the probation officer may conduct such a suspicionless

search in the absence of probation conditions expressly authorizing that

search.” Collura v. Ford, Civil Action No. 13-4066, 2016 WL 409 228, at

*20 (E.D. Pa. Feb. 3, 2016). A probationer’s Fourth Amendment rights are

not violated by urine testing employed by a probation officer to

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determine whether the probationer has used drugs in violation of

probation conditions, See United States v. Duff, 831 F.2d 176 (9th Cir.

1987), see also Hadden v. Jacobs, Civil Action No. 90-0759, 1990 WL

26677 at *1, Civil Action No. 90-0759, (E.D. Pa. Mar. 12, 1990) (requiring

parolee to submit to urinalysis as condition of parole is not a violation of

the Fourth Amendment); cf. Portillo v. U.S. District Ct. for Dist. of Ariz.,

15 F.3d 819, 823-24(1994).

In the instant case, Wilson was convicted of driving under the

influence and was sentenced to a county intermediate punishment

program. His sentence contained the condition that he participate in the

DRC, which included random urine testing and searches of his person.

Wilson agreed, in writing, to abide by those conditions. (Doc. 14-1, at 2).

Here, Wilson alleged that he was subjected to a strip search. The

reasonableness of a strip search or visual cavity search is assessed by

considering the totality of the circumstances, including “the scope of the

particular intrusion,the manner in which it is conducted,the justification

for initiating it, and the place in which it is conducted.” See Bell v.

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Wolfish, 441 U.S. 520, 559 (1979)(holding that prison officials may conduct

visual body cavity searches in a reasonable manner).

We reiterate that Wilson, having been sentenced to an intermediate

punishment program, had diminished privacy rights by virtue of his prior

consent to warrantless personal searches by Avertest’s employees or

members of the probation office. As to the justification for initiating the

strip search, based upon the state of the record, the complaint is devoid of

reasons why the strip search was not in furtherance of the DRC’s stated

policies.

As to the manner in which the strip search was conducted, the

complaint lacks any specificity describing the nature of the search, where

it was conducted, who was present, whether Wilson was touched in the

process, and whether it was obtrusive. See Richmond v. City of Brooklyn

Ctr., 490 F.3d 1002,1008 (8th Cir. 2007) (law requires that officers of the

same sex conduct strip search “in an area as removed from public view as

possible without compromising legitimate security concerns”); Polk v.

Montgomery Cty., Md., 782 F.2d 1196, 1201–02 (4th Cir.1986) (“Whether

the strip search was conducted in private is especially relevant in

13

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determining whether a strip search is reasonable under the

circumstances.”).

Therefore, based upon this analysis, we do not find a violation of the

Fourth Amendment, and we will recommend that the defendants’ motion

to dismiss be granted as to Wilson’s Fourth Amendment claim.

B. First Amendment Claim

In the second count of the complaint, Wilson charges that his First

Amendment free exercise rights were violated. He claims to be of the

Jewish faith and “has a right not to bare his nakedness for any

unnecessary reason.” (Doc. 16-1, at 3). In support of his claim, he cites,

Hadden. In Hadden, the United States District Court for the Eastern

District of Pennsylvania held that parolees do not have a right to privacy

against urine testing and the court dismissed the action.3

The First Amendment provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise

thereof. . .” U.S. Const. amend I.

3

 In Hadden, the plaintiffs did not make a claim that the testing of

their urine violated their First Amendment rights.

14

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Wilson fails to cite any legal authority thatthe urinalysis in question

violatesFirst Amendment rights. The case law on this topic generally falls

into a category of cases occurring in prison settings. For example, in Hill

v. Blum, 916 F. Supp 470 (E. D. Pa. 1996), a state prison guard’s pat-down

search of a Muslim inmate, which purportedly included brief touching of

the inmate’s genitals, did not violate his First Amendment rights. In

Small v. Wetzel, 528 Fed. App’x 202 (3d Cir. 2013), prison inmates

brought a §1983 civil rights action after they were strip-searched in the

presence of female prison staff claiming it to be violations of their First,

Fourth, and Fourteenth Amendment rights. The Third Circuit held that

the strip search did not violate the inmates’ right to be free from

unreasonable searches and seizures. The court also noted that the

plaintiffs did not seek appellate review of their First Amendment claims

which the District Court dismissed.

Thus, based upon the foregoing, we do not find that Wilson alleged

a violation of the First Amendment, and we will recommend that the

defendant’s motion to dismiss be granted as to Wilson’s First Amendment

claim.

15

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C. Leave To Amend

The Third Circuit has instructed that if a civil rights complaint is 

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be inequitable

or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002). In this case, it is not clear that amendment would be futile, nor is

there any basis to believe it would be inequitable. It is therefore

recommended that Wilson be granted leave to file an amended complaint

within a specified time period following dismissal of the complaint.

IV. Recommendation

Based upon the foregoing, it is RECOMMENDED that the

defendants’ motion to dismiss (Doc. 13) be GRANTED. It is FURTHER

RECOMMENDED that the plaintiff, John D. Wilson, be granted leave to

file an amended complaint within a specified time.

s/ Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

U.S. Magistrate Judge

Dated: September 7, 2016

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN D. WILSON, :

Plaintiff, : No.: 3:15-cv-01813

:

v. : (Judge Caputo)

: (Magistrate Judge Saporito)

AVERTEST, et al. :

:

Defendants. :

NOTICE IS HEREBY GIVEN that the undersigned has entered 

the foregoing Report and Recommendation dated September 7, 2016.

Any party may obtain a review of the Report and 

Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed

findings, recommendations or report addressing a

motion or matter described in 28 U.S.C. § 636 (b)(1)(B)

or making a recommendation for the disposition of a

prisoner case or a habeas corpus petition within

fourteen (14) days after being served with a copy

thereof. Such party shall file with the clerk of court,

and serve on the magistrate judge and all parties,

written objections which shall specifically identify the

portions of the proposed findings, recommendations or

report to which objection is made and the basis for

such objections. The briefing requirements set forth

in Local Rule 72.2 shall apply. A judge shall make a

de novo determination of those portions of the report

or specified proposed findings or recommendations to

17

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which objection is made and may accept, reject, or

modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The

judge, however need conduct a new hearing only in his

or her discretion or where required by law, and may

consider the record developed before the magistrate

judge, making his or her own determination on the

basis of that record. The judge may also receive

further evidence, recall witnesses or recommit the

matter to the magistrate judge with instructions.

Failure to file timely objections to the foregoing Report and

Recommendation may constitute wavier of any appellate rights.

s/ Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

U.S. Magistrate Judge

Dated: September 7, 2016

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