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MELVIN E. JERMON and SONOMA COUNTY ORGANIZATION OF PUBLIC AND PRIVATE EMPLOYEES SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 707 AFL-CIO Plaintiffs
vs.
COUNTY OF SONOMA COMMUNITY HOSPITAL LARRY CALDWELL and DONNA ELLIOTT Defendants.
 
Case:
No. C 96-0340 FMS
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
 
Date:
January 31, 1997 Decided
 
Attorneys:
For MELVIN E. JERMON Plaintiff: Victor C. Thuesen Kerstin Molinder Victor C. Thuesen Law Offices Petaluma CA. Michael T. Healy Petaluma CA. For SONOMA COUNTY ORGANIZATION OF PUBLIC & PRIVATE EMPLOYEES Plaintiff: Victor C. Thuesen (See above) Kerstin Molinder (See above). For SERVICES EMPLOYEES INTERNATIONAL UNION LOCAL 707 AFL-CIO Plaintiff: Victor C. Thuesen (See above) Kerstin Molinder (See above).
For COUNTY OF SONOMA defendant: Karin P. Beam Spaulding & McCullough Santa Rosa CA. For COMMUNITY HOSPITAL defendant: Karin P. Beam (See above). For LARRY CALDWELL defendant: Karin P. Beam (See above). For DONNA ELLIOTT defendant: Karin P. Beam (See above).
 
Court:
FERN M. SMITH United States District Court
 
Author:
The Hon. Justice Fern M. Smith
 

INTRODUCTION

Pending before Court is individual defendants' Larry Caldwell ("Caldwell") and Donna Elliot ("Elliot") (collectively "defendants") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or in the alternative for summary judgment. *fn1 Defendants contend that plaintiff Melvin E. Jermon's ("plaintiff" or "Jermon") First Amended Complaint ("Complaint") should be dismissed on the grounds of both federal and state immunity. These motions require Court to determine whether plaintiff's complaint and the other evidence proffered allege facts upon which his claims for relief could be supported against these defendants.

BACKGROUND

Plaintiff Jermon *fn2 is a black man who was employed as a janitor at Community Hospital during the time period relevant to this action. On January 23 1995 plaintiff reported to work and proceeded to lock himself in the employee break room. (Dfts.' Motion at 3.) Plaintiff alleges he did so because he was ill and unable to work. (Complaint P 12.) Elliot was the House Supervisor on duty that night; after she became aware that plaintiff had been in the employee break room for several hours Elliot alerted Caldwell plaintiff's direct supervisor. Caldwell arrived at the Hospital to assist Elliot in handling the situation. (Dfts.' Motion at 3.) Defendants entered the locked employee break room and found plaintiff asleep and difficult to rouse. (Dfts.' Motion at 4.) At that point defendants either directed (Complaint P 12) or asked (Dfts.' Motion at 4) plaintiff to take a "fitness for duty" examination which included having his urine and blood tested in the emergency room of Community Hospital. The results of the tests were negative for alcohol or drugs and plaintiff was eventually diagnosed as having gastroenteritis. (Complaint P 12; Dfts.' Motion at 4.)

Plaintiff alleges that he was directed to submit to the urine and blood testing "as a condition of continued employment" and that plaintiff only submitted to the testing "because he was directed to do so." (Complaint P 12.) Defendants contend that Dr. Landman the Emergency Room doctor who examined and tested plaintiff explained the entire situation to plaintiff and that plaintiff "willingly gave his consent for the blood draw." (Dfts.' Motion at 4.) Defendants also dispute that plaintiff was directed to submit to the testing as a condition of continuing employment. (Dfts.' Motion at 5.) *fn3

Plaintiff alleges the following five causes of action all of which focus on his submission to the urine and blood testing:

1. Invasion of Privacy - 42 U.S.C. SEC. 1983. Plaintiff's First Cause of Action is for unlawful invasion of privacy in violation of the Fourth Amendment to the United States Constitution. Plaintiff requests general and special damages as well as injunctive relief to prohibit defendants from engaging in blood and/or urine testing of Community Hospital employees.

2. Race Discrimination - 42 U.S.C. SEC. 1983. Plaintiff's Second Cause of Action charges that defendants discriminated against plaintiff because of his race thereby violating his right to equal protection of the laws and depriving him of other unspecified constitutional rights.

3. Conspiracy - 42 U.S.C. SEC. 1985. Plaintiff's Third Cause of Action alleges that defendants conspired to discriminate against plaintiff and deprive him of his right to privacy.

4. Invasion of Privacy - State Law. Plaintiff's Fourth Cause of Action is for invasion of privacy in violation of Article 1 SEC. 1 of the California Constitution.

5. Battery - State Law. Plaintiff's Fifth Cause of action alleges that defendants committed battery against plaintiff when they "caused a needle to be placed into and draw blood from plaintiff's body" without his consent.

6. Injunctive Relief for Invasion of Privacy - 42 U.S.C. SEC. 1983. SCOPE brings the Sixth Cause of Action seeking to enjoin the "custom pattern and practice of subjecting employees represented by SCOPE to blood and urine testing as a condition of continued employment."

7. Injunctive Relief for Invasion of Privacy -- State Law. SCOPE brings the Seventh Cause of Action seeking injunctive relief for invasion of privacy in violation of Article I SEC. 1 of the California Constitution.

Defendants seek to dismiss plaintiff's complaint on the basis that they are immune from liability for their actions.

DISCUSSION

I. Legal Standards

A. Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. North Star Int'l v. Arizona Corp. Comm'n 720 F.2d 578 581 (9th Cir.1983). "The accepted rule is that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson 355 U.S. 41 45-46 2 L. Ed. 2d 80 78 S. Ct.99 (1957); Jenkins v. Commonwealth Land Title Ins. Co. 95 F.3d 791 796-97 (9th Cir.1996).

In reviewing defendants' 12(b) (6) motion Court must assume all factual allegations in plaintiff's complaint to be true and must construe them in the light most favorable to plaintiff. North Star 720 F.2d at 580. Court must also draw all reasonable inferences from plaintiff's factual allegations but Court "need not accept as true unreasonable inferences unwarranted deductions of fact or conclusory legal allegations cast in the form of factual allegations." Bureerong v. Uvawas 922 F. Supp.1450 1462 (C.D. Cal. 1996) (citing Western Mining Council v. Watt 643 F.2d 618 624 (9th Cir.) cert. denied 454 U.S. 1031 70 L. Ed. 2d 474 102 S. Ct.567 (1981)).

B. Summary Judgment

To withstand a motion for summary judgment the opposing party must set forth specific facts showing that there is a genuine issue of material fact in dispute. Fed. R. Civ. P. 56(e). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby Inc. 477 U.S. 242 248 91 L. Ed. 2d 202 106 S. Ct.2505 (1986). If the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial "the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett 477 U.S. 317 323 91 L. Ed. 2d 265 106 S. Ct.2548 (1986).

In opposing summary judgment plaintiff is not entitled to rely on the allegations of his complaint. He "must produce at least some 'significant probative evidence tending to support the complaint.'" T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n 809 F.2d 626 630 (9th Cir.1987) (quoting First Nat'l Bank v. Cities Serv. Co. 391 U.S. 253 290 20 L. Ed. 2d 569 88 S. Ct.1575 (1968)).

Court does not make credibility determinations with respect to evidence offered and is required to draw all inferences in the light most favorable to the non-moving party. T.W. Elec. Serv. Inc. 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574 587 89 L. Ed. 2d 538 106 S. Ct.1348 (1986)). Summary judgment is therefore not appropriate "where contradictory inferences may reasonably be drawn from undisputed evidentiary facts . . . ." Hollingsworth Solderless Terminal Co. v. Turley 622 F.2d 1324 1335 (9th Cir.1980).

II. Federal Claims

A. Legal Standard for Qualified Immunity

The doctrine of qualified immunity protects government officials from civil liability for their performance of discretionary functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald 457 U.S. 800 818 73 L. Ed. 2d 396 102 S. Ct.2727 (1982). The relevant inquiry for purposes of qualified immunity "is whether a reasonable government official could have believed that his conduct was lawful in light of clearly established law and the information he possessed." Thorsted v. Kelly 858 F.2d 571 573 (9th Cir.1988). This criterion of "objective legal reasonableness " adopted by the Supreme Court in Harlow allows "the defeat of insubstantial claims without resort to trial." Behrens v. Pelletier 133 L. Ed. 2d 773 116 S. Ct.834 838 (1996).

Court applies a two-part analysis to determine whether defendants are entitled to qualified immunity: (1) Court must determine whether plaintiff has alleged a violation of a right that is clearly established; (2) Court must consider whether under the facts as alleged in plaintiff's complaint a reasonable hospital supervisor in defendants' position could have believed his conduct was lawful. See Collins et al. v. Jordan 102 F.3d 406 412 (9th Cir.1996).

Plaintiff argues that defendants cannot properly style their motion as a motion to dismiss because qualified immunity requires a factually intensive determination. Because qualified immunity provides immunity from suit and is not merely a defense to liability however it is important to "resolve immunity questions at the earliest possible stage in litigation." Hunter v. Bryant 502 U.S. 224 227 116 L. Ed. 2d 589 112 S. Ct.534 (1991) (internal citation and quotation marks omitted). The Ninth Circuit has indicated that "qualified immunity may be established as a matter of law by the district court on a motion to dismiss for summary judgment or for a directed verdict." Thorsted v. Kelly 858 F.2d 571 573 (9th Cir.1988); see also Landstrom v. Illinois Dep't of Children & Family Serv. 892 F.2d 670 675 n.8 (7th Cir.1990) (holding that dismissal for failure to state a claim is proper when the plaintiff's pleadings insufficiently allege a violation of any clearly established right).

In a motion to dismiss based on qualified immunity "it is the defendant's conduct as alleged in the complaint that is scrutinized for 'objective legal reasonableness.'" Behrens 116 S. Ct. at 840. Court must determine whether defendants' actions as alleged by plaintiff "are actions that a reasonable officer could have believed lawful. If they are then [defendants are] entitled to dismissal prior to discovery." Anderson v. Creighton 483 U.S. 635 646 n.6 97 L. Ed. 2d 523 107 S. Ct.3034 (1987).

In order to overcome defendants' qualified immunity argument plaintiff cannot rely on "bare allegations of malice." Harlow 457 U.S. at 818. Moreover Court applies a heightened pleading standard to plaintiff's claims of racial discrimination and a conspiracy to violate his civil rights because both require a showing of subjective intent. See Branch v. Tunnell 937 F.2d 1382 1383 (9th Cir.1991) cert. denied 129 L. Ed. 2d 832 114 S. Ct.2704 (1994). To survive this motion to dismiss plaintiff "must state in [his] complaint non-conclusory allegations setting forth evidence of unlawful intent." Id.

In a motion for summary judgment based on qualified immunity Court must examine the evidence proffered by both plaintiff and defendants and make a determination of whether a reasonable hospital employer could have believed that defendants' request for a fitness for duty examination was lawful. See Hunter 502 U.S. at 226. This inquiry is made in light of clearly established law and the information possessed by the defendants. Id.

B. Plaintiff's Federal Claims

1. Invasion of Privacy - First Cause of Action

Plaintiff alleges that "in submitting to the urine and blood testing [he] was subjected to unlawful invasion of his privacy as guaranteed by the Fourth Amendment." (Complaint P 13.) Defendants counter that they acted in accordance with the Sonoma County Personnel Department Guidelines to Assist Supervisors in the Management of the Employee Under the Influence of Alcohol or Drugs (the "Sonoma County policy"). *fn4 (Dfts.' Motion at 6.) Court must determine (1) whether plaintiff alleges a violation of a law that was clearly established and (2) whether under the facts as alleged by plaintiff defendants' belief that they were acting lawfully was reasonable.

a. Clearly Established Law

Plaintiff asserts and defendants do not dispute that the law at issue in this case was clearly established. That law as defined by plaintiff is that employers can subject public employees in non-safety sensitive positions to reasonable suspicion drug testing only where there is a "reasonable articulable and individualized suspicion that a specific employee may be under the influence of drugs." National Treasury Employees Union v. Lyng 706 F. Supp.934 949 (D.D.C. 1988). Although the Ninth Circuit recently summarized the law on reasonable suspicion more broadly Court agrees with both parties that the law was clearly established in this case. *fn5 Court therefore turns to the second prong of its analysis determining the reasonableness of defendants' belief that it was lawful to request that plaintiff undergo a urinalysis. See Collins v. Jordan 102 F.3d at 412.

b. Reasonableness of Defendants' Belief

Pursuant to the Sonoma County policy a supervisor can direct an employee to submit to a medical evaluation to determine whether the employee is "fit for duty." The policy lists certain criteria upon which supervisors can rely in determining whether a medical evaluation is needed. (Affidavit of Richard Gearhart ("Gearhart Aff.") Ex. C.) Plaintiff only alleges that defendants had no reasonable suspicion for believing that plaintiff was under the influence of drugs or alcohol. (Complaint P 12.)

The relevant inquiry is not whether defendants' suspicion about plaintiff's condition was reasonable but rather whether defendants' belief that they were acting lawfully was reasonable. See Anderson 483 U.S. at 641. Under clearly established law in the Ninth Circuit an employer acts reasonably in subjecting an employee to a drug test if the employer reasonably believes that the employer afforded sufficient accommodation to the employee's privacy relative to "the special needs of government" served by the administration of the test. See American Fed'n of Gov't Employees 9 F.3d at 1466.

i. Motion to Dismiss First Cause of Action

On a motion to dismiss "it is the defendant's conduct as alleged in the complaint that is scrutinized for 'objective legal reasonableness.'" Behrens 116 S. Ct. at 840. In this case plaintiff alleges that defendants subjected plaintiff to a blood and urine test without any suspicion that plaintiff was under the influence of drugs or alcohol. (Complaint P 12.) Court must assume all factual allegations in plaintiff's Complaint to be true and must construe the facts in the light most favorable to plaintiff. See North Star 720 F.2d at 580. Because the Complaint sufficiently alleges that defendants' did not act with objective legal reasonableness defendants' motion to dismiss plaintiff's First Cause of Action invasion of privacy in violation of 42 U.S.C. SEC. 1983 is DENIED.

ii. Motion for Summary Judgment on First Cause of Action

On this motion for summary judgment on the issue of qualified immunity the relevant inquiry is whether a reasonable employee could have believed that defendants' request for a fitness for duty examination was lawful in light of the clearly established law and the information that defendants possessed. See Hunter 502 U.S. at 226; Anderson 483 U.S. at 641. Even if defendants "reasonably but mistakenly" concluded that plaintiff should be subjected to a fitness for duty test they are entitled to qualified immunity. See Hunter 502 U.S. at 227.

The information possessed by defendants was as follows: Plaintiff locked himself in the employee break room when he arrived at work on January 23 1995 and remained there for several hours. After learning that plaintiff was locked in the break room defendants' proceeded to unlock the break room and ascertain why plaintiff was not working. Defendants had difficulty waking plaintiff. After waking plaintiff defendants noticed that plaintiff had bloodshot eyes and slurred his speech. They asked him if he could walk to the emergency room and plaintiff responded that he did not know. (Depo. of Melvin E. Jermon at 59 Gearhart Aff. Ex. C.) Plaintiff had extreme difficulty walking down the stairs to the emergency room. Id. at 67. A reasonable hospital supervisor could have concluded based on those facts that plaintiff was under the influence of alcohol or drugs even though the ultimate result of the fitness for duty test showed that plaintiff was not under the influence of any substance. See Bryant 502 U.S. at 229 ("The qualified immunity standard 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.'")

Defendants' motion for summary adjudication on plaintiff's First Cause of Action alleging invasion of plaintiff's privacy in violation of 42 U.S.C. SEC. 1983 is GRANTED.

2. Race Discrimination - Second Cause of Action

Plaintiff's Second Cause of Action alleges that "in acting as alleged [in the Complaint] defendants subjected plaintiff to discrimination because of his race. . . ." (Complaint P 18.) In order to prove race discrimination plaintiff must show that defendants acted with the intent to discriminate. See Sischo-Nownejad v. Merced Community College Dist. 934 F.2d 1104 1113 (9th Cir.1991). Plaintiff however does no more than conclusorily allege that defendants discriminated against him on the basis of his race. He fails to set forth any facts which would support a finding of intentional discrimination under the heightened pleading standard employed in evaluating a motion to dismiss where a defendant's subjective intent is at issue. See Branch v. Tunnell 937 F.2d at 1383. Plaintiff's Second Cause of Action for race discrimination is therefore

DISMISSED.

3. Conspiracy - Third Cause of Action

Plaintiff also alleges that defendants "willfully acted in concert to discriminate against plaintiff and to deprive him of his right to privacy. . . .Defendants were engaged in a scheme or conspiracy to deny him rights guaranteed him under the Constitution and law of the United States in violation of 42 U.S.C. SEC. 1985." (Complaint P 20.) Like plaintiff's claim of race discrimination however Sec. 1985(3) requires proof of an "invidiously discriminatory motivation." Griffin v. Breckenridge 403 U.S. 88 102 29 L. Ed. 2d 338 91 S. Ct.1790 (1971). Again plaintiff sets forth no facts in support of his conclusion that defendants conspired to deprive him of his constitutional rights; plaintiff's Third Cause of Action does not satisfy the heightened pleading standard which requires "non-conclusory allegations setting forth evidence of unlawful intent." Branch 937 F.2d at 1383. Plaintiff's Third Cause of Action for conspiracy in violation of 42 U.S.C. SEC. 1985 is therefore DISMISSED.

4. Injunctive Relief - Sixth Cause of Action

SCOPE brings the sixth cause of action a violation of 42 U.S.C. section 1983 seeking to enjoin defendants from implementing their policy of blood and urine testing. (Complaint PP 27-33.) To the extent that SCOPE asserts the claim against the individual defendants at issue in this motion the claim is also DISMISSED.

III. State Claims

A. Legal Standards

1. Pendent Jurisdiction

Court "may decline to exercise supplemental jurisdiction . . . if . . .[it] has dismissed all claims over which it has original jurisdiction." Hansen v. California Dep't of Corrections 920 F. Supp.1480 1500 (N.D. Cal. 1996) (citing 28 U.S.C. SEC. 1367(c)(3)). Pendent jurisdiction however still exists over a state claim if the "federal claim is sufficiently substantial to confer federal jurisdiction . . . . The ultimate lack of merit of the federal claim does not mean that pendent jurisdiction cannot attach." Brady v. Brown 51 F.3d 810 816 (9th Cir.1994). "The federal claim must be absolutely devoid of merit or obviously frivolous to divest the court of pendent jurisdiction." Id. (internal quotations and citation omitted).

Court considers certain factors in determining whether to retain jurisdiction over the state law claims in the event that it dismisses all federal claims including "economy convenience fairness and comity." Imagining Inc. v. Kiewit Pac. Co. 976 F.2d 1303 1309 (9th Cir.1992) cert. denied 507 U.S. 1004 123 L. Ed. 2d 266 113 S. Ct.1644 (1995). The Ninth Circuit frequently upholds "decisions to retain pendent claims on the basis that returning them to state court would be a waste of judicial resources." 976 F.2d at 1309.

2. State Immunity

Under California law a government official has "personal immunity from lawsuits challenging his or her discretionary acts within the scope of authority." Caldwell v. Montoya 10 Cal. 4th 972 897 P.2d 1320 1324 (Cal. 1995). The California Tort Claims Act (the "Act") establishes that "public employees are liable for their torts except as otherwise provided by" other provisions of the Act. Id. (citing Cal. Gov't Code SEC. 820(a)). One such exception is for performance of discretionary duties. Cal. Gov't Code SEC. 820.2.

The California Supreme Court has not adopted a literal or semantic definition of the term "discretion." Johnson v. California 69 Cal. 2d 782 447 P.2d 352 356 73 Cal. Rptr.240 (Cal. 1968) (citing Ham v. County of Los Angeles 46 Cal. App. 148 189 P. 462 468 (Cal. Ct. App. 1920) ("It would be difficult to conceive of any official act no matter how directly ministerial that did not admit of some discretion in the manner of its performance even if it involved only the driving of a nail.")). Rather "immunity is reserved for those basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government and as to which judicial interference would thus be unseemly." Caldwell 897 P.2d at 1326 (internal citation and quotation marks omitted); see also Nunn v. California 35 Cal. 3d 616 677 P.2d 846 849 200 Cal. Rptr.440 (Cal. 1984) (holding that a failure promptly to enact a regulation which would allow security guards to carry firearms was discretionary); Johnson 447 P.2d at 358 (holding that a school board's vote on whether to renew a superintendent's contract was discretionary). California courts relying on Caldwell and Johnson have refused to interfere with an official's final judgment regarding how to protect a community's welfare or how to handle personnel problems. See e.g. Lipman v. Brisbane Elem. Sch. Dist. 55 Cal. 2d 224 359 P.2d 465 466 11 Cal. Rptr.97 (Cal. 1961) (granting immunity to trustees of a school district who discredited the school superintendent and forced her from her position reasoning that there "is a vital public interest in securing free and independent judgment of school trustees in dealing with personnel problems"); Alicia T. v. Los Angeles 222 Cal. App. 3d 869 271 Cal. Rptr.513 519 (Cal. Ct. App. 1990) (granting immunity to social workers because social workers need to have freedom to action "in favor of the protection of minor children").

On the other hand state officials who carry out lower-level ministerial decisions "that merely implement a basic policy already formulated" are not afforded immunity. Caldwell 897 P.2d at 1326 (internal citation omitted). The California Supreme Court has rejected numerous claims asserting immunity on the ground that those situations involved operational rather than policy decisions. Id.; see Lopez v. Southern Cal. Rapid Transit Dist. 40 Cal. 3d 780 710 P.2d 907 915 221 Cal. Rptr.840 (Cal. 1985) (holding that a bus driver's failure to intervene in an assault against a passenger was not discretionary); Peterson v. San Francisco Community College Dist. 36 Cal. 3d 799 685 P.2d 1193 1194-95 205 Cal. Rptr.842 (Cal. 1984) (holding that a college's failure to warn individuals of dangerous crime in a parking lot was not discretionary).

Court can properly grant a motion to dismiss or a motion for summary judgment based on an immunity defense under California law. See e.g. Fenton v. Groveland Community Serv. Dist. 135 Cal. App. 3d 797 185 Cal. Rptr.758 764 (Cal. Ct. App. 1982). Immunity will only be granted however if defendants can establish that their actions were discretionary pursuant to section 820.2 of the California Government Code.

B. Plaintiff's State Claims

1. Pendent Jurisdiction

Even though Court has dismissed all federal claims against the moving defendants Court will retain supplemental jurisdiction over plaintiff's state law claims against the individual defendants for three reasons. First returning the remaining claims to state court would result in a waste of judicial resources. See Imagineering Inc. 976 F.2d at 1309. The remaining claims against the individual defendants arise from the same facts as the federal claims asserted against defendant Hospital and present neither a complex nor novel issue of state law. Second even though the federal claims against the individual defendants were resolved prior to trial only where the federal claims are "absolutely devoid of merit or obviously frivolous" is Court divested of jurisdiction to hear the remaining state claims. Brady 51 F.3d at 816. Finally out of fairness to the litigants Court will not require the parties to maintain or defend two separate suits arising under the same set of facts when Court "can move toward final resolution much more efficiently." See Hansen 920 F. Supp. at 1500.

2. Invasion of Privacy under California Law - Fourth Cause of Action

Plaintiff's fourth cause of action alleges invasion of privacy in violation of Article I SEC. 1 of the California Constitution. Defendants argue that they made "a balanced measured and careful analysis of" plaintiff's "observable condition . . . which clearly called for the exercise of their discretion under" the Sonoma County policy. (Reply at 4.) Plaintiff argues that defendants are not entitled to state immunity because they were "merely implementing a basic policy already formulated." (Plt.'s Opp. at 6.)

Defendants' conduct was the result of deliberate and considered policy decisions. The Sonoma County policy leaves the final decision of whether to implement a fitness for duty examination to the supervisor on duty. The policy states that the supervisor is "in a position of trust and confidence and [has] been delegated authority to manage on the job problems" including problems associated with drug and alcohol abuse. (Sonoma County policy Gearhart Aff. Ex. C.)

Defendants are entitled to immunity under California law for their decision to require plaintiff to undergo a fitness for duty test. The underlying purpose of immunity is "that fear of civil lawsuits might deter officials from the zealous and unflinching discharge of their public duties." Caldwell 897 P.2d at 1324 (citations omitted). Defendants have been granted the authority under the Sonoma County policy to handle personnel problems faced by the Hospital. It would be an unseemly interference for any court to review every decision made by hospital supervisor when the supervisor has final authority to make that decision. See Caldwell 897 P.2d at 1326. The concerns articulated by the California Supreme Court in Caldwell are well taken and dictate that the judiciary should not micro-manage every policy decision undertaken by an employee in order to ensure that supervisors such as defendants properly discharge their duties.

Plaintiff's Fourth Cause of Action for invasion of privacy in violation of the California Constitution is DISMISSED as to the individual defendants.

3. Battery - Fifth Cause of Action

For the reasons set forth immediately above plaintiff's fifth cause of action for battery is also DISMISSED as to the individual defendants.

4. Injunctive Relief - Seventh Cause of Action

SCOPE brings the seventh cause of action for invasion of privacy in violation of state law seeking to enjoin defendants from implementing their policy of blood and urine testing. (Complaint PP 27-33.) To the extent that SCOPE asserts the claim against the individual defendants at issue in this motion the claim is also DISMISSED.

CONCLUSION

For the foregoing reasons the individual defendants' motion to dismiss plaintiff's Second Third Fourth Fifth Sixth and Seventh Causes of Action is GRANTED without prejudice. Defendants' motion to dismiss plaintiff's First Cause of Action is DENIED. Defendants' motion for summary judgment on plaintiff's First Cause of Action is GRANTED. *fn6

 
Notes:

*fn1 This motion does not appear to be brought on behalf of the County of Sonoma or the Community Hospital the other named defendants in this action. Court's disposition of defendants' motion therefore does not affect plaintiff's claims against those defendants.

*fn2 The second named plaintiff in this action is the Sonoma County Organization of Public and Private Employees Service Employees International Union Local 707 AFL-CIO ("SCOPE"). Two of the seven causes of action alleged in the complaint are brought on behalf of SCOPE. To the extent those causes of action are against the individual defendants they are covered by Court's order. For ease of reference however Court will refer throughout this order to plaintiff Jermon only.

*fn3 Although plaintiff alleges in his Complaint that he was required to take the fitness for duty test to keep his job at his deposition he stated that nobody required or directed him to take the test as a condition of continued employment. (Depo. of Melvin Jermon at 155.) That testimony is an admission thereby removing this issue from dispute.

*fn4 Even on a motion to dismiss Court can take judicial notice of the Sonoma County policy as a public record outside pleadings. See MGIC Indem. Co. v. Weisman 803 F.2d 500 504 (9th Cir.1986).

*fn5 In American Federation of Government Employees AFL-CIO v. Roberts 9 F.3d 1464 1466 (9th Cir.1993) the Ninth Circuit stated:

"Urinalysis when required by the government is a search of the body that is constitutionally prohibited unless it is reasonable. . . . Particular suspicion of an individual is not necessarily a precondition . . . . What the government must show is a reasonable accommodation of the tested employees' privacy expectations to the special needs the government serves by testing."

*fn6 This dismissal only applies to defendants Elliot and Caldwell the individual named defendants on whose behalf this motion to dismiss was brought.