Hansen v. California Dept. of Corrections, C-95-2251 WDB.

• Decision Date: 25 March 1996
• Docket Number: No. C-95-2251 WDB.,C-95-2251 WDB.
• Citation: 920 F. Supp. 1480
• Court: U.S. District Court — Northern District of California
• Parties: Teresa L. HANSEN, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

920 F. Supp. 1480

Teresa L. HANSEN, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

No. C-95-2251 WDB.

United States District Court, N.D. California.

March 25, 1996.

COPYRIGHT MATERIAL OMITTED

Gregory L. Hartwell and Sharon M. Shiller Hartwell, of Hartwell & Hartwell, Sacramento, CA, for plaintiff Teresa L. Hansen.

Geoffrey A. Beaty and Beverly M. Ma, of Fisher & Hurst, San Francisco, CA, for defendants California Department of Corrections, James Gomez, Daniel B. Vasquez, Edward V. Russell, and Robert I. Kim.

OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

BRAZIL, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Teresa Hansen was subjected by her employer, the California Department of Corrections (CDC), to drug testing involving direct visual observation of urination. Hansen is suing the CDC, its director at the pertinent time, the warden of the facility in which she worked, and the officers who administered the drug testing, alleging violations of the Fourth Amendment, the federal constitutional right to bodily privacy, and the California Constitution's right to privacy. Defendants claim immunity under both federal and California law. Both sides have filed cross-motions for summary judgment.

While we believe that the U.S. Constitution probably prohibits direct observation of urination during drug testing absent reasonable, individualized, and articulable suspicion of an intent to tamper with the urine sample, we grant summary judgment to defendants regarding Hansen's federal claims on qualified immunity grounds, for the law governing Hansen's federal claims was not "clearly established" at the time defendants' conduct took place.

We reject the immunity claims of two of the defendants (the officers who administered the drug testing) under California law, because these two defendants were not exercising discretion but simply following a policy set by others when they required the drug testing to be directly observed. We are unable to determine from the record before us whether two other defendants (the director of the CDC and the warden at the facility where Hansen worked) are protected by immunity under California law.

When we reach the merits, we find that defendants' drug testing procedures violated the California Constitution's right to privacy. We therefore grant summary judgment on the issue of liability (as opposed to the amount of damages) on Hansen's California law privacy claim against the two defendants found not to be immune.

II. FACTS

Hansen is a female CDC correctional officer stationed at a correctional facility called CTF-Soledad (Soledad). See Defendant's Statement in Opposition to Plaintiff's Statement of Undisputed Material Facts (DSO) ¶ 1. In addition to CDC, Hansen is suing four CDC officers in their official and individual capacities: James Gomez, CDC's director at the time the drug testing giving rise to this action took place; Daniel Vasquez, Soledad's warden during some of the time that the drug testing took place; Edward Russell, an investigative captain at Soledad at the time of the drug testing; and Robert Kim, a sergeant at Soledad at the time of the drug testing. DSO ¶ 3.

Hansen has been employed by CDC for more than eight years. DSO ¶ 1. Hansen has regular contact with inmates; one of her responsibilities is supervising a work crew of about ten inmates. Hansen Dep. at 229.

In October 1993, Hansen revealed to Russell, the investigative captain, that she had used marijuana (in an off-duty setting) on one occasion during the time she was employed at CDC and that she had used cocaine on several occasions many years earlier, before the beginning of her employment at CDC. DSO ¶¶ 6-8. CDC took an "Adverse Action" against Hansen, which, among other disciplinary measures, required Hansen to submit to random drug testing for a one-year period. DSO ¶ 10. Hansen signed an agreement to voluntarily submit to random drug testing from January 18, 1994, through January 18, 1995. DSO ¶ 11. This agreement provided that the drug testing would be conducted in accordance with guidelines set forth in the collective bargaining agreement between CDC and the correctional employees' union. DSO ¶ 11.

The collective bargaining agreement in question, referred to by the parties as the Memorandum of Understanding (MOU), contains the following provision:

During the term of this agreement, the State agrees to study the need to retain direct observation of the employee providing the urine sample, and will meet and confer with CCPOA the employees' union upon completion of the study, or upon CCPOA request. The State and CCPOA may also mutually agree to modify this section in response to new technology or other improved procedures.

See Plaintiff's Response to Defendants' Statement of Undisputed Material Facts in Support of Defendants' Motion for Summary Judgment (PRD) ¶ 39 (emphasis added). The MOU does not contain any other provision that alludes to direct observation of drug testing. See Defendants' Response to Plaintiff's Statement of Additional Undisputed Material Facts in Opposition to Defendants' Motion for Summary Judgment (DRP) ¶ 4.

In the negotiations of the MOU, the employees' union objected to direct visual observation of urination during drug testing, threatened to sue CDC if direct observation continued, and never explicitly agreed to direct observation. DRP ¶¶ 1-3. Defendants have presented evidence that would support an inference that the union negotiators understood, at the time the MOU was signed, that the CDC intended to continue using direct observation of urination during drug testing of prison employees, even though there was no provision in the MOU expressly authorizing such direct observation. DRP ¶ 4.

The drug testing was administered by defendant Kim, the sergeant. Before the first drug test, Kim and Russell discussed the drug testing procedure and Russell told Kim that direct observation of urination was required by policy. Kim Dep. at 14-16, 19; Russell Dep. at 14, 19. The first drug test occurred on February 9, 1994. Prior to the administration of the test, Kim informed Hansen that the testing procedure would involve 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 ¶¶ 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 ¶ 22. In each of these drug tests, Hansen's urination was directly observed by a female monitor. DSO ¶ 23.

Vasquez, Russell, and Kim each testified in depositions that CDC policy requires direct observation of urination during drug testing of employees. PRD ¶¶ 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 ¶ 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 ¶ 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.

III. PROCEEDINGS

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...