Flynn v. Sandahl

Decision Date16 June 1995
Docket NumberNo. 93-3886,93-3886
Citation58 F.3d 283
Parties10 IER Cases 1187 Wesley FLYNN, Plaintiff-Appellant, v. David G. SANDAHL, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Teresa Machicao-Hopkins (argued), James E. Hopkins, Machicao & Associates, Marion, IL, for Wesley Flynn.

Jacqueline M. Zydeck, Office of Atty. Gen., Civ. Appeals Div., Chicago, IL (argued), for David G. Sandahl.

Before RIPPLE and MANION, Circuit Judges, and SKINNER, District Judge. *

MANION, Circuit Judge.

The plaintiff, Wesley Flynn, brought this suit for injunctive relief against the defendant, claiming that the defendant's request that he submit to a psychiatric examination violated his constitutional rights to privacy, procedural due process as well as state law. The court initially granted Flynn's request for preliminary injunctive relief, but later granted summary judgment in favor of the defendant based on qualified immunity. Flynn appeals from this judgment, which we affirm on the alternate ground that the undisputed facts of this case demonstrate that Flynn's claims lack merit.

I.

At all times relevant to this suit, Flynn was a correctional officer at the Shawnee Correctional Center located in Vienna, Illinois. The parties agree that Flynn was a civil servant under Illinois law, such that he could not be discharged except for cause. See 20 ILCS 415/11 (1993).

The dispute in this case arose when several of Flynn's coworkers complained to prison administration officials that Flynn had threatened them with physical harm. Pursuant to an administrative directive issued by the Illinois Department of Corrections, the Warden at Shawnee, David Sandahl, determined that Flynn should undergo a psychiatric examination. Prior to ordering the examination, Sandahl directed Major Waters, another correctional officer at Shawnee, to arrange an informal meeting during which Sandahl could discuss with Flynn the grounds for the examination. Major Waters telephoned Flynn asking that he attend a meeting with Sandahl, but Flynn refused. Sandahl next personally telephoned Flynn to discuss the situation. During this conversation Flynn informed Sandahl that it was his understanding that Sandahl intended to request Flynn to submit to a psychiatric examination. Sandahl confirmed Flynn's understanding; he also informed him that the complaints against him formed the basis for the decision to request the examination. Flynn advised Sandahl that he would not attend the examination unless ordered to do so, which Sandahl did over the phone and later by letter. Flynn refused this and a subsequent order. As a result, Flynn was charged with insubordination and ordered to attend a hearing before an arbitrator at which it would be determined whether Flynn should be discharged for insubordination.

Flynn responded by filing an action against Sandahl under 42 U.S.C. Sec. 1983. In his complaint, Flynn alleged that Sandahl's orders directing him to submit to a psychiatric examination violated his rights to privacy and procedural due process. As relief, Flynn requested a TRO and a preliminary injunction ordering Sandahl to show good cause for requiring the psychiatric exam. Flynn also requested attorney's fees and costs and "other such relief as this court may deem just and proper." Following a hearing on Flynn's TRO application, the district court denied Flynn's request, but granted him leave to reapply upon receipt of notice of suspension or discharge for his refusal to take the psychiatric examination.

Shortly thereafter, the Shawnee Employee Review Board held a hearing on Sandahl's charge that Flynn had been insubordinate in refusing to take the psychiatric exam. Following the hearing, at which Flynn and several correctional officers testified, the employee review officer determined that Flynn had been insubordinate and recommended that he be suspended pending discharge. Sandahl accepted the review officer's findings and directed that Flynn be suspended pending discharge.

Upon receipt of this notice of discharge, Flynn filed a second application for a TRO. This application was granted and the matter was set for a hearing on Flynn's request for a preliminary injunction. Prior to the hearing, Flynn filed a motion for summary judgment, requesting that Sandahl be permanently enjoined from requiring him to undergo a psychiatric examination unless good cause could be shown at a hearing in which Flynn would be allowed to confront witnesses and present evidence in opposition to the examination. However, in his memorandum attached to his motion, Flynn did not argue that he was denied due process; rather, he argued exclusively that Sandahl's order requiring him to submit to a psychiatric examination violated his constitutional right to privacy. At the preliminary injunction hearing, Flynn repeated that he was relying exclusively upon the theory that Sandahl had violated his right to privacy.

The district court granted Flynn's request for a preliminary injunction. While it acknowledged that Flynn had couched his arguments at the hearing in terms of a right to privacy, the district court never ruled on the merits of this claim. Instead, it granted Flynn relief based on what it perceived as a stronger claim that Sandahl had violated Flynn's due process rights by not providing him a hearing during which he could challenge the propriety of the psychiatric examination. The court therefore entered an order prohibiting Sandahl from ordering Flynn to undergo the examination or discharging him for refusing to take the examination until the court determined the merits of Flynn's claim or rescinded its order.

Following the district court's order, Sandahl filed a cross-motion for summary judgment. In his motion, Sandahl argued that Flynn was not denied due process. As to Flynn's claim that the order to take the psychiatric examination violated his right to privacy, Sandahl submitted that he was entitled to qualified immunity because at the time he ordered the examination the law was not clear that Flynn had a right to refuse it. Flynn never filed a response to Sandahl's motion.

The district court denied Flynn's motion for summary judgment and granted Sandahl's. The court did not refer to the due process theory it relied upon as its basis for granting the preliminary injunction. Instead the court found that at the time Sandahl ordered Flynn to take the examination, there was no clearly established constitutional right to refuse to obey such an order, and on that basis concluded that Sandahl was entitled to the defense of qualified immunity. The court therefore entered judgment in favor of Sandahl and against Flynn, and dissolved its previous preliminary injunction.

Flynn filed a timely notice of appeal. However, he did not request a stay of the district court's dissolution of the preliminary injunction. Prior to briefing and argument before this panel, Flynn was discharged from the Shawnee Correctional Center based on his acts of insubordination in refusing to submit to the examination. 1 On appeal, Flynn requests this court to reverse the district court's determination that Sandahl was entitled to qualified immunity, and remand for further proceedings on the merits of his complaint.

II.

Before reaching the merits, we must first determine whether we have jurisdiction to hear Flynn's appeal. As mentioned above, Flynn was discharged pending his appeal. Because Flynn's complaint only sought injunctive relief, and since he is no longer employed at the Shawnee Correctional Center, Sandahl submits that Flynn is no longer subject to the possibility of being ordered to take the psychiatric examination, meaning that we must dismiss his appeal as moot.

The proper test for mootness on appeal is not whether we may return the parties to the status quo ante, but rather, whether it is still possible to "fashion some form of meaningful relief" to the appellant in the event he prevails on the merits. Church of Scientology v. United States, --- U.S. ----, ----, 113 S.Ct. 447, 450, 121 L.Ed.2d 313 (1993) (emphasis in original). Under that standard Flynn's appeal is not moot. One of Flynn's claims on appeal is that Sandahl deprived him of procedural due process when he ordered Flynn to submit to a psychiatric examination without first offering him a hearing in which he could challenge the propriety of the order. Were we to agree with Flynn that this constituted a denial of due process (which we do not, as we shall soon see) it would still be possible for us to grant Flynn relief. Although it is too late to prevent the initial insubordination proceedings against Flynn, it would still be possible for us to order that he be reinstated pending a hearing during which he could challenge the grounds for the psychiatric examination. See, e.g., Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir.1985) (noting that one possible remedy for a pretermination denial of due process is to order reinstatement pending a hearing); Jackson v. Stinchcomb, 635 F.2d 462, 469 (5th Cir.1981) (same). And since such an order would be for prospective injunctive relief, it would not be barred by the Eleventh Amendment, see Dwyer, 777 F.2d at 836, which comes into play here because Flynn sued Sandahl in his official capacity. Thus, some form of relief is available, which is sufficient, according to Church of Scientology, to prevent Flynn's appeal from being dismissed as moot.

Nor is our conclusion altered by the fact that Flynn did not seek a stay of the district court's judgment pending his appeal. A motion to stay under Fed.R.Civ.P. 62 is not a jurisdictional prerequisite comparable to timely filing a notice of appeal. See In re UNR Indus., Inc., 20 F.3d 766, 769 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 509, 130 L.Ed.2d 416 (1994); 9 Moore's Federal Practice, p 208.03 at 8-9 to 8-10 (2d ed. 1994). The purpose of a stay is simply to preserve the status quo. In the event a...

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