Glaspy Case Continued
Conclusions of Law
[1] Glaspy claims that Malicoat violated his substantive due process rights by refusing to permit him to use the restroom after Williams and Glaspy informed Malicoat that Glaspy was in pain and his need to use the restroom was urgent. In order to succeed on his claim, Glaspy must show *894 that: (1) Malicoat deprived him of a right secured by the Constitution or laws of the United States; and (2) Malicoat was acting under color of state law. See Perry v. McGinnis, 209 F.3d 597, 603 (6th Cir.2000); Huron Valley Hosp., Inc. v. City of Pontiac, 887 F.2d 710, 714 (6th Cir.1989) (stating that "ection 1983 authorizes the courts to redress violations of 'rights, privileges, or immunities secured by the Constitution and [federal] laws' that occur under color of state law") (quoting 42 U.S.C. § 1983) (alteration in original). There is no dispute that Malicoat was acting under color of state law while on duty at the visiting room of the Facility. Thus, the only question is whether Malicoat violated Glaspy's constitutional rights.
[2] [3] Glaspy contends that Malicoat's actions violated his rights under the substantive due process component of the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment provides: "[N]or shall any State deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. The Due Process Clause has two components, one procedural and the other substantive. See Seal v. Morgan, 229 F.3d 567, 574 (6th Cir.2000). The procedural component governs procedures by which the State may deprive a person of life, liberty, or property. See id. The substantive due process component is not concerned with whether procedures were followed, but rather "bar certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). Substantive due process encompasses, in addition to those rights expressly set forth in the Bill of Rights, "fundamental rights implicit in the concept of ordered liberty, and deeply rooted in this Nation's history and tradition." Kallstrom v. City of Columbus, 136 F.3d 1055, 1060 (6th Cir.1998) (citations and internal quotations omitted) (alteration in original).
In Seal, the Sixth Circuit observed that fundamental rights subject to protection from arbitrary governmental action include: "the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, to terminate one's pregnancy, and possibly the right to refuse unwanted lifesaving medical treatment." Seal, 229 F.3d at 574-75 (citing Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772 (1997)). Neither party has cited a case specifically holding or suggesting that the opportunity to urinate constitutes a fundamental right, although Malicoat does not dispute that it does. In West v. Dallas Police Department, No. Civ. A. 3- 95CV-1347P, 1997 WL 452727 (N.D.Tex. July 31, 1997), the plaintiff alleged that the defendants violated his constitutional rights by, among other things, refusing to allow him access to the restroom at a jail while he was a pretrial detainee. In addressing the defendants' motion for summary judgment based on qualified immunity, the court began its analysis by noting that because the plaintiff was a pretrial detainee, his claim was properly analyzed under the Due Process Clause of the Fourteenth Amendment rather than under the Eighth Amendment. See id. at *4. The court then examined whether the alleged right at issue, which the court characterized as the right to urinate or defecate in reasonable privacy, was clearly established. The court concluded that such a right is protected under the Fourteenth Amendment:
Indeed, there are few activities that appear to be more at the heart of the liberty guaranteed by the Due Process Claus of the Fourteenth Amendment than the right to eliminate harmful wastes from one's body away from the *895 observation of others.... the United States Supreme Court has held that the personal, intimate nature of other activities necessitates their protection from unnecessary governmental interference; there is certainly nothing to indicate that an activity as basic and private as urination should not be included as a part of that framework.
Id. at *6 (footnote omitted) (citing, among others, Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147 (1973)). In addition, the court reasoned that the ability to urinate could also be characterized as a fundamental right protected by the Fourteenth Amendment either as part of a pretrial detainee's right to not to be subjected to punishment without due process or as part of the pretrial detainee's basic human needs the government is required to protect. Id. (citing Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991)).
This Court finds the court's reasoning in West applicable in this case. Even though Glaspy was not a pretrial detainee, while he was a visitor in the Facility his freedom was restrained in a manner similar to the restraints on a prisoner's freedom. As seen from the facts above, Glaspy was not free to do as he pleased when he felt the need to urinate. He could not leave the Facility and he was required to obtain permission from the officer in charge of the desk; restroom facilities were not readily available and when Glaspy would be permitted to use them was left completely to prison officials. Thus, under these conditions, the Court concludes that the ability/opportunity to urinate, being a matter of bodily integrity, is a fundamental right subject to due process protection. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 200, 109 S.Ct. 998, 1006, 103 L.Ed.2d 249 (1989) ("In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf--through incarceration, institutionalization, or other similar restraint of personal liberty--which is the 'deprivation of liberty' triggering the protections of the Due Process Clause").
Having concluded that Glaspy had a fundamental right to urinate, the Court must still answer the question of whether Malicoat's actions involved "the exercise of power without any reasonable justification in the service of a legitimate governmental objective." County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043 (1998). In Lewis, the Court held that when a substantive due process claim is based upon the specific act of a government official, the abuse of governmental power must rise to the conscience-shocking level, typically characterized as deliberate indifference to a citizen's constitutional rights. See id. at 846-50, 118 S.Ct. at 1717-18. The particular issue in Lewis was whether a police officer's actions during a high-speed chase, without an intent to cause harm to the suspect, could give rise to a substantive due process violation. In answering the question in the negative, the Court observed that whether deliberate indifference "shocks" is largely dependant upon the factual setting. The Court noted that in the pretrial custody/prison context, prison officials are normally afforded a reasonable opportunity to give forethought to prisoners' welfare without also being required to give concurrent consideration to another "countervailing interest." Id. at 851, 118 S.Ct. at 1719. Thus, where there is an opportunity to deliberate, the deliberate indifference standard is appropriate. See id. at 850-52, 118 S.Ct. at 1718-19. On the other hand, where circumstances do not allow for an opportunity to deliberate, as in circumstances involving a prison riot, a higher standard of fault-- requiring a showing of intent to do harm, i.e., malicious or sadistic behavior--is appropriate. Id. at 852-54, *896 118 S.Ct. at 1719-20. The Court concluded that such a higher standard of culpability is required in the high speed chase setting because the circumstances are analogous to those of a prison riot:
Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made "in haste, under pressure, and frequently without the luxury of a second chance." A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to all those within stopping range, be they suspects, their passengers, other drivers, or bystanders.
Id. at 853, 118 S.Ct. at 1720 (quoting Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986)) (citations omitted).
