Franklin Hassell v. CITY OF CHESAPEAKE, VIRGINIA, a municipal Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANKLIN HASSELL,
Plaintiff-Appellant,
v.
CITY OF CHESAPEAKE, VIRGINIA, a
municipal Corporation,
Defendant-Appellee,
No. 99-2304
and
ELAINE MORIN, individually and in
her official capacity as a supervisor
with the City of Chesapeake's
Tidewater Detention Home,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-98-736-2)
Submitted: July 27, 2000
Decided: September 18, 2000
Before MURNAGHAN* and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
*Judge Murnaghan participated in the consideration of this case but
died prior to the time the decision was filed. The decision is filed by a
quorum of the panel pursuant to 28 U.S.C. section 46(d).

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Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Andrew M. Sacks, SACKS & SACKS, Norfolk, Virginia, for Appel-
lant. T. Jeffrey Salb, Darlene P. Bradberry, BREEDEN, MACMIL-
LAN & GREEN, P.L.C., Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Franklin Hassell appeals the district court's entry of summary judg-
ment in favor of the City of Chesapeake in this 42 U.S.C.A. § 1983
(West Supp. 2000) action. We affirm.
While employed by Chesapeake's juvenile detention center, Has-
sell was ordered to undergo drug testing based on a report from a co-
worker, although administrators in Hassell's department found the
report unsubstantiated. The district court ruled that Chesapeake was
not liable for this order because it was not the product of a municipal
custom or policy. We agree. Hassell was tested pursuant to an exer-
cise of discretion, not a declaration of municipal policy. See Greens-
boro Prof'l Fire Fighters Ass'n, Local 3157 v. City of Greensboro,
64 F.3d 962, 965-66 (4th Cir. 1995). Furthermore, there is no evi-
dence that Chesapeake agencies customarily test their employees in
similar circumstances or that city policymakers are aware of such a
custom. See Spell v. McDaniel, 824 F.2d 1380, 1386-87 (4th Cir.
1987). Accordingly, even if a constitutional violation occurred in this
case (which we do not decide), Chesapeake may not be held liable for
it. See Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978).
2

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For the foregoing reasons, we affirm the entry of summary judg-
ment in favor of Chesapeake. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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