direct observation of Hansen's urination by a female medical technician. Hansen objected to the direct observation, and stated to Kim that a union representative had told her that she would not be subject to direct frontal observation of urination. Kim Dep. at 29. Kim ordered Hansen to undergo the testing under direct observation, and Hansen's urination was directly observed by a female monitor. DSO PP 13-17.
After the first drug test, Hansen discussed her objection to the direct observation, as well as other concerns about the drug testing procedure, with a union representative. The union representative discussed Hansen's objections with Vasquez, the warden. Rafferty Decl. at 2. Vasquez communicated with a superior, CDC's acting regional administrator, who told him that CDC policy requires direct frontal observation. Vasquez Dep. at 19-20, 45. The record before us does not disclose what, if anything, Vasquez did with this information. We have not seen evidence, for example, that Vasquez then communicated to Russell and/or Kim that they were to make sure that direct observation remained a part of the testing of plaintiff.
After the first drug test, Kim and Russell discussed (with one another) Hansen's objections to direct observation, but did not consider making an attempt to have the direct observation policy changed. Russell Dep. at 39-40. Hansen underwent additional drug tests on April 5, May 26, July 12, and August 19, 1994. DSO P 22. In each of these drug tests, Hansen's urination was directly observed by a female monitor. DSO P 23.
Vasquez, Russell, and Kim each testified in depositions that CDC policy requires direct observation of urination during drug testing of employees. PRD PP 25, 36. Each of these three defendants also testified that their implementation of the drug testing procedures used on Hansen was in accordance with that policy. PRD P 36. Each of the three also testified that they believed that a written policy exists which requires direct observation. Kim Dep. at 34-38; Russell Dep. at 18; Vasquez Dep. at 17.
No written policy about direct observation has been presented to this court; we do not know whether defendants have turned over such a policy to plaintiff. There is evidence in the record suggesting that, at the time of the events at issue, there was a statewide California Department of Personnel Administration (DPA) policy requiring direct observation of urination during employee drug testing. See Russell Dep. at 18.
Vasquez testified that the direct observation policy was probably communicated to him some time before Hansen's drug testing began. Vasquez Dep. at 17. Vasquez testified that the drug testing of Hansen was conducted under his authority. Vasquez Dep. at 36. Plaintiff and defendants agree that Vasquez and CDC director Gomez are responsible for implementing the policies of the CDC. DRP P 5. However, there is no evidence in the record that Vasquez ever directly instructed Russell or Kim that CDC policy requires direct observation of employee urine testing or that direct observation should be used when testing Hansen. In addition, Gomez's deposition has not been taken, and there is no evidence in the record as to whether Gomez played a role in the formulation of the direct observation policy or whether Gomez only implemented a policy set by the DPA.
In October of 1994 Hansen filed a complaint for damages and injunctive relief against CDC, Gomez, Vasquez, Russell, Kim, and another defendant who has since been dismissed from the suit. The complaint names Gomez, Vasquez, Russell, and Kim in both their official and their individual capacities. The complaint contains seven claims: (1) a damages claim under 42 U.S.C. § 1983 (1988) based on an unlawful search; (2) a damages claim under 42 U.S.C. § 1983 based on a violation of the federal constitutional right to bodily privacy; (3) a damages claim under 42 U.S.C. § 1983 based on failure to train or supervise; (4) a damages claim under California law based on a violation of the California Constitution's right to privacy; (5) a California common-law intentional infliction of emotional distress claim; (6) a California common-law negligent infliction of emotional distress claim; and (7) a request for temporary and permanent injunctive relief.
In October 1994, District Judge Robert P. Aguilar issued a temporary restraining order prohibiting direct visual observation of Hansen's urination during drug testing. Hansen v. California Department of Correction, 868 F. Supp. 271, 274 (N.D. Cal. 1994). In December 1994, the parties stipulated to a preliminary injunction prohibiting visual observation of Hansen's urination. In July 1995, the case was reassigned to District Judge Eugene F. Lynch. With the parties' consent, the case was reassigned to this court in August of 1995.
In November of 1995 defendants filed a motion for summary judgment, and plaintiff filed a cross-motion for partial summary judgment. Defendants argue that summary judgment should be granted to them on Hansen's federal claims on the grounds of qualified immunity, or, alternatively, because the federal claims are substantively without merit. Defendants also argue that California statutory immunity law bars Hansen's California law claims. Defendants further contend that the Eleventh Amendment bars Hansen's claims against the individual defendants in their official capacities, as well as Hansen's California law claims against CDC. In addition, defendants contend that the Eleventh Amendment and California statutory law bar a punitive damages claim by Hansen against CDC. Finally, defendants argue that Hansen's claim for injunctive relief is moot.
Hansen moves for summary judgment on the issue of liability on each of her three federal claims. She also moves for summary judgment on the issue of liability on her California law privacy claim.
IV. FEDERAL LAW CLAIMS
A. Qualified Immunity Law -- Generally
1. Is the Defense of Qualified Immunity Potentially Available to All Four of the Individual Defendants?
Under the doctrine of qualified immunity "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). According to Foster v. McGrail, 844 F. Supp. 16, 23 (D. Mass. 1994), "precedents . . . support a . . . meaning for 'discretionary function' that includes not only a high level decision formulating a directive but also lower level administration of the directive, at least when some discretion must be exercised in the administration and enforcement."
In this case, however, the record indicates that defendants Vasquez, Russell, and Kim did not exercise any discretion in requiring direct observation of Hansen's urine test, but were merely following a policy set at a higher level. The record is silent about whether defendant Gomez exercised any discretion in requiring direct observation during all CDC employee drug testing or whether he only implemented a policy handed down to him by the DPA.
We believe that the correct rule of law in such a situation is that a public official should be immune from liability for non-discretionary acts performed in good faith pursuant to a policy instituted by higher authorities unless a reasonable official would have known that the policy was unconstitutional. Two published opinions support this proposition.
In Gonzalez v. Tilmer, 775 F. Supp. 256, 258 (N.D. Ill. 1991), a police officer detained a suspect for forty-eight hours without a determination of probable cause. A general order of the city police department permitted such long detention under the circumstances at issue. Id. at 265. Though the police department's policy was later declared unconstitutional, the court granted immunity to the police officer. Id. at 265-66. The court explained that "an officer who is following a statute or administrative rule should generally be accorded qualified immunity for his actions unless a reasonable officer should have known that the law or rule in question was unconstitutional." Id. at 266 (citing Richardson v. Bonds, 860 F.2d 1427, 1432 (7th Cir. 1988)).
In Pray v. City of Sandusky, 49 F.3d 1154 (6th Cir. 1995), a city police department policy required police officers executing a warrant to secure the premises being searched by placing all occupants on the floor. While the majority opinion did not address the impact of the policy in deciding the immunity issues raised in that case, a concurring judge stated that "the officers are entitled to immunity for all their non-discretionary acts performed in good faith pursuant to the policy." Id. at 1161 (Batchelder, J., concurring) (citing Kentucky v. Graham, 473 U.S. 159, 166-67, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985)).
These opinions are supported by the common-sense notion that, absent some assured statutory protection from another source, it would be unfair to subject an official to liability for following orders or policies which he has no authority, under the terms of his employment, to alter or ignore -- unless, of course, a reasonable official should have known that the orders or policies offended established law. Moreover, exposing officials to liability in such situations could give them incentives not to follow directives given by superiors. This would be bad public policy because it could hamper the smooth and effective operation of government. Cf. Scheuer v. Rhodes, 416 U.S. 232, 241-42, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) ("public officials . . . who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices") (emphasis added).
For these reasons, we hold that all four individual defendants are immune if a reasonable official would not have known that applying the direct observation policy in the circumstances of this case would violate clearly established law.
2. What Does the Phrase "Clearly Established" Mean in This Setting?