Greenawalt, Kristin v. IN Dept Corrections

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1997
KRISTIN A. GREENAWALT,
Plaintiff-Appellant,
v.
INDIANA DEPARTMENT OF CORRECTIONS,
WILLIAM K. KROMANN, and KATHY J. LISBY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 02-0731—Larry J. McKinney, Chief Judge.
____________
ARGUED JANUARY 11, 2005—DECIDED FEBRUARY 14, 2005
____________
Before POSNER, MANION, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Two years after Kristin Greenawalt
was hired by the Indiana Department of Corrections as a
research analyst, she was told that to keep her job she would
have to submit to a psychological examination. The record,
limited as it is to the complaint, is silent on the reason for so
belated a demand. But she complied and later brought this
suit under 42 U.S.C. § 1983 against the Department and two
of its officials (whom she sued in their individ-
ual capacity)—her immediate supervisor and the official
who had ordered her to take the test. She claimed that
2 No. 04-1997
the test, which lasted two hours and inquired into details of
her personal life, constituted an unreasonable search
in violation of her Fourth Amendment right to be free
from unreasonable searches and seizures. Also, invoking the
supplemental jurisdiction of the district court, 28 U.S.C. §
1367, she claimed that whether or not the test was a search,
requiring her to take it if she wanted to keep her job both
invaded her privacy and deliberately inflicted emotional
distress on her, and so violated Indiana’s common law of
torts. She asked for damages plus an injunction that would
require the defendants to expunge the results of the test
from her personnel file.
The district judge dismissed the suit on the pleadings.
He ruled that the Department of Corrections could not be
sued under section 1983 because it is not a “person” within
the meaning of that statute, Will v. Michigan Dept. of State
Police, 491 U.S. 58 (1989); Illinois Ass’n of Mortgage Brokers
v. Office of Banks & Real Estate, 308 F.3d 762, 764-65 (7th
Cir. 2002), and that the suit against the individual defen-
dants was barred by the doctrine of official immunity
because the right that the plaintiff was seeking to enforce
had not been clearly established in the case law when
she brought the suit. Saucier v. Katz, 533 U.S. 194, 201-02
(2001); Anderson v. Creighton, 483 U.S. 635, 638-40 (1987);
Campbell v. Peters, 256 F.3d 695, 699 (7th Cir. 2001). Having
thus dismissed the plaintiff’s federal claims, the judge
relinquished jurisdiction over her state-law claims.
The judge was mistaken about the defendants’ immunity
concerning the injunctive relief sought, because the de-
fense of official immunity is applicable only to liability
for damages. Flynn v. Sandahl, 58 F.3d 283, 289 (7th Cir.
1995). But the error is of no consequence because section
1983 does not permit injunctive relief against state offi-
cials sued in their individual as distinct from their offi-
No. 04-1997 3
cial capacity. Luder v. Endicott, 253 F.3d 1020, 1024-25 (7th
Cir. 2001). So the suit was properly dismissed against
the individual defendants insofar as it sought injunctive
relief, as well as against the Department. All that is left
is the damages claims against the two individual defen-
dants.
As noted in Campbell v. Peters, supra, 256 F.3d at 700, we
have been told by the Supreme Court that before reaching
the issue of immunity we should decide whether the
plaintiff has a valid claim. Saucier v. Katz, supra, 533 U.S.
at 201; County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5
(1998). For otherwise the evolution of the law would
be retarded: no case in which only damages were sought
could serve as a vehicle for developing the law. So let
us consider whether subjecting a public employee to a
probing psychological examination is a search. If it is, then
it may well have been an unreasonable one in this case, and
thus violate the Fourth Amendment, because Greenawalt is
merely a researcher. She has no contact with prisoners, is
not armed or privy to state secrets, and has no other powers
or opportunities, so far as we can tell, that would warrant
imposing such a condition of employment, unlike cases
such as Flynn v. Sandahl, supra, 58 F.3d at 289-90 (correc-
tional officer), and Daury v. Smith, 842 F.2d 9, 14 (1st Cir.
1988) (school administrator); cf. National Treasury Employees
Union v. Von Raab, 489 U.S. 656, 672 (1989) (urinalysis of
border-patrol officers); Carroll v. City of Westminster, 233
F.3d 208, 210-11 (4th Cir. 2000) (urinalysis of police officer);
Stigile v. Clinton, 110 F.3d 801, 803 (D.C. Cir. 1997) (urinaly-
sis of persons with access to building adjacent to White
House). But we need not decide this, as we do not think a
psychological test is a search.
Almost any quest for information that involves a physical
touching, which a test does not, is nowadays deemed a
4 No. 04-1997
“search” within the meaning of the Fourth Amendment,
which the Fourteenth Amendment has been interpreted as
making fully applicable to state action. Drawing a tiny
amount of blood from an unconscious person to deter-
mine the level of alcohol in his blood is a search, Breithaupt
v. Abram, 352 U.S. 432, 439-40 (1957); cf. Schmerber v. Califor-
nia, 384 U.S. 757, 766-67 (1966), and so even is administering
a breathalyzer test, Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602, 617 (1989), where physical contact is at its
minimum—the subject’s lips merely touch the breathalyzer.
And so finally is a urine test, Board of Education v. Earls, 536
U.S. 822, 828 (2002), in which the subject is required merely
to provide a urine sample, so that the test instrument does
not touch the subject’s body at all. The invasion of privacy
caused by submitting to the kind of psychological test given
to the plaintiff in this case may well have been more
profound than the invasion caused by a blood test, a
breathalyzer test, or a urine test, though we cannot say for
sure; the test is not in the record—all we know is that,
according to the complaint, “the battery of psychological
tests examined Ms. Greenawalt’s personality traits, psycho-
logical adjustments and health-related issues.” It is true that
she consented to take the test, but had she not done so she
would have lost her job, which, if she had a constitu-
tional right not to take the test, would place a heavy burden
on the exercise of her constitutional rights.
Many cases say that the Fourth Amendment is intended
to protect privacy. E.g., id. at 830-32; Kyllo v. United States,
533 U.S. 27, 32-33 (2001); Skinner v. Railway Labor Executives’
Ass’n, supra, 489 U.S. at 617; Arizona v. Hicks, 480 U.S. 321,
324-25 (1987); Platteville Area Apartment Ass’n v. City of
Platteville, 179 F.3d 574, 579 (7th Cir. 1999); Palmieri v. Lynch,
392 F.3d 73, 81 (2d Cir. 2004). Although this is historically
inaccurate, Boyd v. United States, 116 U.S. 616, 624-30 (1886);
No. 04-1997 5
Orin S. Kerr, “The Fourth Amendment and New Technolo-
gies: Constitutional Myths and the Case for Caution,” 102
Mich. L. Rev. 801 (2004); Raymond Shih Ray Ku, “The
Founders’ Privacy: The Fourth Amendment and the Power
of Technological Surveillance,” 86 Minn. L. Rev. 1325, 1333-
38 (2002), it is not uncommon for constitutional provisions
to be supplied with rationales that the framers and ratifiers
of the provisions would not have recognized. Nor is the
term “a searching inquiry” an oxymoron; wiretapping is
deemed a search even when there is no trespass (the tap will
usually be on a section of the phone line that is outside the
premises on which the phone being tapped resides), though
all that is taken is thoughts, often concerning private
matters, expressed in conversation. Berger v. New York, 388
U.S. 41, 50-51 (1967); Katz v. United States, 389 U.S. 347, 353
(1967); Platteville Area Apartment Ass’n v. City of Platteville,
supra, 179 F.3d at 579. Cases involving the rifling of an
employee’s desk, such as O’Connor v. Ortega, 480 U.S. 709,
725-26 (1987), are similar in this regard: the employee has
no property or possessory interest in his desk, yet the
invasion of his interest in privacy makes the rifling a search.
Nevertheless we do not think that the Fourth Amendment
should be interpreted to reach the putting of questions to a
person, even when the questions are skillfully designed to
elicit what most people would regard as highly personal
private information. The cases we have cited show, it is true,
that a Fourth Amendment claim does not depend on the
claimant’s being able to establish an invasion of such
interests that tort law traditionally protects as the interest in
bodily integrity (protected by the tort of battery), in freedom
of movement (protected by the tort of false imprisonment),
and in property (protected by the torts of trespass and of
conversion). But that is all they show, so far as bears on the
issue in this case. The implications of extending the doctrine
6 No. 04-1997
of those cases to one involving mere questioning would be
strange. In a case involving sex or some other private
matter, a government trial lawyer might be required to
obtain a search warrant before being allowed to conduct a
cross-examination—or the judge before being allowed to ask
a question of the witness. Police might have to obtain search
warrants or waivers before conducting routine inquiries,
even of the complaining witness in a rape case, since they
would be inquiring about the witness’s sexual behavior.
Questioning in a police inquiry or a background investiga-
tion or even a credit check would be in peril of being
deemed a search of the person about whom the questions
were asked. Psychological tests, widely used in a variety of
sensitive employments, would be deemed forbidden by the
Constitution if a judge thought them “unreasonable.”
It was practical considerations such as these that moved
us in United States v. Childs, 277 F.3d 947, 950 (7th Cir. 2002)
(en banc), to hold that asking a question of a person already
in custody is not a “seizure” of the person within the
meaning of the Fourth Amendment. “By asking one ques-
tion about marijuana, officer Chiola did not make
the custody of Childs an ‘unreasonable’ seizure. What
happened here must occur thousands of times daily across
the nation: Officers ask persons stopped for traffic of-
fenses whether they are committing any other crimes. That
is not an unreasonable law-enforcement strategy, either in a
given case or in gross; persons who do not like the question
can decline to answer.” Id. at 954. Of course, Greenawalt’s
situation is different. Theoretically, a person subject to
routine police questions can simply decline to answer
without suffering any adverse consequences. Had
Greenawalt refused to agree to the psychological examina-
tion, she would have lost her job.
Even though administering a lie-detector test involves
placing sensors on the skin of the person being interrogated,
No. 04-1997 7
the Supreme Court has suggested that because the objective
is to obtain testimonial rather than physical evidence, the
relevant constitutional amendment is not the Fourth but the
Fifth. “The Court in Schmerber pointed to the lie detector test
as an example of evidence that is difficult to characterize as
testimonial or real. Even though the test may seek to obtain
physical evidence, we reasoned that to compel a person to
submit to such testing ‘is to evoke the spirit and history of
the Fifth Amendment.’ ” South Dakota v. Neville, 459 U.S. 553,
561 n. 12 (1993), quoting Schmerber v. California, supra, 384
U.S. at 764. The observation is even more apropos with
respect to interrogations that do not involve a physical
touching. Cf. United States v. Childs, supra, 277 F.3d at 951.
The Fourth Amendment was not drafted, and has not been
interpreted, with interrogations in mind. We are not
surprised to have found no appellate case that supports the
plaintiff’s position—which by the way shows that the
district judge was absolutely correct in ruling that the
individual defendants had a good defense of immunity.
Our conclusion that the plaintiff has not stated a Fourth
Amendment claim does not leave people in her position
remediless—or indeed leave her remediless. States are
free to protect privacy more comprehensively than the
Fourth Amendment commands; and Greenawalt is free
to continue to press her state-law claims in state court,
where they belong. In most states if prison officials were
to publicize highly personal information obtained from
someone in Greenawalt’s position by the kind of test
of which she complains, she would have a state-law claim
for invasion of her tort right of privacy. Indiana, it is
true, has thus far refused to recognize this branch of the tort
law of privacy. Felsher v. University of Evansville, 755 N.E.2d
589, 593 (Ind. 2001). But the Fourth Amendment does not
expand accordion-like to fill what may be a gap in the
8 No. 04-1997
privacy law of a particular state. And there are other strings
to the plaintiff’s state-law bow; it is possible, though
perhaps unlikely in light of Cullison v. Medley, 570 N.E.2d
27, 31 (Ind. 1991), that Indiana recognizes “intrusion into a
person’s emotional solace” as an actionable invasion of
privacy. Branham v. Celadon Trucking Services, Inc., 744
N.E.2d 514, 524 (Ind. App. 2001); cf. Pulla v. Amoco Oil Co.,
72 F.3d 648, 652-53 (8th Cir. 1995). Greenawalt may also be
able to obtain mileage from cases, none however in Indiana,
that hold that requiring a public employee to take a lie-
detector test without good cause is an invasion of privacy.
Texas State Employees Union v. Texas Dept. of Mental Health &
Mental Retardation, 746 S.W.2d 203, 206 (Tex. 1987); Long
Beach City Employees Ass’n v. City of Long Beach, 719 P.2d 660,
666 (Cal. 1986). She may also be able to prove intentional
infliction of emotional distress.
Perhaps it could even be argued that the administration
by public officers of a particularly intrusive, and gratu-
itously humiliating, psychological test is a deprivation,
without due process of law, of an interest in privacy that
is an aspect of the liberty protected by the due process
clauses of the Fifth and Fourteenth Amendments. There is
a hint in Whalen v. Roe, 429 U.S. 589, 600 (1977), that the
“interest in nondisclosure of private information” might
indeed constitute a part of that liberty. And Whalen does not
stand completely alone. See Nixon v. Administrator of General
Services, 433 U.S. 425, 457-62 (1977); Denius v. Dunlap, 209
F.3d 944, 955-58 (7th Cir. 2000); Sterling v. Borough of
Minersville, 232 F.3d 190, 196-97 (3d Cir. 2000); but cf. Willan
v. Columbia County, 280 F.3d 1160, 1163-64 (7th Cir. 2002);
Borucki v. Ryan, 827 F.2d 836, 848-49 (1st Cir. 1987). We need
not wrestle the issue to the ground. There is no due process
claim in this case. It is enough to decide this case that the
Fourth Amendment does not provide a remedy for the
No. 04-1997 9
unpleasantness of being subjected to a psychological test,
and that if we are wrong still there is no doubt that the
existence of such a remedy was not clearly established when
this suit was filed.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-14-05