The opinion of the court was delivered by: CLARKSON S. FISHER
The plaintiff, Fulvio Stanziale, was employed by the Board as a Sanitary Inspector effective September 10, 1990. Upon his arrival at work on March 29, 1994, plaintiff found a urine specimen container and a chain of custody form on his desk. Defendant Lester Jargowsky, the plaintiff's immediate supervisor, requested that plaintiff and several of his co-workers provide a urine specimen for drug testing. Citing the absence of any circumstances which would trigger drug testing under the terms of the Board's drug policy, plaintiff refused to produce a urine specimen. On March 31, 1994, Jargowsky issued a formal Notice of Minor Disciplinary Action which cited, among other reasons, Stanziale's failure to comply with the drug policy. The penalty imposed pursuant to that disciplinary action was a four-day suspension without pay, effective April 5, 1994.
On or about April 15, 1994, the county drug testing policy was suspended, pending legal review. Upon comprehensive evaluation of the policy, county counsel recommended permanent suspension. On June 21, 1994, the Board implemented counsel's recommendations and rescinded the policy by formal written resolution. The Board also formally rescinded the Notice of Disciplinary Action and the suspension imposed upon plaintiff. In addition, plaintiff has received the salary that was previously withheld in connection with his suspension.
Meanwhile, on April 25, 1994, plaintiff filed the instant complaint against the Board of Health and Lester Jargowsky, pursuant to 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments to the United States Constitution and various state law grounds. Insofar as the drug policy under which this case arises has been rescinded, plaintiff concedes that his claims for injunctive and declaratory relief as sought in Count One (a), (b) and (c), Count Two (a), (b) and (c) and Count Three (a), (b) and (c) are moot. Those claims are therefore dismissed. In Counts Four through Seven, plaintiff asserts that Jargowsky's conduct in suspending plaintiff for four days without pay violated his Fourteenth Amendment due process rights, his state constitutional due process rights, the public policy of the state of New Jersey and certain statutory and regulatory requirements. Again, insofar as the Board has rescinded the disciplinary action against plaintiff and restored the salary which had been withheld from him, plaintiff concedes that the causes of action raised in Counts Four through Seven of the complaint are moot. Those claims, therefore, are also dismissed.
In the remaining counts of the complaint, plaintiff maintains that the disciplinary action taken against him because of his refusal to comply with the request to produce a urine Specimen violated his right to be free from unreasonable searches and seizures as secured by the federal and state constitutions. He also maintains that as a result of Jargowsky's alleged improper conduct he was caused to sustain genuine and substantial emotional distress.
Presently before the court is defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted. It is defendants' position that there was no Fourth Amendment violation because no search ever occurred. Defendants argue, therefore, that plaintiff's claims must be dismissed because, absent constitutional injury, there can be no relief under 42 U.S.C. § 1983. For the reasons discussed in Part I of this opinion, the motion to dismiss is denied. As an alternative, both defendants have moved pursuant to Fed. R. Civ. P. 56 for entry of an order granting summary judgment in their favor based on the doctrine of qualified immunity. For the reasons discussed in Part II of this opinion, the motion is granted with respect to the claims against defendant Jargowsky in his individual capacity, but denied with respect to the claims against the Board and Jargowsky in his official capacity. The final application pending before the court is plaintiff's motion for partial summary judgment on the issue of liability against both defendants on the ground that the Board's drug testing policy, as applied to plaintiff by Jargowsky, violated plaintiff's federal and state constitutional rights to be free from unreasonable searches and seizures. For the reasons discussed in Part III of this opinion, that motion is granted.
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the allegations contained in the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In appraising the sufficiency of the complaint, the critical inquiry is whether, taking the allegations of the complaint as true and viewing them liberally, giving plaintiff the benefit of all inferences which fairly may be drawn therefrom, it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 444 (3d Cir. 1977), cert. denied, 434 U.S. 1086, 98 S. Ct. 1280, 55 L. Ed. 2d 791 (1978); Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
To sustain a claim under 42 U.S.C. § 1983, a plaintiff must establish that he has been deprived of a right secured by the Constitution and the laws of the United States, and that such deprivation of rights was caused by a person acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978). Plaintiff's § 1983 claim is predicated on the alleged deprivation of his right to be free from unreasonable searches and seizures as secured by the Fourth Amendment. It is beyond dispute that a mandatory urinalysis constitutes a search within the meaning of the Fourth Amendment. Skinner v. Railway Labor Exec. Ass'n, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989). Pointing out that Stanziale refused to comply with the order to produce a urine specimen for testing, defendants argue that there can be no Fourth Amendment violation where no actual search has occurred. In light of the contrary authority on that issue, defendants' argument must fail.
As the Supreme Court held in Gardner v. Broderick, 392 U.S. 273, 20 L. Ed. 2d 1082, 88 S. Ct. 1913, (1968), it is improper to punish an employee for exercising rights guaranteed to him under the Constitution. Based on that premise, the Ninth Circuit Court of Appeals has held, and this court agrees, "because the right to be free from unreasonable searches is contained explicitly in the Fourth Amendment, it follows that the right to be free from adverse consequences for refusing to submit to an unreasonable search must also be found there." Jackson v. Gates, 975 F.2d 648, 653 (9th Cir. 1992), cert. denied, 113 S. Ct. 2996, 125 L. Ed. 2d 690 (1993). Likewise, in Fraternal Order of Police, Lodge No. 5 v. Tucker, 868 F.2d 74 (3d Cir. 1989), wherein police officers sought recovery for Fourth Amendment violations in connection with their discharge for refusal to submit to urinalysis, the court implicitly found that such refusal implicated the Fourth Amendment when it proceeded to analyze the reasonableness of the city's conduct in ordering the drug testing. See also, Egloff v. New Jersey Air National Guard, 684 F. Supp. 1275, 1279, n.2 (D.N.J. 1988) ("We reject unhesitatingly the government's somewhat facile argument that because the Egloffs refused to take a urinalysis and no "search" actually occurred, there can be no violation of the Fourth Amendment").
In urging the court to find that the Fourth Amendment is not implicated in this case, defendants inappropriately rely on the district court's decision in Everett v. Napper, wherein the court granted the defendant's motion for summary judgment on the plaintiff's Fourth Amendment claim, holding that there can be no Fourth Amendment violation when there has been no actual search. 632 F. Supp. 1481, 1484 (N.D. Ga. 1986). Although the Eleventh Circuit Court of Appeals affirmed the grant of summary judgment, finding no violation of the Fourth Amendment it did so because it found that the drug testing procedures utilized in that case were reasonable under the circumstances presented.
Everett v. Napper, 833 F.2d 1507, 1511-12 (11th Cir. 1987). Notwithstanding that the plaintiff had refused the order to submit to a urine screening, the court nevertheless observed that "because Everett's continued employment was contingent upon his subjection to a search, we must determine whether the search offended the Fourth Amendment." Id. at 1511. Thus, contrary to defendants' contention, is consistent with those cases previously cited in this opinion and lends further support for this court's holding that a public employee may properly raise a Fourth Amendment challenge to an employer's order to undergo urine screening for the detection of drugs if adverse consequences follow from refusal to comply with that order. In this case, the Board imposed a four day suspension without pay for Stanziale's refusal to submit a ...