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Carr v. Lewis

filed*fn*: April 12, 1994.

ANTHONY GLEN CARR, PLAINTIFF-APPELLANT,
v.
SAMUEL A. LEWIS, DIRECTOR, ADOC; J. C. KEENEY, ASSISTANT DIRECTOR OF ADULT INSTITUTIONS ADOC; JOE MARTINEZ, DEPUTY WARDEN, SOUTH UNIT, ADOC; APRIL ROBINSON, CORRECTIONAL PROGRAM SUPERVISOR, SOUTH UNIT, ADOC; MARVIN JUMP, CORRECTIONAL PROGRAM OFFICER, SOUTH UNIT, ADOC; CLYDE ADAIR, CORRECTIONAL PROGRAM OFFICER, SOUTH UNIT, ADOC; C. W. SMITH, SECURITY LIEUTENANT, SOUTH UNIT, ADOC; ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Arizona. D.C. No. CV-90-01042-EHC. Earl H. Carroll, District Judge, Presiding

Before: Poole, Beezer, and T.g. Nelson, Circuit Judges.

MEMORANDUM

Anthony Glen Carr, an Arizona state prisoner, appeals pro se the district court's judgment on the pleadings in favor of defendants in Carr's 42 U.S.C. § 1983 action alleging that defendants violated his Fourth and Fifth Amendment rights by punishing him for refusing to submit to urinalysis drug testing. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

I

Background

In his complaint and opposition to defendants' motion for judgment on the pleadings, Carr alleged that the prison officials' random urinalysis testing constituted an unreasonable search under the Fourth Amendment. He also asserted that his due process rights were violated because (1) the urinalysis tests employed by the prison are unreliable, (2) prison officials refused to allow him to call the test operator as a witness at his disciplinary hearing, (3) he was denied access to literature pertaining to the reliability of the tests employed, (4) he was not afforded a proper disciplinary hearing as defined by Arizona prison regulations, (5) he was sanctioned for refusing to take the urinalysis test even though he had never been ordered to take it, and (6) he was subjected to future criminal prosecution as a result of the test.

II

Merits

A. Standard of Review

"A judgment on the pleadings is a decision on the merits and we review it de novo." General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989), cert. denied, 493 U.S. 1079, 107 L. Ed. 2d 1039, 110 S. Ct. 1134 (1990). A motion for judgment on the pleadings is proper "when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). "All allegations of fact by the party opposing the motion are accepted as true, and are construed in the light most favorable to that party." General Conference, 887 F.2d at 230.

B. Standing

Defendants contend that Carr lacks standing to bring a number of his claims. We agree.

To establish standing, a plaintiff must demonstrate that (1) a distinct and concrete actual or threatened injury to the plaintiff, (2) traceable to the defendants allegedly illegal conduct, (3) is likely to be redressed by the requested relief. National Wildlife Fed. v. Burford, 871 F.2d 849, 852 (9th Cir. 1989); Darring v. Kincheloe, 783 F.2d 874, 876-77 (9th Cir. 1986).

Carr did not submit to the urinalysis test and, consequently, no evidence was gathered through testing which could be used against him. Thus, Carr lacks standing to bring claims based upon the alleged unreliability of the testing procedure or to bring self-incrimination claims based upon speculation that, in the future, positive test results might be used by prosecutors as evidence against him. See Darring, 783 F.2d at 877 (to establish standing ...


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