Opinion
CAUSE NO. IP02-0731-C-M/S
March 22, 2004
ORDER
Plaintiff, Kristin A. Greenawalt ("Plaintiff' or "Greenawalt"), initially filed this lawsuit against Defendants, Indiana Department of Corrections ("IDOC"), William K. Kromann ("Kromann"), and Kathy J. Lisby ("Lisby") (collectively "Defendants"), in Marion County (Indiana) Superior Court. Greenawalt advanced the following claims in her complaint: (1) invasion of privacy; (2) intentional infliction of emotional distress; and (3) § 1983 Fourth Amendment. Based on the federal claim, Defendants removed the case to this Court. The Court has jurisdiction pursuant to § 28 U.S.C. § 1331, 42 U.S.C. § 1983, and 28 U.S.C. § 1367.
The procedural disposition of this case requires some explnation. Although the discovery deadlines have passed, little to no discovery has been conducted in this case. No depositions have been taken, and neither party has filed a motion for summary judgment or a motion to dismiss. On October 22, 2003, shortly before the November 2003 trial date, Defendants filed a motion for judgment on the pleadings. The undersigned judge vacated the November 2003 trial date and re-set the jury trial for March 2004.
After a conference with Magistrate Judge Shields, the parties entered into a stipulation that resolved a number of the issues raised in the motion for judgment on the pleadings. One issue raised by the motion but not settled by the parties was whether the individual Defendants are entitled to qualified immunity and must be dismissed from the action. As the March 2004 trial date approached, the Court reviewed the case file and the parties' pre-trial submissions, and recognized that, if possible, the qualified immunity issue needed to be resolved prior to any trial on the merits. See Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 2156 (2001) ("[A] ruling on [the qualified immunity] issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive . . . The privilege is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. As a result, we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.") (internal quotations and citations omitted).
Mindful of the Supreme Court's instruction to rule on the qualified immunity issue inadvance of trial, the Court issued an order vacating the March 2004 trial date, and set a hearing for oral argument on the qualified immunity issue and other legal issues that could potentially be resolved before the trial. The Court also notified Greenawalt that it was considering a sua sponte dismissal or a sua sponte grant of summary judgment for the Defendants on some or all of Greenawalt's claims. See Goldstein v. Fidelity and Guar. Ins. Underwriters, Inc., 86 F.3d 749, 750 (7th Cir. 1996) ("The party against whom summary judgment is entered must have notice that the court is considering dropping the ax on [it] before it actually falls."). The Court allowed Greenawalt to submit a written brief on the legal issues prior to the hearing, and held the hearing on March 11, 2004. After hearing argument on the qualified immunity issue from both parties, the Court took the issue under advisement. Having considered the parties' oral and written arguments, the Court is now ready to rule on the matter. For the reasons stated below, the Court DISMISSES the § 1983 Fourth Amendment claim against the individual Defendants on the basis of qualified immunity.
I. BACKGROUND
The following are the well-pleaded factual allegations from the complaint, which the Court accepts as true for purposes of this motion. On December 10, 1998, Greenawalt began working as a research analyst in IDOC's Planning Division. Comp. ¶ 13. As a research analyst, Greenawalt was responsible for designing research methods and conducting research to identify and recommend options and alternatives for IDOC administrators to enable the IDOC administrators to determine efficient and cost-effective short-and long-term plans. Id. In addition, Greenawalt was required to stay abreast of national criminal justice trends and legislation, making necessary statistical comparisons to the State of Indiana, and informing key decision makers of significant trends, developments, and/or outcomes. Id. Greenawalt was also responsible for updating, maintaining, and running IDOC's population forecasting/projection model in conjunction with a national consultant. Id. Defendant Lisby was Greenawalt's immediate supervisor in the IDOC Planning Division. Id. ¶ 15.
On December 27, 2000, Defendant Kromann, IDOC's Human Resource Director, requested a meeting with Greenawalt concerning her continued suitability for employment. Id. ¶ 17. During the December 27, 2000, meeting, Kromann informed Greenawalt that she was required to submit to a psychologicalevaluationto determine whether she could continue her employment relationship with IDOC. Id. ¶ 18.
On December 28, 2000, Greenawalt took the required psychological evaluation. Id. ¶ 20. This evaluation consisted of an extensive two-hour diagnostic interview and administration of a battery of psychological tests. Id. The battery of psychological tests examined Greenawalt's personality traits, psychological adjustments, and health-related issues. Id. ¶ 21. In addition, psychological factors related to stress reactions were also examined. Id. In addition to examining Greenawalt's ability to perform the essential functions of the research analyst position, the testing also examined Greenawalt's personal life and personal relationships outside the employment setting. Id. The entire written evaluation and commentary was provided to the IDOC. Id. ¶ 23. Greenawalt requested the basis on which the demand for the evaluation was made, and no explanation was provided. Id. ¶ 24.
II. STANDARD
When ruling on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court accepts as true all well-pleaded factual allegations in the complaint and the inferences reasonably drawn from them. See Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 730 (7th Cir. 1994). Dismissal is appropriate only if it appears beyond doubt that Plaintiff can prove no set of facts consistent with the allegations in the complaint that would entitle it to relief. See Hi-Lite Prods. Co. v. Am. Home Prods. Corp., 11 F.3d 1402, 1405 (7th Cir. 1993). This standard means that if any set of facts, even hypothesized facts, could be proven consistent with the complaint, then the complaint must not be dismissed. See Sanjuan v. Am. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1995).
Further, Plaintiff is "not required to plead the particulars of [its] claim[s]," Hammes v. AAMCO Transmissions, Inc., 33 F.3d 774 (7th Cir. 1994), except in cases alleging fraud or mistake where plaintiffs must plead the circumstances constituting such fraud or mistake with particularity. See FED. R. CIV. P. 9(b); Hammes, 33 F.3d at 778. "Particularity" requires plaintiffs to plead the who, what, when, where, and how of the alleged fraud. See Ackerman v. Northwestern Mut. Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999); DiLeo v. Ernst Young, 901 F.2d 624, 627 (7th Cir. 1990).
Finally, the Court need not ignore facts set out in the complaint that undermine Plaintiff's claims, see Homeyer v. Stanley Tulchin Assoc., 91 F.3d 959, 961 (7th Cir. 1996) (citing Am. Nurses' Ass'n v. Ill., 783 F.2d 716, 724 (7th Cir. 1986)), nor is the Court required to accept Plaintiff's legal conclusions. See Reed v. City of Chi., 77 F.3d 1049, 1051 (7th Cir. 1996); Gray v. Dane County, 854 F.2d 179, 182 (7th Cir. 1988).
III. DISCUSSION A. STANDARD
In her written submission to the Court, Greenawalt argued that the correct standard at this juncture was the Rule 12(c) Motion to Dismiss standard. Doc. 97, n. 2. According to Greenawalt, "there is not a sufficient factual record upon which to grant summary judgment." Id. Greenawalt maintained this position at the hearing, Defendants agreed at the hearing that the motion to dismiss standard should govern, and the Court attempted to focus the hearing on whether or not the Defendants had qualified immunity based on the well-pleaded allegations in the complaint. Thus, the Court will decide the issue on the motion to dismiss standard.
While the Court recognizes the difficulty of making a qualified immunity ruling on a motion to dismiss, see Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000), it is appropriate in some circumstances. See Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 621 (7th Cir. 2002) (affirming dismissal of § 1983 due process claim because state officials did not have fair warning that their conduct violated the clearly established rights of plaintiffs); Spiegel v. City of Chicago, 106 F.3d 209, 212 (7th Cir. 1997) (affirming dismissal of § 1983 Fourth Amendment claims on qualified immunity defense where alleged conduct did not violate clearly established constitutional or statutory right); Kernats v. O'Sullivan, 35 F.3d 1171, 1183 (7th Cir. 1994) (affirming dismissal of § 1983 Fourth Amendment claim due to qualified immunity).
B. QUALIFIED IMMUNITY
"Qualified immunity protects government officials from civil liability when performing discretionary functions so long as `their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Alvarado v. Litscher, 267 F.3d 648, 652 (7th Cir. 2001) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2338 (1982)). When a court evaluates a qualified immunity defense, it must engage in a two-step analysis: first, the court must determine whether the alleged conduct violated a constitutional right; and second, whether that constitutional right was clearly established by law at the time of the alleged violation. See Burns v. Reed, 44 F.3d 524, 526 (7th Cir. 1995). If the answer to both questions is affirmative, then the individual defendants do not have qualified immunity.1. Did the Psychological Exam Violate the Fourth Amendment?
The gravaman of Greenawalt's complaint is that the psychological exam that Defendants required her to take constituted an unreasonable search under the Fourth Amendment. The Fourth Amendment provides that the federal government shall not violate "[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . " U.S. CONST, amend. IV. The Fourth Amendment applies to the states through the Fourteenth Amendment. See Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 1441-42 (1985).
Greenawalt's Fourth Amendment claim turns on two questions: (1) whether or not a psychological exam can be considered a search subject to the strictures of the Fourth Amendment; and (2) if the exam was a search, whether or not the search was reasonable under the circumstances. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402 (1989). Medical exams and tests are generally subject to a balancing test, withthe court weighing an individual's privacy interests against the government's interest in the search. See Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 2391 (1995). During oral argument, counsel for Greenawalt focused on the degree of intrusiveness of the examination. Defendants, on the other hand, emphasized the strength of the government's interest in maintaining a productive and efficient penological work force and the government interest in preempting workplace violence.
Based solely on the allegations of the complaint, it is difficult to determine whether or not Defendants' conduct violated Greenawalt's Fourth Amendment rights. Fourth Amendment claims require a fact-intensive analysis and facts outside of the complaint are usually relevant to the inquiry. For example, the complaint does not address IDOC's justification for the exam, or provide specific details about the substance of the exam, or detail how much interaction Greenawalt had with inmates, and those issues are relevant to the Fourth Amendment analysis. However, Greenawalt is not required to plead the particulars of her claim. In addition, psychological exams can reveal a host of private medical facts and personal issues. Thus, the Court concludes that Greenawalt may be able to prove a set of facts consistent with the complaint that could implicate the Fourth Amendment. This conclusion does not end the immunity inquiry. The Court must now consider the clarity of this issue in light of legal precedent to determine whether the individual Defendants are entitled to qualified immunity.
2. Was the Constitutional Right Clearly Established ?
Assuming that Greenawalt has alleged a violation of a constitutional right, she must also establish that the constitutional right was clearly established at the time of the alleged violation. See Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). With regard to this step, the Seventh Circuit has explained:
To determine whether a right is clearly established, we look first to controlling Supreme Court precedent and our own circuit decisions on the issue. In the absence of controlling precedent, we broaden our survey to include all relevant caselaw in order to determine whether there was such a clear trend in the caselaw that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time. In some rare cases, where the constitutional violation is patently obvious, the plaintiffs may not be required to present the court with any analogous cases, as widespread compliance with a clearly apparent law may have prevented the issue from previously being litigated.Jacobs, 215 F.3d at 767 (internal quotations and citations omitted). The burden is on Greenawalt to establish the existence of a clearly established constitutional right. See Donovan, 17 F.3d at 951.
During oral argument, counsel for Greenawalt admitted that there is "not a plethora" of case law on whether or not a psychological examination in the employment setting could constitute an unreasonable search under the Fourth Amendment. To say that there is "not a plethora" of case law on the issue is an understatement. Neither Greenawalt nor Defendants has found a single case that holds that a psychological exam constitutes a search under the Fourth Amendment. In addition, the Court's own research has not revealed any cases on point.
This deficiency is not fatal by itself. See Kernats, 35 F.3d at 1177. Greenawalt can overcome the lack of precedent by analogizing to parallel cases that show "such a clear trend . . . that [courts] can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time." Jacobs, 215 F.3d at 767. Unfortunately for Greenawalt, there does not appear to be any trend that indicates that courts will soon recognize that an employer-required psychological exam constitutes a search for purposes of the Fourth Amendment. In addition, as noted by Defendants, it is often difficult to say that the law is "clearly established" in cases like this one that entail a fact-intensive balancing test. See, e.g., Benson v. Allphin, 786 F.2d 268, 276 (7th Cir. 1986), superceded on other grounds (due to the case-by-case, fact-specific nature of a balancing test, it will be rare that the law in the area can be considered "clearly established.").
Of the few reported cases involving constitutional claims based on psychological exams, plaintiffs have not met with success, regardless of which constitutional provision is invoked. In Flynn v. Sandahl, 58 F.3d 283 (7th Cir. 1995), for example, the plaintiff, an Illinois Department of Corrections employee, argued that an employer-requested psychiatric examination violated his due process rights and his right to privacy. See id. at 286. The Seventh Circuit rejected both arguments and affirmed summary judgment in favor of the defendant. See id. at 290. With regard to the right to privacy argument, the court concluded that the defendant's penological interest in maintaining a stable prison force justified the test. See id. The court did not address whether the exam violated the plaintiffs privacy rights. See id. See also Daury v. Smith, 842 F.2d 9 (1st Cir. 1988) (requiring a teacher to submit to a psychiatric exam is justified where the school has reason to believe that teacher poses a threat to students under his supervision).
Two unreported district court cases within the Seventh Circuit also cast doubt on Greenawalt's position. See Goerlich v. Davis, 1991 WL 195772, *4 (N.D. Ill.) ("Questions, however unfriendly, do not constitute an unreasonable search and seizure under the Fourth Amendment."); Jones v. Elrod, 1987 WL 12701, *5 (N.D. Ill.) (rejecting claim that psychiatric evaluation constituted unlawful search or seizure in the law enforcement setting).
Counsel for Greenawalt also analogized to case law holding that taking urine samples and blood samples can constitute Fourth Amendment searches. In the Court's view, it is no small leap to go from the precedent that clear invasions of privacy like taking a blood sample or urine sample are Fourth Amendment searches to the conclusion that an employer-required, two-hour diagnostic psychological test is a search. One major distinguishing characteristic between the urine sample and blood sample cases and the instant case is that the former dealt with clear physical intrusions of a person.
For example, in Skinner, 489 U.S. at 616-17, 109 S.Ct. at 1413-14, where the Supreme Court concluded that state-compelled collection and testing of urine constituted a search for purposes of the Fourth Amendment, Justice Kennedy explained:
We have long recognized that a "compelled intrusio[n] into the body for blood to be analyzed for alcohol content" must be deemed a Fourth Amendment search. See Schmerber v. California, 384 U.S. 757, 767-768, 86 S.Ct. 1826, 1833-1834, 16 L.Ed.2d 908 (1966). See also Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985). In light of our society's concern for the security of one's person, see, e.g., Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968), it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee's privacy interests. Cf. Arizona v. Hicks, 480 U.S. 321, 324-325, 107 S.Ct. 1149, 1152-1153, 94 L.Ed.2d 347 (1987). Much the same is true of the breath-testing procedures required under Subpart D of the regulations. Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or "deep lung" breath for chemical analysis, see, e.g., California v. Trombetta, 467 U.S. 479, 481, 104 S.Ct. 2528, 2530, 81 L.Ed.2d 413 (1984), implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search, see 1 W. LaFave, Search and Seizure § 2.6(a), p. 463 (1987). See also Burnett v. Anchorage, 806 F.2d 1447, 1449 (CA9 1986); Shoemaker v. Handel, 795 F.2d 1136, 1141 (CA3), cert. denied, 479 U.S. 986, 107 S.Ct. 577, 93 L.Ed.2d 580(1986).
Id. In contrast to the state-compelled blood tests, urine tests, or breathalyzer tests in the above-cited cases, the instant situation does not involve any physical intrusion. While a psychological exam does implicate privacy concerns, the Court cannot say with fair assurance that it is simply a matter of time before higher courts extend the holdings of cases like Schmerber and Skinner to reach plaintiffs in Greenawalt's circumstances. See Elliot v. Thomas, 937 F.2d 338, 341 (7th Cir. 1991) ("The defense of qualified immunity . . . gives public officials the benefit of legal doubt"). In addition, this is not a situation where the conduct was so patently violative of a constitutional right that any reasonable state official would know it without legal guidance. See Kernats, 35 F.3d at 1176 (noting that citation to case law is not necessary where the constitutional violation is obvious). Accordingly, the Court concludes that the constitutional right in this case was not "clearly established" at the time of the alleged violation. The Court DISMISSES the Fourth Amendment claim against the individual Defendants on the basis of qualified immunity.
C. JURISDICTION
The only federal claim remaining in this case is a § 1983 claim for injunctive relief against IDOC. The Court's qualified immunity analysis applied only to the individual Defendants and had no bearing on the claim against IDOC. See Flynn v. Sandal, 58 F.3d 283, 289 (7th Cir. 1995) ("Qualified immunity only shields defendants in their individual capacity from money damages."). However, IDOC, an arm of the State of Indiana, see Hughes v. Joliet Correctional Center, 931 F.2d 425, 427 (7th Cir. 1991), is not a "person" that can be sued under § 1983. See Will v. Michigan Department of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308 (1989). See also Illinois Ass'n of Mortgage Brokers v. Office of Banks and Real Estate, 308 F.3d 762, 765 (7th Cir. 2002) (dismissing state agency/defendant in § 1983 suit for prospective injunctive relief because the state is not a "person" for purposes of § 1983). Accordingly, the Court DISMISSES Greenawalt's § 1983 claim for injunctive relief against IDOC.
Because the Court has dismissed all of Greenawalt's federal claims, original jurisdiction is now lacking and the Court may — pursuant to 28 U.S.C. § 1367(c)(3) — properly dismiss Greenawalt's remaining state law claims. "In an ordinary case of supplemental jurisdiction, the presumption is in favor of relinquishment when the claim that is within the original jurisdiction of the district court was dismissed before trial." See also Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995). Brazinski v. Amoco. Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993). The Court chooses to exercise its discretion under 28 U.S.C. § 1367(c)(3), and hereby DISMISSES without prejudice Greenawalt's state law claims.
IV. CONCLUSION
For the reasons stated herein, the Court DISMISSES the § 1983 claim against the individual Defendants because they have qualified immunity. In addition, the Court DISMISSES the § 1983 claim against IDOC because a state agency like IDOC is not a "person" that may be sued under § 1983. Due to this disposition of the federal claims, the Court now lacks original jurisdiction over the remaining state claims. Accordingly, the Court DISMISSES without prejudice the state law claims.