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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:
April 18 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 defendants County of Sonoma ("County") and Community Hospital's (collectively defendants ) motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) or alternatively for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). This motion requires Court to determine whether defendants violated plaintiff Melvin Jermon's ("Jermon") (1) federal constitutional right to privacy under 42 U.S.C. section 1983; (2) federal constitutional right to be free from race discrimination under 42 U.S.C. section 1983; (3) federal constitutional rights under 42 U.S.C. section 1985 by conspiring to deprive him of his right to privacy and discriminating against him; (4) state constitutional right to privacy; and (5) right under state law to be free from battery. This also requires Court to determine whether to enjoin defendants from enforcing the County's "fitness for duty" drug and alcohol testing policy. Because Court concludes that plaintiffs have failed to demonstrate any evidence of either state or federal constitutional deprivations defendants' motion for summary judgment is granted.

BACKGROUND *fn1

Jermon a black man worked as a janitor at Community Hospital. On January 23 1995 Jermon reported to work and proceeded to lock himself in the employee break room. Larry Caldwell ("Caldwell") and Donna Elliott ("Elliott") Jermon's direct supervisors discovered Jermon in the break room and asked or ordered him to take a "fitness for duty" examination. The results of the test were negative for alcohol or drugs and Jermon was eventually diagnosed as suffering from gastroenteritis.

Jermon and plaintiff Sonoma County Organization of Public and Private Employees' ("SCOPE") allege the following seven causes of action all of which focus on Jermon's submission to the fitness for duty examination:

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.

On February 3 1997 Court dismissed all claims for relief directed against Caldwell and Elliott. The Court determined that Caldwell and Elliott acted reasonably when they ordered Jermon to undergo a fitness for duty examination and that their actions were "discretionary" under California law. Court concluded that the individual defendants were entitled to immunity under state and federal law.

On March 18 1997 defendants County and Community Hospital filed an expedited motion for relief requesting either judgment on the pleadings or summary judgment with regard to plaintiffs' remaining claims.

DISCUSSION

I. Legal Standards

A. Judgment on the Pleadings

"After the pleadings are closed but within such time as not to delay the trial any party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). A Rule 12(c) motion challenges the legal sufficiency of the opposing party's pleadings. The standard applied to a motion for judgment on the pleadings is similar to that used in evaluating a Rule 12(b)(6) motion to dismiss. Judgment on the pleadings is appropriate when even if all material facts in the pleadings under attack are true the moving party is entitled to judgment as a matter of law. See Hal Roach Studios v. Richard Feiner & Co. 89 F.2d 1542 1550 (9th Cir. 1990).

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 nonmoving 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. See 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. Analysis

A. Judgment on the Pleadings versus Summary Judgment

Defendants ask Court to dismiss plaintiffs' claims on the pleadings; however defendants' arguments to dismiss are inextricably intertwined with analyses that rely upon facts outside the scope of the pleadings. Accordingly it would be inappropriate to consider the defendants' motion as one for judgment on the pleadings; Court will instead treat defendants' motion as one for summary judgment.

B. First Claim for Relief - Invasion of Privacy in Violation of Section 1983

Jermon contends that the County and Community Hospital established and maintained a custom policy or practice which deprived him of his privacy rights guaranteed by 42 U.S.C. section 1983. There are several grounds upon which Jermon could base his claim for relief for violation of section 1983. First if defendants implemented an unconstitutional policy see Monell v. Department of Social Servs. 436 U.S. 658 56 L. Ed. 2d 611 98 S. Ct. 2018 (1978) or maintained a custom or practice of depriving individual employees of constitutional rights they are liable under section 1983. See Pembaur v. City of Cincinnati 475 U.S. 469 89 L. Ed. 2d 452 106 S. Ct. 1292 (1986). Second if defendants maintained a policy of inadequate training or supervision they are responsible for any constitutional deprivations to their employees caused by that failure to train. See City of Oklahoma v. Tuttle 471 U.S. 808 85 L. Ed. 2d 791 105 S. Ct. 2427 (1985). Finally defendants are responsible for any constitutional harm suffered by an employee if that employee was injured by supervisors with final decision-making authority. See Jett v. Dallas Indep. Sch. Dist. 491 U.S. 701 105 L. Ed. 2d 598 109 S. Ct. 2702 (1989). Jermon's claim for relief fails under all of these grounds.

1. Custom Policy or Practice

Under Monell a municipal entity can be liable if it promulgates an unconstitutional policy. See 436 U.S. at 694. Moreover if the municipality maintains an unwritten custom or practice of depriving individuals of their constitutional rights liability under section 1983 will attach. See City of St. Louis v. Prapotnik 485 U.S. 112 99 L. Ed. 2d 107 108 S. Ct. 915 (1988). The Ninth Circuit has concluded that a plaintiff can establish "the existence of a custom or informal policy with evidence of repeated constitutional violations for which the errant municipal officials were not discharged or reprimanded." See Gillette v. Delmore 979 F.2d 1342 (9th Cir. 1992).

There is no evidence that the County or Community Hospital maintained an unconstitutional drug or alcohol testing policy. The Ninth Circuit in American Fed'n of Gov't Employees AFL-CIO v. Roberts 9 F.3d 1464 1466 (9th Cir. 1993) 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.

The County's "fitness for duty" policy complies with Ninth Circuit law. Immediate supervisors can only direct an employee to undergo a fitness for duty examination if the employee exhibits two conditions commonly associated with substance abuse if the immediate supervisor checks with her manager prior to testing the employee if the immediate supervisor talks with the employee about the employee's aberrant behavior and if the immediate supervisor discusses the employee's condition with the medical staff in the emergency room. (Sonoma County policy Affidavit of Richard Gearhart Ex. C.) Immediate supervisors must also keep written records regarding the employee's conduct and must return the employee to work if the medical staff concludes that the employee is fit for duty. These "fitness for duty" criteria meet the Ninth Circuit's "reasonable accommodation of the tested employees' privacy expectations" requirements of Roberts. See Roberts 9 F.3d at 1466.

Jermon alternatively contends that defendants maintained a custom or practice of unconstitutionally administering the fitness for duty examination. Jermon argues that Caldwell and Elliott did not have reasonable suspicion to subject him to a fitness for duty examination on January 23 1995. Jermon also alleges that he was required to take the fitness for duty exam as a condition of continuing employment. In its February 3 1997 Order however Court found that a reasonable hospital supervisor could have concluded that Jermon was under the influence of alcohol or drugs. Although Caldwell and Elliott did not get Jermon's written consent to the fitness for duty examination the Court has already determined that Jermon consented to the test and all evidence proffered supports that conclusion. See e.g. Affidavit of Richard Gearhart Ex. F (Report of Dr. Robert Landman which states that Jermon "willingly consented to having urine and blood tested for alcohol and drugs"); Affidavit of Larry Caldwell P 10; Affidavit of Dr. Robert Landman P 4.

Moreover Jermon does not proffer any evidence that he was required to take the fitness for duty test as a condition of continuing employment. See Affidavit of Larry Caldwell P 10. In fact Jermon testified at his deposition that he never told any of his supervisors that he believed he had to take the exam as a condition of continuing employment. (Deposition of Melvin Jermon at 153-54.) In addition Jermon presents no evidence that it was the custom or practice for Community Hospital or the County to subject individuals to fitness for duty exams as conditions of continued employment. Jermon has failed to establish the existence of a policy custom or practice of defendants depriving individuals of their constitutional right to privacy.

2. Inadequate Training

A municipality will only be found liable under section 1983 for a policy of inadequate training or supervision in limited circumstances. See City of Canton v. Harris 489 U.S. 378 387 103 L. Ed. 2d 412 109 S. Ct. 1197 (1989). Inadequacy of training "may serve as the basis for section 1983 liability only where the [municipal entity's] failure to train amounts to deliberate indifference to the rights of" individuals. Id.

Jermon alleges that the County and Community Hospital inadequately trained their employees and supervisors as to how to implement the "fitness for duty" examinations. Jermon provides no evidence of any "deliberately indifferent failure to train" required to support his section 1983 claim. See Harris 489 U.S. at 387. Rather Jermon conclusorily alleges that the "County has not shown that it conducted any training of its supervisors or management personnel in the implementation for reasonable suspicion testing." (Pls.' Opp. at 21.) Defendants however produced evidence of a significant training program. Caroyln Lank a County employee working for the Alcohol and Drug Services program stated that beginning in 1988 the County maintained a policy which included "regular training which was extremely extensive and active. We provided regular seminars with handouts video films lesson plans and other methods to assist supervisors in being alert to troubled employees. We developed outlines and handbooks as aids for the supervisors." (Declaration of Carolyn Lank ("Lank Decl.") P 3.) The County also had a policy of training supervisors how to maintain a drug-free work environment. (Lank Decl. P 4.) The County guidelines regarding the administration of drug and alcohol tests carefully delineate the steps and procedures that a supervisor must follow prior to directing an employee to undergo a fitness for duty examination. As Court concluded in its previous Order Caldwell and Elliott followed these guidelines prior to directing Jermon to the emergency room. There is no evidence that defendants inadequately trained their employees; nor is there evidence that in this case Caldwell and Elliott treated Jermon in a manner inconsistent with County guidelines.

3. Decisions of Individuals with Final Decision-Making Authority

Municipal liability can also attach under section 1983 if an employee with final decision-making authority for the municipal entity deliberately chooses to follow a course of action which deprives of an individual of his constitutional rights. See Pembaur 475 U.S. at 483-84. In order for municipal liability to attach the individual must "be responsible for establishing final government policy." Id. at 483. Jermon maintains that Caldwell and Elliott's decisions were deliberate choices by final decision-makers that led to a deprivation of his constitutional right to privacy.

In Court's Order of February 3 1997 Court stated that "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 a hospital supervisor when the supervisor has final authority to make that decision." See Order at 18-19. Court concluded however that Caldwell and Elliott acted reasonably and did not violate Jermon's constitutional right to privacy. See id. at 10-11. Although the choices made Caldwell and Elliott were decisions of final decision-makers the decisions do not amount to deliberate indifference in violation of section 1983. See Jett 491 U.S. at 735-37. Defendants' motion for summary judgment on plaintiffs' first claim for relief is therefore granted.

C. Sixth Claim for Relief - SCOPE's Claim for Injunctive Relief

For the reasons set forth immediately above defendants' motion for summary judgment on SCOPE's claim for injunctive relief which is also predicated on defendants' invasion of privacy in violation of section 1983 is granted.

D. Second Claim for Relief - Race Discrimination in Violation of Section 1983

Jermon alleges that the County and Community Hospital discriminated against him because of his race in violation of 42 U.S.C. section 1983. In order to prove discrimination in violation of section 1983 Jermon must demonstrate that defendants acted with the intent to discriminate. See Peters v. Lieuallen 746 F.2d 1389 1393 (9th Cir. 1984). Courts employ Title VII's burden shifting analysis to determine whether a defendant intentionally discriminated against a plaintiff in violation of section 1983. See Knight v. Nassau County Civil Serv. Commission 649 F.2d 157 161-62 (9th Cir. 1991). Under that analysis Jermon must first establish a prima facie case of discrimination by introducing evidence that "gives rise to an inference of unlawful discrimination." Texas Dep't of Community Affairs v. Burdine 450 U.S. 248 250 67 L. Ed. 2d 207 101 S. Ct. 1089 (1981). The burden then shifts to defendants to articulate a legitimate non-discriminatory reason for their challenged decision. See id.; McDonnell Douglas Corp. v. Green 411 U.S. 792 804 36 L. Ed. 2d 668 93 S. Ct. 1817 (1973). Finally the burden shifts back to Jermon to demonstrate that the non-discriminatory reason proffered by defendants is a pretext for unlawful discrimination. See Burdine 450 U.S. at 250.

1. Burden Shifting Analysis

a. Prima Facie Case

Jermon must first produce sufficient evidence to make a prima facie case that defendants' employment decision was racially motivated. See Diaz v. American Tel. & Tel. 752 F.2d 1356 1363 (9th Cir. 1985). "The requisite degree of proof necessary to establish a prima facie case . . . on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co. 26 F.3d 885 889 (9th Cir. 1994). Jermon must show that: (1) he was a member of a protected class; (2) he was performing his job satisfactorily; (3) he was subjected to an employment decision despite his qualifications; and (4) individuals who were not members of the protected class were not subjected to that challenged employment decision. See Wallis 26 F.3d at 891 (citing McDonnell Douglas Corp 411 U.S. at 802).

Jermon attempts to establish his prima facie case through circumstantial and statistical evidence. While courts may consider circumstantial evidence and statistics in a race discrimination claim that evidence must be credible. See American Fed'n of State City and Mun. Employees AFL-CIO v. Washington 770 F.2d 1401 1407 (9th Cir. 1985). Jermon proffered the declarations of Carolyn Lopez ("Lopez") Glenda Canfield ("Canfield") and Dr. Howard Schwartz ("Dr. Schwartz") as well as statistical evidence to demonstrate race discrimination. The three declarations and statistical evidence however are insufficient as a matter of law to establish a prima facie case of race discrimination.

i. The Declarations

Lopez a Mexican-American employee of Community Hospital described two instances in which she was ill and was not required to undergo fitness for duty examinations. Lopez described one instance in which she had "a severe headache" and was "sluggish but her supervisors did not require her to undergo a drug or urine test. (Declaration of Lopez ( Lopez Decl.") P 3.) Lopez also discussed an instance in which she had morning sickness and vomited but was not required to undergo a fitness for duty examination. (Lopez Decl. P 4.)

Canfield a white employee of the County Hospital described one instance in which she came down with the flu and became nauseous. (Declaration of Glenda Canfield ("Canfield Decl.") PP 3 4.) Canfield suffered from diarrhea and spent long periods of time in the restroom. (Canfield Decl. P 4.) Canfield told her supervisors that she was too weak to drive home. Id. She was not ordered by her supervisors to undergo a fitness for duty examination. Id.

Canfield and Lopez's statements do not support Jermon's prima facie case because neither employee's experiences were similar to the situation described by Jermon and his supervisors. Jermon locked himself in the break room for several hours. (Declaration of Donna Elliott ("Elliott Decl.") P 5.) Upon discovering Jermon locked in the break room Caldwell and Elliott had difficulty rousing plaintiff. After waking Jermon Caldwell and Elliott noticed that Jermon had bloodshot eyes. See id. P 6. Jermon told Caldwell and Elliott that he did not know if he could make it to the emergency room and that he had great difficulty walking. See id. PP 8-9. Jermon's condition was not analogous to either Canfield or Lopez's descriptions.

Nor does the declaration of Dr. Schwartz support Jermon's claim for race discrimination. Dr. Schwartz described the standard practices employed in the emergency room of the County Hospital and steps taken by the medical staff to diagnose gastroenteritis. (Declaration of Dr. Howard Schwartz ("Schwartz Decl.") PP 3-5.) Schwartz stated that it is not standard practice to conduct a "fitness for duty" examination. He also declared that a urine or blood test is not required to diagnose gastroenteritis. (Schwartz Decl. P 5.) Caldwell and Elliott however did not take Jermon to the emergency room to diagnose gastroenteritis. Rather Caldwell and Elliott had a reasonable suspicion based on all the circumstances that Jermon was under the influence of drugs or alcohol. Uncontroverted evidence demonstrates that Jermon was tested because the symptoms he displayed were consistent with County guidelines for drug or alcohol use.

Moreover Jermon contends that Dr. Landman did not follow the standard emergency room procedures for diagnosing gastroenteritis as set forth in Dr. Schwartz's declaration. Dr. Landman's declaration stated that he did not know whether Jermon was under the influence of a controlled substance or suffered from gastroenteritis. (Declaration of Robert Landman ("Landman Decl.") PP 4-6.) Dr. Landman did not order the fitness for duty exam to diagnose gastroenteritis but rather to determine whether Jermon was under the influence of a controlled substance. Id. Dr. Landman did not definitively diagnose Jermon with gastroenteritis until after the examination results were returned. Id. *fn2

ii. Statistical Evidence

Jermon's statistical evidence purportedly demonstrates that the County maintained a policy of disproportionately subjecting African-American employees to "fitness for duty" examinations. Jermon presents "statistics" that demonstrate that 25% of the County employees subjected to such testing since January 1 1994 are African American . . although only 1.5% of the County workforce is African American . . . . Doing the math African American County employees are 21.9 times more likely than non-African-American employees to be subjected to for-cause urine or blood testing.

(Pl.'s Opp. at 19-20.) On first glance Jermon's statistics seem to demonstrate a practice of race discrimination. But because his statistical pool is too small relative to the size of the County workforce his statistics do not establish a prima facie case of race discrimination.

Jermon proffers the County's answers to interrogatories in his attempt to establish race discrimination. The County provided information regarding all individuals who have been subjected to "fitness for duty" examinations who worked at Community Hospital:

a. September 24 1992 Caucasian

b. April 14 1993 Caucasian

c. October 28 1995 Caucasian

d. August 18 1996 Caucasian

e. April 18 1994 Hispanic

(Declaration of Michael Healy ("Healy Decl.") Ex. 1.) The County also provided evidence of individuals subjected to "fitness for duty" examinations who worked for the County but not for the Hospital:

a. July 1 1994 Black

b. February 14 1994 Caucasian

c. May 3 1994 Caucasian

d. January 26 1994 Caucasian

(Healy Decl. Ex. 1.) Statistics are only relevant to a claim of race discrimination where the pool is significant; courts reject the statistical sample if the pool is too small. See Sorosky v. Burroughs Corp. 826 F.2d 794 804 (9th Cir. 1987); White v. City of San Diego 605 F.2d 455 461 (9th Cir. 1979). Over 3800 individuals work for the County of Sonoma. It is impossible to determine whether a policy or practice of testing individuals was racially motivated based on the statistically insignificant pool submitted by Jermon. Jermon's statistics do not establish a prima facie case of discrimination.

Because Jermon fails to establish a prima facie case of race discrimination summary judgment on his second claim for relief alleging a violation of section 1983 is granted. *fn3

E. Third Claim for Relief - Conspiracy in Violation of Section 1985

Jermon alleges that defendants conspired to deprive him of his right to privacy and right to be free from race discrimination guaranteed by 42 U.S.C. section 1983 in violation of 42 U.S.C. section 1985. (Complaint P 20.) Because Court has concluded that defendants did not deprive Jermon of his constitutional rights Jermon cannot maintain his section 1985 conspiracy claim predicated on the same allegations. See Caldera v. County of Kauai 866 F.2d 1175 (9th Cir. 1989); Dooley v. Reiss 736 F.2d 1392 1395 (9th Cir. 1984). Summary judgment on plaintiffs' third claim for relief is therefore granted.

F. State Law Claims

1. Supplemental Jurisdiction

Even though Court has dismissed all federal claims against Community Hospital and the County the Court in its discretion will retain supplemental jurisdiction over plaintiffs' state law claims. Returning the remaining claims to state court would result in a waste of judicial resources. See Imagineering Inc. v. Kiewit Pac. Co. 976 F.2d 1303 1309 (9th Cir. 1992). The remaining claims against the County and Community Hospital arise from the same facts as the federal claims and do not present a novel issue of state law better left to state courts. Although the federal claims were resolved prior to trial only where a federal claims is "absolutely devoid of merit or obviously frivolous" is Court divested of jurisdiction to hear the remaining state claims. See Brady v. Brown 51 F.3d 810 816 (9th Cir. 1994). Finally out of fairness to the litigants Court will not at this stage considering the resources already expended force plaintiffs to maintain two separate suits arising under the same set of facts when Court "can move toward final resolution much more efficiently." Hansen v. California Dep't of Corrections 920 F. Supp. 1480 1500 (N.D. Cal. 1996).

2. Jermon's State Law Claims for Invasion of Privacy and Battery

Under California Government Code section 815.2(b) a public entity is not liable for an injury caused by its employee if that employee is immune from liability. See Cal. Gov't Code SEC. 815.2(b) (West 1997). On February 3 1997 Court concluded that Caldwell and Elliott were entitled to immunity under state law pursuant to California Government Code section 815 and dismissed all state claims for relief against them. See Order February 3 1997. Plaintiffs concede that given Court's determination that Caldwell and Elliott are entitled to state immunity all state claims against the County and Community Hospital must be dismissed. Because Court's February 3 1997 Order was not in error the third and fifth claims for relief against the Hospital and County are dismissed pursuant to California Government Code section 815.2.

3. SCOPE's Claim for Injunctive Relief

Courts do not have jurisdiction under Article III to review a plaintiff's claim where that plaintiff has failed to demonstrate substantial hardship or injury. See Poe v. Ullman 367 U.S. 497 6 L. Ed. 2d 989 81 S. Ct. 1752 (1961). SCOPE alleges that defendants have violated Article I section 1 of the California Constitution by requiring union members "to undergo urine and blood testing as a condition of continuing employment." (Complaint PP 31-32.) SCOPE's claim for injunctive relief is not yet ripe for judicial review because SCOPE cannot demonstrate substantial hardship or injury. See Abbott Laboratories v. Gardner 387 U.S. 136 149 18 L. Ed. 2d 681 87 S. Ct. 1507 (1967).

Court has already concluded that Jermon was not subjected to a fitness for duty examination in violation of his constitutional rights. SCOPE has not presented any evidence that defendants have subjected or threatened to subject any other union employee to a fitness for duty examination as a condition of continued employment. Because Court does not have jurisdiction to decide an abstract disagreement it declines to decide SCOPE's claim for injunctive relief. See Abbott Laboratories 387 U.S. at 148. Plaintiffs' seventh claim for relief is therefore dismissed without prejudice.

CONCLUSION

For the foregoing reasons defendants' motion for judgment on the pleadings is DENIED. Defendants' motion for summary judgment is GRANTED as to plaintiffs' first six claims for relief. Plaintiffs' seventh claim for relief is DENIED without prejudice. Judgment shall be entered for defendants in accordance with this Order. The trial and pre-trial conference dates are VACATED.

For the reasons stated in the accompanying order JUDGMENT is hereby entered in favor of defendants and against plaintiffs. The Clerk of Court shall close the file.

 
Notes:

*fn1 This section briefly discusses the relevant facts in this action. A more detailed account of circumstances relating to Jermon's claims was set forth in the Court's Order granting summary judgment in favor of Caldwell and Elliott. See Order Granting in Part and Denying in Part Defendants' Motion to Dismiss and Granting Defendants' Motion for Summary Judgment February 3 1997.

*fn2 Moreover Jermon's allegation that Community Hospital ordered additional "surreptitious" tests is unfounded. Steve Brown a lab technician at Community Hospital stated that the additional lab tests toxicology screens were ordered because Community Hospital did not have the capability to complete those tests that night. (Declaration of Steve Brown ("Brown Decl.") P 4-6.)

*fn3 Plaintiffs should be aware that playing fast and loose with the facts and law did not help to advance their positions in regard to this motion.