fit to perform their duties. See Von Raab, 489 U.S. at 670. It is also clear from the cases that an individual has a legitimate privacy interest in not being compelled to submit to a physical intrusion such as a blood test. To determine whether Krocka has stated a claim for a Fourth Amendment violation, these interests must be balanced. The complaint alleges that in October 1990, Krocka was diagnosed as suffering from a dysthymic disorder, resulting in symptoms of depression, feelings of low self esteem, sad affect, irritability and pessimism. It further alleges that, without medication, Krocka's condition made it nearly impossible for him to work. However, after taking Prozac--a legally prescribed medication--his condition improved greatly. The treatment with Prozac reportedly eliminated the detrimental symptoms of Krocka's depression without impairing his cognitive abilities, reaction time, driving skills or general performance and ability, and allowed him to fully perform his duties as a police officer. On the other hand, the City claims that it has a legitimate interest in ensuring that its officers are "emotionally and psychologically fit for duty." It cites cases holding that government tests for illegal drugs or alcohol do not violate the Fourth Amendment because they were justified by national security and safety concerns. Von Raab, 489 U.S. at 676; Skinner, 489 U.S. at 628.
In light of the facts as alleged, Krocka has stated a claim for the violation of his Fourth Amendment rights. According to the complaint, the City's safety concerns about Krocka arising from his use of Prozac are essentially nonexistent. There is no indication that testing the level of Prozac in Krocka's blood would have provided the CPD with any information that he was a danger to himself or the public. On the other hand, Krocka has a substantial privacy interest in his bodily integrity. On the facts alleged, Krocka's privacy interests outweigh the City's safety concerns. Skinner and Von Raab are distinguishable because, in those cases, the government's measures actually advanced its legitimate interest in public safety because the tests were for illegal drugs or alcohol, which affected performance or behavior. In contrast, when viewing the facts in the light most favorable to Krocka, Bransfield's testing of Krocka for the level of Prozac in his system did nothing to advance the City's legitimate interest in public safety. Thus, the complaint states a claim that Bransfield violated Krocka's Fourth Amendment rights.
Bransfield argues that, even if the complaint states a claim for a violation of Krocka's Fourth Amendment rights, he is qualifiedly immune from liability. Although more often raised at the summary judgment stage, the qualified immunity defense may be raised at the 12(b)(6) stage. Kernats v. O'Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994). Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Id.
Krocka bears the burden of establishing that the constitutional or statutory right allegedly violated was clearly established at the time Bransfield acted. Lawshe v. Simpson, 16 F.3d 1475, 1483 (7th Cir. 1994). This requires Krocka to offer a closely analogous case or evidence that Bransfield's conduct was so patently violative of the constitutional right in question that reasonable officials would know without guidance from the courts. Id.
Krocka has offered no closely analogous case demonstrating that Bransfield's conduct was unlawful. Instead, he argues that prior to the blood test, "federal statutory law clearly established . . . that it was unlawful to require a medical examination and to make inquiries 'as to the nature and severity of the disability'" (citing 42 U.S.C. § 12112(d)(4)(A)). In other words, to defeat Bransfield's qualified immunity defense to the Fourth Amendment claim, Krocka argues that Bransfield violated the ADA--clearly established statutory law of which a reasonable person would have known. This argument fails. A government official does not lose his immunity "by violating the clear command of a statute or regulation--of federal or state law--unless that statute or regulation provides the basis of the cause of action sued upon." Davis v. Scherer, 468 U.S. 183, 195 n. 12, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984); see also Elder v. Holloway, 510 U.S. 510, 114 S. Ct. 1019, 1023, 127 L. Ed. 2d 344 (1994) (explaining Davis); Triad Associates v. Robinson, 10 F.3d 492, 499 n. 9 (7th Cir. 1993). In this case, Bransfield is claiming qualified immunity with respect to the Fourth Amendment claim. Thus, even if Bransfield's conduct violated the clear command of the ADA, that does not strip him of his qualified immunity as to the Fourth Amendment claim.
Although he cannot cite an analogous case, Krocka also argues that at the time Bransfield acted, "the law was clearly established that the Fourth Amendment proscribes all searches and seizures which are unreasonable." He cites Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966), for the proposition that conducting bodily intrusions on the mere chance that evidence might be found is forbidden by the Fourth Amendment. He notes that the purpose of the blood test was to measure the level of a legally prescribed medication and that a forced blood test under such circumstances is clearly unreasonable. In effect, Krocka is arguing that Bransfield's conduct was so patently violative of his Fourth Amendment rights that a reasonable official would have known without guidance from the courts.
Bransfield responds by arguing that existing law permitted him to order the blood test. In essence, his argument is that his alleged actions did not violate the Fourth Amendment. However, the court has already determined that Krocka stated a claim for such a violation. The question is whether the law at the time was sufficiently clear that a reasonable official in Bransfield's position would have known that he was violating Krocka's rights. See Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).
Given the facts that must be presumed true at this stage, the court concludes that the law was sufficiently clear that Bransfield should have known that ordering a blood test to measure levels of a legally prescribed drug was a violation of Krocka's Fourth Amendment rights. Although Krocka has not pointed to any case where a public official ordered an employee to undergo a blood test to measure the level of Prozac in the employee's system, this does not conclusively establish that Bransfield's conduct was objectively reasonable. The cases the parties do cite all involve tests for either illegal narcotics or alcohol. See Von Raab, 489 U.S. at 662 (urine testing for illegal narcotics); Skinner, 489 U.S. at 609-11 (blood, urine and breath tests for alcohol and illegal drugs); Schmerber, 384 U.S. at 758 (blood test for illegal level of alcohol). These tests are not comparable to the one ordered in this case because illegal narcotics or alcohol are capable of impairing one's judgment and testing for them is an effective means to advance the government's legitimate interest in safety. On the current record, there is no indication that Prozac, like alcohol or illegal narcotics, has the capacity to impair one's judgment. Although it affects the mind, it does so by alleviating depression. Rather than being evidence that Prozac impairs one's judgment, this appears to be evidence that Prozac helps return the mind to a normal state. The court is not disturbed by the lack of similar cases. An analogy would be ordering Krocka to undergo testing to determine the level of aspirin in his system. There is no case that holds that a blood test for aspirin violates an employee's Fourth Amendment rights but only because the violation would be so obvious. Eberhardt v. O'Malley, 17 F.3d 1023, 1028 (7th Cir. 1994) (denying qualified immunity despite lack of similar case law because "this is such an elementary violation of the First Amendment that the absence of a reported case with similar facts demonstrates nothing more than widespread compliance with well-recognized constitutional principles"); K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) ("The easiest cases don't even arise.").
The facts alleged in the complaint demonstrate that Bransfield had no legitimate safety concern with respect to the level of Prozac in Krocka's system. There was no evidence that Prozac caused Krocka to be dangerous to himself or others. Indeed, Bransfield, who is a doctor, had been informed twice by Krocka's doctors that Krocka was being closely monitored and that he was able to perform fully his duties as a police officer. Therefore, Bransfield had no reason to believe that he had a reasonable basis for monitoring the level of Prozac in Krocka's system. A mandatory blood test that fails to serve any governmental interest is violative of an individual's Fourth Amendment rights. The court concludes that, on the facts alleged in the complaint, Bransfield is not entitled to qualified immunity. Therefore, the court denies Bransfield's motion to dismiss Count II.
C. THE STATE LAW CLAIMS
Counts III, IV and VII are Krocka's pendent state law claims.
Count III is a willful and wanton conduct claim against Riegler. Krocka alleges that Riegler's actions towards him were based on corrupt or malicious motives, and were taken deliberately and wilfully or with such gross negligence as to indicate a wanton and reckless disregard for Krocka's rights and safety. Count IV is a respondeat superior claim against the city for Riegler's alleged willful and wanton conduct, and Count VII is a claim for intentional infliction of emotional distress against Riegler, Wedgbury, Bransfield and the City.
Defendants have moved for dismissal of these state law claims for lack of subject matter jurisdiction pursuant to the Illinois Supreme Court's holding in Geise v. The Phoenix Company of Chicago, 159 Ill. 2d 507, 639 N.E.2d 1273, 203 Ill. Dec. 454 (1994). Under Illinois law, when the allegations on which a state law tort is based constitute a civil rights violation under the Illinois Human Rights Act (IHRA), the tort is preempted. Id. Defendants assert that Krocka's state law claims are based solely on the allegations that defendants discriminated against Krocka based on his disability. Because such discrimination is prohibited by the IHRA, they claim that Krocka's claims are essentially ones for civil rights violations under the IHRA and should have been brought before the Illinois Human Rights Commission.
Courts in the Northern District of Illinois are "routinely" dismissing common law torts that are brought in conjunction with civil rights claims. Daulo v. Commonwealth Edison, 938 F. Supp. 1388, 1404 (N.D.Ill. 1996). This court has previously addressed this issue as to the tort of intentional infliction of emotional distress, holding that it was preempted. Stahnke v. LMLM Inc., 1996 U.S. Dist. LEXIS 1199, 1996 WL 48610 (N.D.Ill.). "When determining if the state claim . . . is 'inextricably linked' to the discrimination claim, the courts generally look to whether the state claim could form an independent basis for imposing liability, absent the allegations of discrimination." Daulo, 938 F. Supp. at 1405.
Predictably, plaintiff's response is that the allegations in his state law claims are not "inextricably linked" to disability discrimination because he would have a cause of action whether or not he is disabled and whether or not defendants' actions toward him were motivated by his disability. The problem with this argument is that plaintiff has not separated the allegations in the complaint from his disability and instead has inextricably linked them to his depression or to his taking Prozac. As defendants point out, in each of his state law counts, plaintiff repeats and realleges each allegation that made up his ADA count. In fact, Count III contains no additional allegations. Although plaintiff provides additional information in Count VII, some of these allegations relate directly to plaintiff's disability. For example, he states that Riegler made disparaging comments to him about his hypertension and depression and that Bransfield based Krocka's placement in the Personnel Concerns Program solely on his taking Prozac. Plaintiff cannot separate his state law claims from his claims of discrimination based on disability. Because they are "inextricably linked," Geise preempts them. Accordingly, the defendants' motion to dismiss Counts III, IV and VII is granted.
ORDERED: Defendants' motion to dismiss is granted in part and denied in part: Defendants' motion to dismiss Count I is granted as to Riegler, Wedgbury, Bransfield, Woods, Rodriguez, Standard, and Stanard & Associates; and denied as to the City. Defendants' motion to dismiss Count II is denied; and the motion to dismiss Counts III, IV and VII is granted. Defendants Riegler, Wedgbury, Woods, Rodriguez, Standard, and Stanard & Associates are dismissed from the action. Remaining claims include the ADA claim against the City of Chicago, and the Fourth Amendment claim against Bransfield.
George W. Lindberg
United States District Judge
DATED: MAR 21 1997