Appeal from the United States District Court for the Eastern District of Louisiana. D.C. DOCKET NUMBER CA-90-1955-D. JUDGE A.J. McNamara
Before Politz, Chief Judge, Wisdom, and Wiener, Circuit Judges.
Seven railroad employees*fn1 instituted this action alleging their employer violated their constitutional rights guaranteed by the fourth amendment by the manner in which the employer implemented its mandatory random drug testing program. Because the railroad was acting as an agent for the federal government in testing them, the plaintiffs seek damages under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics.*fn2 The district court found no constitutional violation and granted summary judgment in favor of the railroad. We hold that the railroad is not liable under Bivens for the alleged misconduct. Therefore, we affirm the district court's grant of summary judgment without reaching the constitutionality of the testing procedure.
In January 1990, the Federal Railroad Administration ("FRA") required all Class I*fn3 railroads to begin random urinalysis testing of their employees subject to the Hours of Service Act.*fn4 The regulations require that random drug testing be conducted under the procedures prescribed by the Department of Transportation.*fn5 These procedures provide for observation of the urine collection process only when testing is conducted for cause.*fn6
In preparation for and in response to the required testing, Southern Pacific began training its supervisory personnel on the proper procedures for testing. Southern Pacific also proposed its own plan for testing which was approved by the FRA in 1989. At all times, Southern Pacific maintained a policy of no observation during urine collection. It went to great lengths to ensure that the testing would be conducted in a reasonable and constitutionally acceptable manner. In conjunction with several meetings with its supervisory personnel and the testing facilities' staff members, it formally issued a protocol for testing to the clinics and hospitals that were selected to perform the tests. Both its FRA approved plan as well as its collection procedures manual stated that the workers were not to be observed while providing their urine samples.
On March 3, 1990, Southern Pacific conducted the first random test at an Avondale, Louisiana based job assignment. The railroad's computers randomly selected plaintiffs Raymond G. Lipps, Francis Castille, Jr., and James E. Glaviana to be tested. Southern Pacific instructed the trainmaster on duty to escort the men to the Westbank Surgical Clinic for testing. On the way to the clinic, the trainmaster told the men that they would be observed during the urine collection. The nurse assigned to the testing confirmed this fact in front of the trainmaster. At this time, the doctor on duty entered a room adjoining the collection room and observed, via hidden camera, Lipps and Castille urinating. No one observed Glaviana giving his sample. When the trainmaster discovered this fact, he declared a "no test" for Glaviana.
The following week, the railroad selected a second crew for testing. A different trainmaster escorted plaintiffs Michael L. Ledet and James H. Landry to the Westbank Surgical Clinic. Again, the nurse told the men, in the presence of the trainmaster, that the doctor would observe them. Ledet was unable to urinate, allegedly due to his knowledge that he was being observed. After returning to the rail yard, Ledet requested a copy of the regulations. He then informed the trainmaster that according to the regulations, he (Ledet) was not to be observed. The trainmaster retorted, warning Ledet that he would be suspended for nine months if he refused to take the test. The following day, Ledet was taken to the clinic where he eventually gave a urine sample while being observed.
Finally, on April 24, Southern Pacific selected a third crew for testing. This time the men were taken to the Ochsner Medical Center for testing. No one observed the men while they were urinating. Rather, plaintiffs Charles V. Abate, Lipps, and Francis K. Bourg*fn7 allege other mishandling. The nurse took the men to a small room with a curtain serving as the fourth wall. The rooms were not equipped with a toilet or sink. According to Lipps, when he entered the room he requested a larger container in which to complete his void and the nurse refused. Lipps maintains that he soiled himself as a result of being unable to stop urinating once the small collection vessel was filled. Abate complains that the nurse stood within earshot of his stall while he was attempting to urinate.
In response to this alleged mistreatment, the plaintiffs filed the instant suit. They requested damages and a preliminary injunction prohibiting further testing. The district court denied the injunction and this Court affirmed.*fn8 The district court then considered the parties' motions for summary judgment.*fn9 The court granted summary judgment in favor of Southern Pacific and dismissed the plaintiffs' claims with prejudice. The court based its decision on its finding that the alleged misconduct did not rise to a constitutional level. Although the court based its holding on this finding, it went on to state that under Bivens, the railroad could not be held liable under a respondeat superior theory. The court also noted that the plaintiffs' claims sounded in negligence and that negligent conduct did not give rise to a Bivens claim. The court also dismissed the plaintiffs' state law claims on the grounds that the Federal Employers' Liability Act ("FELA") preempted them. Finally, the court denied the plaintiffs' request for leave to add FELA claims.
The plaintiffs appeal all parts of this decision except for the court's denial of their request to add FELA claims. Without reaching the portions of the court's decision regarding the constitutionality of the testing, we affirm its grant of summary judgment in favor of Southern Pacific.*fn10
Bivens affords the victim of unconstitutional conduct by a federal actor or agent a direct remedy under the Constitution. To recover damages under Bivens, the injured party must show the existence of a valid constitutional violation.*fn11 Further, as the district court noted, respondeat superior liability is not available in a Bivens action. In Dean v. Gladney,*fn12 the plaintiffs sued the city for the allegedly unconstitutional conduct of several of its police officers. The Court held that it could not impose liability on a county or city based on a theory of respondeat superior under ...