1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 16a0019p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

DAVID C. EATON, 

Plaintiff-Appellant, 

v. 

LEXINGTON-FAYETTE URBAN COUNTY 

GOVERNMENT; JIM NEWBERRY, Mayor of the 

Lexington-Fayette Urban County Government; 

MARY HESTER, Assistant Director, Program and 

Services, Division of Community Corrections, 

Lexington-Fayette Urban County Government, 

Defendants-Appellees. 

┐

│

│

│

│

│

│

│

│

│

│

│

│

┘

No. 15-5732 

Appeal from the United States District Court 

for the Eastern District of Kentucky at Lexington. 

No. 5:07-cv-00215—Joseph M. Hood, District Judge. 

Decided and Filed: January 28, 2016 

Before: NORRIS, BATCHELDER, and SUTTON, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Geraldine Kay Hine, Lexington, Kentucky, for Appellant. Carolyn C. Zerga, 

LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Lexington, Kentucky, for 

Appellees. 

_________________ 

OPINION 

_________________ 

 SUTTON, Circuit Judge. David Eaton sued a municipality, claiming that its drug-testing 

program was so unreliable that it violated his Fourth (and Fourteenth) Amendment rights. 

>
No. 15-5732 Eaton v. Lexington-Fayette Urban Cnty., et al. Page 2 

Because Eaton did not offer sufficient evidence to support his claim, the district court granted the 

municipality’s motion for summary judgment. We affirm. 

 In August 2005, Eaton asked a family court in Lexington, Kentucky, to grant him custody 

of his infant son. He alleged that the child’s mother would endanger the child’s safety if she 

retained custody. The mother did not leave it at that. She responded that Eaton had “significant 

substance abuse issues” of his own. R. 68-3 at 2. In the face of these competing claims, the 

family court ordered both parents to undergo drug and alcohol testing at the Community 

Alternative Program, a program run by an arm of the Lexington municipal government. 

The mother’s results came back clean. Eaton’s did not. He tested positive for cocaine 

and opiates. The family court ordered him to undergo additional testing on a regular basis. All 

told, between January 2006 and July 2007, Eaton took around 120 urine tests through the 

community program. He tested positive for drugs at least ten times and for alcohol at least 

twenty times. 

 Soon after Eaton began the drug testing, he moved to strike some of the positive results, 

claiming they were inaccurate. The family court denied the request, and Eaton did not appeal. 

He nevertheless sought to avoid taking more tests through the community program, possibly 

because an alternative site was more convenient, possibly because he thought the alternative site 

would generate better results. As to the latter possibility, any such hopes did not pan out. On 

several occasions, Eaton gave a urine sample at both the community program and the alternative 

site on the same day. At the alternative site, Eaton tested positive in four drug tests and one 

alcohol test. So far as the record shows, the results at the two sites never came to opposite 

results. Nevertheless, the family court in July 2007 granted Eaton’s request to cease testing at 

the community program, allowing him to test exclusively at the alternative location. 

A few months later, the family court granted sole custody of the child to the mother, 

apparently due to Eaton’s ongoing substance abuse problems. 

 Meanwhile, Eaton filed a § 1983 action at roughly the same time that he stopped going to 

the community program for drug and alcohol testing. He filed the federal action against the 

Lexington-Fayette Urban County Government (and two city officials) and alleged that each drug 
No. 15-5732 Eaton v. Lexington-Fayette Urban Cnty., et al. Page 3 

test at the community program violated his Fourth Amendment rights. He argued that the 

community program “fail[ed] to use adequate procedures to allow for reasonable reliability of 

the test results.” R. 1 at 2. He sought a declaration that the drug-testing policy was 

unconstitutional, an injunction against its continued implementation, and over $200,000 in 

damages. 

The district court dismissed the claims for declaratory and injunctive relief because they 

interfered with the ongoing family court litigation. See Younger v. Harris, 401 U.S. 37 (1971). 

And it stayed the damages claims to give the state courts a first shot at assessing Eaton’s Fourth 

Amendment challenge. See Deakins v. Monaghan, 484 U.S. 193 (1988). 

The district court lifted the stay after the state courts declined to reach Eaton’s 

constitutional claims. See Eaton v. Johnson, Nos. 2010-CA-002080-ME, 2011-CA-001907-ME, 

2012 WL 3762034, at *1 (Ky. Ct. App. Aug. 31, 2012). The district court later granted 

Lexington’s motion for summary judgment, holding that (1) his Fourth Amendment claims were 

defective and (2) his challenges to his earliest drug tests were time-barred. Eaton v. LexingtonFayette Urban Cty. Gov’t, No. 07-215-JMH, 2015 WL 3548816, at *3–4 (E.D. Ky. June 8, 

2015). Eaton appeals both rulings. We need not address the statute-of-limitations ruling, as he 

did not present enough evidence to permit any of his Fourth Amendment claims, whether timebarred or not, to survive summary judgment. 

“[S]tate-compelled collection and testing of urine,” the Supreme Court has said, 

“constitutes a ‘search’ subject to the demands of the Fourth Amendment.” Vernonia Sch. Dist. 

47J v. Acton, 515 U.S. 646, 652 (1995). The “touchstone” of validity in this area comes down to 

“reasonableness.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quotation omitted). That in 

turn requires “a fact-specific balancing of the intrusion on the [subject]’s Fourth Amendment 

rights against the promotion of legitimate governmental interests.” Bd. of Educ. v. Earls, 536 

U.S. 822, 830 (2002). 

Eaton challenges the community program’s testing procedures on the ground that the test 

results lack “scientific reliability.” Appellant’s Br. 8. That is not an everyday Fourth 

Amendment claim. Most constitutional challenges go to whether the government had a 
No. 15-5732 Eaton v. Lexington-Fayette Urban Cnty., et al. Page 4 

sufficient interest to justify the tests. See, e.g., Earls, 536 U.S. at 835. And some go to whether 

the government violated the individual’s reasonable expectations of privacy in implementing the 

test or sharing the results of it. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 80–81 

(2001); Norris v. Premier Integrity Solutions, Inc., 641 F.3d 695, 698–99 (6th Cir. 2011). But 

Eaton’s challenge does neither. He has no qualms with the test in either respect. 

He instead raises what looks, to the trained and untrained eye, like an evidentiary 

challenge to the reliability of the test results—to whether the state court could rely on them in 

making its custody decision. Of course, Eaton should have raised any such challenge in state 

court, not federal court, and should have relied on evidence law, not the Federal Constitution, in 

doing so. But the two types of challenges—evidentiary and constitutional—are not mutually 

exclusive, and an utterly unreliable—read random—testing procedure might well violate the 

Fourth Amendment, if not the due process requirements of the Fourteenth Amendment. 

Procedures that generate results that are not close to “accurate in the overwhelming majority of 

cases,” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 632 n.10 (1989), may themselves cause 

testing to be unreasonable in the Fourth Amendment sense. That explains why the Court has 

mentioned accuracy as one factor that informs the reasonableness inquiry. See, e.g., Nat’l 

Treasury Emps. Union v. Von Raab, 489 U.S. 656, 672 n.2 (1989); Skinner, 489 U.S. at 632 

n.10; see also Schmerber v. California, 384 U.S. 757, 771–72 (1966); Knox Cty. Educ. Ass’n v. 

Knox Cty. Bd. of Educ., 158 F.3d 361, 385–86 (6th Cir. 1998). 

That it may be possible to conceive of such a constitutional challenge, however, does not 

mean that Eaton has made a cognizable one. He never argues that the community program’s 

testing creates random results; he argues only that better procedures were available. We need not 

decide exactly what it takes to raise a cognizable Fourth Amendment claim or indeed how a 

Fourth Amendment claim would work in this area. Whatever the nature of such a claim, Eaton’s 

bare bones arguments cannot survive summary judgment either way. 

Lexington introduced ample evidence to justify its drug-testing program. A State and its 

municipalities have an “urgent interest in the welfare of” children, especially in the context of 

resolving competing parental claims for custody of a child. Lassiter v. Dep’t of Soc. Servs., 

452 U.S. 18, 27 (1981). The drug tests—for the father and mother—furthered this interest by 
No. 15-5732 Eaton v. Lexington-Fayette Urban Cnty., et al. Page 5 

allowing the family court to make an informed decision about the child’s well-being. And of 

course the tests were undertaken in connection with a court order, lessening Lexington’s burden 

relative to “suspicionless” drug testing conducted in the absence of judicial authorization. See

Earls, 536 U.S. at 830. Judicial authorization assures the subject of the search “of the lawful 

authority of the executing officer, his need to search, and the limits of his power to search.” 

United States v. Chadwick, 433 U.S. 1, 9 (1977), abrogated on other grounds by California v. 

Acevedo, 500 U.S. 565 (1991). 

In support of its position, Lexington also filed several exhibits explaining the privacy 

protections that the community drug-testing program used. First, its employees are well-trained. 

Employees must learn all proper procedures, with those who operate the testing equipment 

required to undertake extensive additional training and testing. And the American College of 

Pathologists subjects the program to proficiency testing several times per year. Nothing in the 

record indicates the drug-testing program ever failed. 

Second, the drug-testing program has a well-scripted set of procedures. It operates a 

uniform check-in system. It guides employees on how to ensure subjects give legitimate 

samples, including where necessary observing subjects provide their samples. Each specimen 

cup is labeled with the subject’s identifying information. Testing equipment and samples are 

stored behind lock and key. Technicians typically perform the same set of drug and alcohol 

screens on all samples. If a sample comes back positive, the program will not report it until 

confirmed by a second test. If a subject does not agree with a positive result, he may ask to send 

the sample to an independent lab for additional testing at his expense. 

Third, the program uses a reliable means of testing its samples. It performs all tests 

through the “enzyme-multiplied immunoassay technique,” a procedure that courts have found 

reliable, see Higgs v. Bland, 888 F.2d 443, 449 (6th Cir. 1989); see also Somers v. State, 

368 S.W.3d 528, 537–42 (Tex. Crim. App. 2012) (collecting cases). Some other tests, it is true, 

have lower error rates. See Feliciano v. City of Cleveland, 988 F.2d 649, 657 (6th Cir. 1993); see 

also 18 U.S.C. § 3583(d); 73 Fed. Reg. 71,858, 71,892–93 (Nov. 25, 2008). But this program’s 

technique is “among the most consistently accurate drug testing methods,” is “quick [and] 
No. 15-5732 Eaton v. Lexington-Fayette Urban Cnty., et al. Page 6 

relatively inexpensive, and can be operated by people who are not scientific experts.” Somers, 

368 S.W.3d at 537 (quotations omitted). 

These reasonable procedures, taken together with Lexington’s substantial interest in 

ordering the drug tests in the first place, satisfied Lexington’s initial burden of “informing the 

district court of the basis for its” summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 

317, 323 (1986). Once Lexington made this showing, it fell to Eaton to demonstrate a “genuine 

dispute as to any material fact” and to show that Lexington was not entitled to judgment as a 

matter of law. Fed. R. Civ. P. 56(a). He never did so. 

Eaton never challenged the reasonableness of the drug testing by attacking the 

governmental interests that justified the program. He thus did not argue that Lexington had no 

interest in conducting the drug testing or that the family court was wrong to order it. Eaton also 

never challenged the reasonableness of the drug testing on the ground that it violated his privacy. 

Cf., e.g., Ferguson, 532 U.S. at 82–84; Acton, 515 U.S. at 658; Norris, 641 F.3d at 700–02; Knox 

Cty. Educ. Ass’n, 158 F.3d at 380–82. 

Eaton argued only that the testing program was unreasonable because it failed “to ensure 

the integrity of the specimens and the reliability of the test results.” Appellant’s Br. 5. Yet 

Eaton does not point to any evidence showing that the testing procedures produce inaccurate 

results. There indeed is no such evidence in the record: no deposition testimony showing that 

the procedures were ignored; no expert affidavit on the procedure’s flaws; no documentation that 

positive results were often mistaken. Because Eaton did not present any probative evidence that 

would support his § 1983 claim, Lexington is entitled to summary judgment. 

Eaton’s main argument turns on a legal point—that the Supreme Court, he claims, has 

already held that urinalysis procedures must contain six features that render them “professionally 

valid.” Appellant’s Br. 8–9. That would be news to the Court. It has never said any such thing. 

The Court, it is true, has mentioned some or all of Eaton’s six features in discussing urine-testing 

regimes at various times. See, e.g., Acton, 515 U.S. at 650–51; Von Raab, 489 U.S. at 661–63; 

Skinner, 489 U.S. at 609–12. But it has never mandated these procedures as the be-all-and-endall test of reasonableness, much less required all six. To the contrary, it has held that it was not 
No. 15-5732 Eaton v. Lexington-Fayette Urban Cnty., et al. Page 7 

“per se unreasonable” for a drug-testing regime to lack something the Court had mentioned in 

upholding a different testing program. Acton, 515 U.S. at 659. That’s because the Court 

“eschew[s] bright-line rules” for Fourth Amendment interest-balancing tests, “instead 

emphasizing the fact-specific nature of the reasonableness inquiry.” Ohio v. Robinette, 519 U.S. 

33, 39 (1996). 

Courts have consistently accepted drug-test results in the face of Fourth Amendment 

challenges, moreover, that do not have one or more of these supposed requirements. While 

Eaton claims that a lab must confirm test results “at a different location [using] a different 

process,” Appellant’s Br. 11, several courts have deemed urine-test results reliable when, like the 

ones obtained here, they involved confirmation at the same lab using the same immunoassay 

method. See, e.g., Higgs, 888 F.2d at 445, 449; Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 

1986); Lahey v. Kelly, 518 N.E.2d 924, 928 (N.Y. 1987); see also 5 David L. Faigman et al., 

Modern Scientific Evidence § 40:12 (2015–16 ed.). The decision that Eaton points to as coming 

to a different conclusion, Jones v. McKenzie, 628 F. Supp. 1500 (D.D.C. 1986), provides little 

support, as the D.C. Circuit reversed that decision in view of the Supreme Court’s earliest urinetesting cases, see Jones v. McKenzie, 833 F.2d 335, 340–41 (D.C. Cir. 1987), modified sub nom.

Jones v. Jenkins, 878 F.2d 1476, 1477 (D.C. Cir. 1989) (per curiam). Eaton also overlooks the 

reality that confirmation at another lab, by another method, was available to him, albeit at his 

expense. 

Courts likewise have accepted evidence that is out of step with some of Eaton’s other 

proposed requirements. While Eaton argues that only “professionally trained” staff in “regulated 

and certified laboratories” may perform urinalyses, Appellant’s Br. 8, this court and others have 

upheld testing that does not fit those descriptions, see, e.g., Knox Cty. Educ. Ass’n, 158 F.3d at 

385–86; Burka v. N.Y.C. Transit Auth., 739 F. Supp. 814, 831–32 (S.D.N.Y. 1990). That courts 

do not insist that other programs use the immunoassay test in other settings—say with 

professional staff in regulated labs—should come as no surprise. This is “a purely mechanical” 

test, one “requiring the operator to exercise no discretion, read no graphs and make no subjective 

interpretations” and one that is well-suited to a community drug-testing program. Peranzo v. 

Coughlin, 608 F. Supp. 1504, 1505 (S.D.N.Y. 1985). 
No. 15-5732 Eaton v. Lexington-Fayette Urban Cnty., et al. Page 8 

Eaton adds that the drug-testing program violated the Fourth Amendment because it 

lacked a “chain of custody” and a “tamper-proof custody seal.” Appellant’s Br. 8–9. That is not 

true. It requires samples to be labeled, sealed, and stored in specific ways. 

Even if we mine the record for all that might be marshaled to support Eaton’s position, 

just two facts (potentially) help Eaton. The first is that the American College of Pathologists 

“recommends” that its evaluations of this testing program “not be used as a sole criterion for 

judging the performance of any individual clinical laboratory.” R. 68-2 at 93. That fact may 

weaken Lexington’s argument that the program’s procedures are reasonable. But it does not 

show that its procedures are unreasonable. The second is that, in an affidavit that Eaton filed in 

the family court, he said he does not use drugs or alcohol. But the whole point of drug testing is 

to test such denials, not to accept them on faith. When it comes to reliability in this area, 

experience has shown that positive drug tests tend to be more reliable than positive denials by the 

subjects of the test. In the face of the abundant evidence suggesting that this drug-testing 

program strikes a reasonable balance between government interest and privacy intrusion, Eaton’s 

say-so cannot create a triable issue of fact. 

In the last analysis, Eaton appears to misunderstand what he had to do to respond to 

Lexington’s summary judgment motion. Eaton complains that, if there were a trial, he could 

show that the drug-testing program used “improper calibration settings of the [testing] 

equipment,” and he claims that he has “boxes of evidence accumulated.” Appellant’s Br. 21, 24. 

On top of that, he wants an opportunity to present to a jury “evidence, witness testimony and 

expert opinions.” Reply Br. 6. Problem is, that opportunity has come and gone. The point of 

summary judgment, “an integral part of the Federal Rules,” is to test before trial whether a trial is 

needed, whether, that is, each side has produced sufficient evidence to permit a reasonable jury 

to rule for it. Celotex, 477 U.S. at 327. If Eaton had the evidence, he should have introduced it 

in response to Lexington’s summary judgment motion. When he failed to do so, that entitled 

Lexington to summary judgment under time-tested principles established by Civil Rule 56. 

For these reasons, we affirm.