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

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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