                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-22-2000

Hedges v. Musco, et al.
Precedential or Non-Precedential:

Docket 99-5111




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http://digitalcommons.law.villanova.edu/thirdcircuit_2000/32


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Filed February 22, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-5111

DANA HEDGES; GEORGE HEDGES,
on behalf of C.D. Minor,
Appellants

v.

RALPH MUSCO, Individually and as Principal of Northern
Highlands Regional High School; GREG MCDONALD;
CATHY KIELY; NORTHERN HIGHLANDS REGIONAL HIGH
SCHOOL BOARD OF EDUCATION; ALAN GEISENHEIMER,
individually and as President and a member of the
Northern Highlands Regional High School Board of
Education; WILLIAM BEISSWANGER, individually and as
President and a member of the Northern Highlands
Regional High School Board of Education; MARY
LAURENT; BARCLAY BLAYMAN; HAROLD DE NIEAR;
LYNNETTE KRUEGER; PATRICIA DUBIE; LINDA KEMPEY;
NORA OLIVER; TINA MALIZIA; NEAL STROHMEYER,
individually and as members of the Northern Highlands
Regional High School Board of Education; URGENT
CARE-WALDWICK; HEALTH NET MEDICAL GROUP;
BARBARA NEWMAN

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 96-cv-05135)
District Judge: Honorable Joseph A. Greenaway, Jr.

Argued November 17, 1999

BEFORE: ALITO and STAPLETON, Circuit Judges,
and FEIKENS,* District Judge
_________________________________________________________________

* Hon. John Feikens, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.




(Opinion Filed: February 22, 2000)

       Steven M. Latimer (Argued)
       Loughlin & Latimer
       131 Main Street, Suite 235
       Hackensack, NJ 07601
        Attorney for Appellants
       Robert T. Morgenstern (Argued)
       Dolan & Dolan
       53 Spring Street & One Legal Lane
       P.O. Box D
       Newton, NJ 07860
        Attorney for Appellees
       Musco, McDonald, Kiely, Northern
       Highlands Regional High School
       Board of Education and all named
       members thereof

       Douglas J. Sherman (Argued)
       Louis A. Ruprecht
       Ruprecht & Hart
       306 Main Street
       Millburn, NJ 07041
        Attorneys for Appellees
       Healthnet Medical Group and
       Barbara Newman

       Ronald K. Chen
       Rutgers Constitutional Litigation
        Clinic
       15 Washington Street
       Newark, NJ 07102
        Attorney for Amicus Curiae
       American Civil Liberties Union of
       New Jersey

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Parents of a high school student commenced this action
against a teacher, school officials, and members of the

                               2


school board ("the NHRHS defendants"), alleging that, by
requiring her to submit to a blood test and urinalysis, their
child was subjected to an unconstitutional search and that,
by disclosing the results of those tests, the defendants
violated the child's right to privacy. In addition, plaintiffs
argue that the school's drug policy is unconstitutionally
vague and assert a state-law claim for assault and battery
against the health care provider and nurse ("the medical
defendants") who administered the blood test. The District
Court granted the defendants' motion for summary
judgment and denied plaintiffs' cross-motion for summary
judgment. Accordingly, in our review, we view all of the
evidence, and draw all inferences therefrom, in the light
most favorable to the plaintiffs. See Wicker v. Consolidated
Rail Corp., 142 F.3d 690, 696 (3d Cir. 1998). We will affirm.

I.

At approximately 9:18 a.m. on April 8, 1996, Tara Hedges
was entering her third-period class, Defendant Greg
McDonald's math class, at Northern Highlands Regional
High School ("NHRHS"). As she entered the classroom,
McDonald observed that she seemed uncharacteristically
talkative and outgoing. In addition, her face wasflushed;
her eyes were glassy and red; and her pupils were dilated.
It is likewise undisputed, however, that Tara's speech was
not slurred, McDonald did not smell anything on her
breath, and she did not smell of marijuana.

During the math class, Tara asked permission to leave
the room to get a drink from the water fountain, which is
located within view of McDonald's classroom door. Instead
of getting a drink of water, however, Tara went in the
opposite direction from the water fountain and disappeared
around the corner of the hallway. Tara was gone for
approximately ten minutes.1 McDonald testified that it was
not consistent with Tara's normal behavior to ask
permission to go someplace and then leave the room to go
_________________________________________________________________

1. Tara actually went to the lavatory and was seen there by school
security officer, Ms. Justine Rucki, who testified that Tara's eyes were
red and she looked sick. Ms. Rucki suggested that Tara go see the school
nurse, but Tara refused.

                                3


elsewhere. Based on Tara's appearance and
uncharacteristic behavior, McDonald suspected that Tara
was under the influence of alcohol or some other drug.

The NHRHS Board of Education's Revised Drug, Alcohol
and Tobacco Policy ("NHRHS Policy" or "Policy") provides
that:

       Any staff member to whom it appears that a pupil may
       be under the influence of alcoholic beverages or other
       drugs on school property or at a school function shall
       report the matter as soon as possible to the Principal
       or his/her designee. The substance abuse counselor
       and nurse shall be notified by the Principal/designee.

App. 26. In accordance with this Policy, McDonald
contacted a school administrator and reported his
suspicion that Tara was "high."

Whenever a school official suspects that a student is
under the influence of drugs or alcohol, school policy
dictates that the student "shall be escorted to the school
nurse for an examination of any dangerous vital signs." Id.
Pursuant to that Policy, at the end of the class period, a
school security guard escorted Tara from Mr. McDonald's
classroom to the nurse's office. The school nurse,
Defendant Cathy Kiely, testified that her first impression of
Tara when she saw her that day was "oh, my God, she
looked so high. . . . She just looked totally out of it. She
just didn't know where she was. Her eyes were red, they
were glassy, she looked stuporous, she looked high .. . .
[She had a] [b]lank look, staring into space, looking right
through me, just out of it." App. 180-81 (Kiely Deposition).
Nurse Kiely informed Tara that she was suspected of being
under the influence of drugs or alcohol and that her vital
signs would have to be checked. Nurse Kiely checked Tara's
vital signs and found that her blood pressure was elevated
but her pulse and respirations were normal. Although
Tara's eyes were bloodshot, her pupils were normal. At no
point during the examination did Tara offer an explanation
for her uncharacteristic appearance.

"For students suspected of being under the influence of
alcohol/drugs," the NHRHS Policy provides that,"if there is
reasonable suspicion, the Principal/designee may conduct

                               4


a search, including lockers and bookbags, luggage, etc. . . ."
App. 28. In accordance with the Policy, a school security
guard searched Tara's locker but found nothing
incriminating. The guard also searched Tara's bookbag in
Tara's and Nurse Kiely's presence. The search revealed an
old, worn, plastic bottle containing some small white pills
and a large brown pill. Tara told Nurse Kiely that they were
diet pills. NHRHS students are prohibited from possessing
medication of any kind, including prescription and over-
the-counter medications.

Finally, the NHRHS Policy directs that, when a student is
suspected of being under the influence of drugs or alcohol,
"[t]he Principal/designee shall immediately notify a parent
or guardian and the Superintendent and arrange for an
immediate medical examination of the student." App. 26.
When Nurse Kiely asked Tara for a phone number where
her parents could be reached, however, Tara was unable to
remember the relevant numbers. After retrieving the phone
numbers, and in accordance with the NHRHS Policy, Nurse
Kiely called Tara's father, Plaintiff George Hedges, and
asked him to come to her office. When Mr. Hedges arrived,
Nurse Kiely informed him that Tara was suspected of being
under the influence of drugs or alcohol. The school
principal, Defendant Ralph Musco, showed Mr. Hedges the
pills that were found in Tara's bookbag. When it was
suggested that the pills might be diet pills, Mr. Hedges
responded: "I know for a fact that she's not on a diet." App.
201, 242. Mr. Hedges took the pills, stating that he would
find out what they were.2

Either Nurse Kiely or Mr. Musco told Mr. Hedges that
Tara would have to be tested for drug and alcohol use
before she would be permitted to return to school. The
NHRHS Policy provides that "[t]he examination may be
performed by a physician selected by the parent or
guardian, or by the school doctor if s/he is immediately
available. . . . If, at the request of the parent or guardian,
_________________________________________________________________

2. Mr. Hedges did not have the pills tested, however. He claims that he
showed the pills to a pharmacist who opined that they could be diet pills
and vitamins. For purposes of this motion, the NHRHS Defendants
concede that the pills were diet pills and vitamins.

                                5


the medical examination is conducted by a physician other
than the school doctor, such an examination shall be at the
expense of the parent and not the school district." App. 26.
Either Mr. Musco or Nurse Kiely told Mr. Hedges that the
school generally used Urgent Care,3 and Mr. Hedges took
Tara there.

Shortly after Mr. Hedges and Tara arrived at Urgent Care,
an Urgent Care doctor, Dr. Foley, who has not been named
as a defendant, examined Tara. Based on the physical
examination, Dr. Foley concluded that Tara did "not appear
to be under the influence of any illicit substance or alcohol"
and there was "no evidence of any chronic use of illicit
substances or alcohol." App. 96 (medical report). Tara then
provided Urgent Care with a urine specimen.

Nurse Barbara Neumann attempted to draw blood from
Tara's right arm but was unsuccessful. She then attempted
to draw blood from Tara's left arm but was also
unsuccessful. The parties dispute what happened next.
According to Ms. Neumann, after the two unsuccessful
attempts, she left the room and summoned Dr. Foley. Tara
testified, however, that Ms. Neumann inserted a needle in
her arms five times unsuccessfully before asking for Dr.
Foley's help. Tara also testified that, when Ms. Neumann
left the room to get Dr. Foley, she left the tourniquet on
Tara's arm. Ms. Neumann denies doing so. Dr. Foley was
able to draw blood from Tara's arm on his first attempt.
Plaintiffs allege that Tara suffered hematoma in both arms
as a result of Ms. Neumann's actions.
Later that day, Mr. Hedges contacted his attorney,
Warren Clark. The next day, April 9, 1996, the Hedges and
Mr. Clark met with Principal Musco at 7:20 a.m. Nurse
Kiely called Urgent Care at approximately 7:30 a.m. that
same morning for the results of Tara's drug and alcohol
tests. The test results were negative for drugs and alcohol,
and NHRHS readmitted Tara in time for her second period
class on April 9th.

When Tara returned to school that day, a student
_________________________________________________________________

3. Urgent Care is now known as "Health Net Medical Group of New
Jersey."

                               6


approached her and told her that he had overheard Nurse
Kiely on the phone when she was obtaining Tara's results.
The student told Tara that he heard Nurse Kiely say,
"Negative? Are you sure? You are kidding. I am shocked."
App. 406 (Tara Hedges Deposition). By the end of the
school day, many students knew that Tara had been tested
for drugs and alcohol. Thirty to forty students asked Tara
what had happened and asked to see the bruises on her
arms; they asked if she had been caught using drugs. Tara
perceived that the students believed that she had actually
done something wrong. Tara further testified that she has
lost friends as a result of the incident and also has lost a
number of babysitting jobs.

The plaintiffs filed this civil rights action under 42 U.S.C.
S 1983. They allege that the NHRHS Defendants subjected
their daughter to an intrusive search, including the testing
of bodily fluids, without reasonable suspicion, in violation
of the Fourth and Fourteenth Amendments' protection
against unreasonable searches and seizures and in
violation of the New Jersey Constitution. Plaintiffs further
allege that defendants disclosed the results of the search to
NHRHS students in violation of their daughter's right to
privacy under the Ninth and Fourteenth Amendments.
Plaintiffs' third claim is that the NHRHS drug testing policy
is unconstitutionally vague. Finally, plaintiffs assert a
pendent state-law claim for assault and battery against the
medical defendants.

The defendants moved for summary judgment on all
counts, and the plaintiffs made a cross-motion for
summary judgment with respect to their claims that the
search violated both the United States and New Jersey
Constitutions. The District Court granted the defendants'
motion for summary judgment and denied the plaintiffs'
cross-motion for summary judgment. See Hedges v. Musco,
33 F. Supp.2d 369 (D.N.J. 1999). This appeal followed.4
_________________________________________________________________

4. Plaintiffs have not appealed the District Court's decision to grant
defendants' motion for summary judgment on Counts V and VI of the
Complaint, which alleged that the NHRHS school board and its
individual members "were deliberately indifferent to the rights of
plaintiff
in that they failed to adequately train, supervise, and control faculty
and

staff of NHRHS in the procedures to be followed if a student is suspected
of substance abuse." App. 10. Accordingly, we will not review those
claims.

                               7


II.

The District Court had jurisdiction pursuant to 28 U.S.C.
SS 1331 and 1343(a)(3). This Court has appellate
jurisdiction over the District Court's final order. See id.
S 1291. We exercise plenary review over the District Court's
decision to grant summary judgment. See Wicker v. Consol.
Rail Corp., 142 F.3d 690, 696 (3d Cir. 1998). Summary
judgment is appropriate only if there is no genuine issue of
material fact, and the moving party is entitled to a
judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).

III.

The New Jersey legislature has promulgated a statutory
scheme designed to combat the problems of drug and
alcohol abuse in New Jersey schools. See N.J.S.A.
S 18A:40A-8 et seq.5 As a part of that scheme, the following
provision was enacted:
_________________________________________________________________

5. The statute provides in relevant part:

       Whenever it shall appear to any teaching staff member, school nurse
       or other educational personnel of any public school in this State
       that a pupil may be under the influence of substances as defined
       pursuant to section 2 of this act, other than anabolic steroids,
that
       teaching staff member, school nurse or other educational personnel
       shall report the matter as soon as possible to the school nurse or
       medical inspector, as the case may be, or to a substance awareness
       coordinator, and to the principal or, in his absence, to his
designee.
       The principal or his designee, shall immediately notify the parent
or
       guardian and the superintendent of schools, if there be one, or the
       administrative principal and shall arrange for an immediate
       examination of the pupil by a doctor selected by the parent or
       guardian, or if that doctor is not immediately available, by the
       medical inspector, if he is available. . . . The pupil shall be
examined
       as soon as possible for the purpose of diagnosing whether or not
the

       pupil is under such influence. A written report of that examination
       shall be furnished within 24 hours by the examining physician to
       the parent or guardian of the pupil and to the superintendent of
       schools or administrative principal.

N.J.S.A. 18A:40A-12. The regulations enacted pursuant to that title
require that the "[d]istrict board of education . . . adopt and implement
policies and procedures for the evaluation . . . of pupils . . . who on
reasonable grounds are suspected of being under the influence." N.J.A.C.
S 6:29-6.3. The NHRHS Policy is an effort to comply with this mandate.

                                8


       No action of any kind in any court of competent
       jurisdiction shall lie against any teaching staff member,
       including a substance awareness coordinator, any
       school nurse or other educational personnel, medical
       inspector, examining physician or any other officer,
       agent or any employee of the board of education or
       personnel of the emergency room of a hospital because
       of any action taken by virtue of the provisions of this
       act, provided the skill and care given is that ordinarily
       required and exercised by other teaching staff
       members, nurses, educational personnel, medical
       inspectors, physicians or other officers, agents, or any
       employees of the board of education or emergency
       room personnel.

N.J.S.A. S 18A:40A-13. The District Court, relying on that
provision, held that Mr. McDonald, Nurse Kiely, and Mr.
Musco, as school officials within the meaning of the statute,
were immune from the plaintiffs' suit.

In Good v. Dauphin Co. Social Serv. for Children and
Youth, 891 F.2d 1087, 1091 (3d Cir. 1989), however, we
held that "state law cannot immunize government
employees from liability resulting from their violation of
federal law." We explained:

       [A state] immunity statute, although effective against a
       state tort claim, has no force when applied to suits
       under the Civil Rights Acts. The supremacy clause of
       the Constitution prevents a state from immunizing
       entities or individuals alleged to have violated federal
       law. This result follows whether the suit to redress
       federal rights is brought in state or federal court. Were
       the rule otherwise, a state legislature would be able to
       frustrate the objectives of a federal statute.

Id. (quoting Wade v. City of Pittsburgh , 765 F.2d 405, 407-
408 (3d Cir. 1985) (citations omitted)).

The District Court, therefore, erred in holding that the
school officials were immunized from plaintiffs' federal
claims by the New Jersey statute.6 Because we may affirm
_________________________________________________________________

6. The District Court did not address whether the state statute provides
immunity to the defendants from plaintiffs' state constitutional claims

                               9


a district court's grant of summary judgment on any
ground that appears in the record, however, we will proceed
to consider the merits of plaintiffs' case.

IV.

The NHRHS defendants assert qualified immunity as an
alternative ground for affirming the District Court. As the
Supreme Court has recognized, however, "even afinding of
qualified immunity requires some determination about the
state of constitutional law at the time the officer[s] acted."
County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5
(1998). Because "[a]n immunity determination, with nothing
more, provides no clear standard, constitutional or
nonconstitutional," id., and because we ultimately conclude
that plaintiffs have failed to demonstrate a violation of the
Fourth Amendment, we will address plaintiffs' Fourth
Amendment claim on the merits. See Medeiros v. O'Connell,
150 F.3d 164, 169 (2d Cir. 1998) (recognizing that"the
Supreme Court expressed its preference that courts
address first the merits of the constitutional claims
presented before turning to an analysis of qualified
immunity" and affirming on the merits).

In T.L.O. v. New Jersey, the Supreme Court recognized
that "[i]t is now beyond dispute that `the Federal
Constitution, by virtue of the Fourteenth Amendment,
prohibits unreasonable searches and seizures by state
officers.' Equally indisputable is the proposition that the
Fourteenth Amendment protects the rights of students
against encroachment by public school officials." 469 U.S.
325, 334 (1985) (quoting Elkins v. United States , 364 U.S.
206, 213 (1960)). Nevertheless, the Court decided that the
probable cause standard, applicable to most warrantless
searches, was not appropriate in a school setting. See id. at
341. Rather, the Court explained:
       [T]he legality of a search of a student should depend
       simply on the reasonableness, under all the
_________________________________________________________________

brought under Article I, paragraph 7 of the New Jersey Constitution. We
need not decide the issue, however, because as we will explain, we
ultimately conclude that the NHRHS defendants are entitled to summary
judgment on the merits of the state claim. See infra note 12.

                                10


       circumstances, of the search. Determining the
       reasonableness of the search involves a twofold inquiry:
       first, one must consider "whether the . . . action was
       justified at its inception," Terry v. Ohio , 392 U.S. [1,] 20
       [(1968)]; second, one must determine whether the
       search as actually conducted "was reasonably related
       in scope to the circumstances which justified the
       interference in the first place," ibid. Under ordinary
       circumstances, a search of a student by a teacher will
       be "justified at its inception" when there are reasonable
       grounds for suspecting that the search will turn up
       evidence that the student has violated or is violated
       either the law or the rules of the school. Such a search
       will be permissible in its scope when the measures
       adopted are reasonably related to the objectives of the
       search and not excessively intrusive in light of the age
       and sex of the student and the nature of the infraction.

Id. at 341-42 (footnotes omitted).

The Supreme Court has recently said that "[a]rticulating
precisely what `reasonable suspicion' . . . mean[s] is not
possible." Ornelas v. United States, 517 U.S. 690, 695
(1996). It is a "commonsense, nontechnical conception[ ]
that deal[s] with the factual and practical considerations of
everyday life on which reasonable and prudent men, not
legal technicians, act." Id. (internal quotation omitted); see
also Karnes v. Skrutski, 62 F.3d 485, 495 (3d Cir. 1995)
("The test for reasonable suspicion is a totality of the
circumstances inquiry.").

Applying those legal principles to the facts of this case,
we hold that defendants McDonald, Kiely, and Musco's
suspicion that Tara was "high" was reasonable. In addition,
we believe that the searches were reasonable in scope and
not excessively intrusive.

A. Mr. McDonald, Nurse Kiely and the School Search

As we have explained, when Tara entered Mr. McDonald's
class on the morning of April 8, 1996, she was behaving in
an uncharacteristically gregarious manner. In addition, her
face was flushed; her eyes were glassy and red; and her
pupils were dilated. Then during class, Tara, after obtaining
permission to leave the room to get a drink of water,

                               11


proceeded in the opposite direction, disappeared around the
corner of the hallway, and did not return for approximately
ten minutes. All of this was inconsistent with Tara's normal
behavior and appearance. In our view, these facts gave Mr.
McDonald a sufficiently "particularized and objective basis"
for suggesting that Tara be examined by the school nurse.
United States v. Cortez, 449 U.S. 411, 417-418 (1981).
While, as plaintiffs point out, Tara's speech was not
slurred, McDonald did not smell anything on her breath,
and she did not smell of marijuana, those facts do not
undermine the reasonableness of McDonald's suspicion.
Tara may not have possessed every characteristic that may
be exhibited by a person who has consumed alcohol or
other drugs, but the symptoms she did manifest created a
reasonable suspicion that she had consumed some quantity
of alcohol or other drugs. McDonald had reasonable
grounds for suspecting that a further and more
comprehensive evaluation of Tara might produce evidence
of such consumption.

It bears noting that McDonald did not immediately order
Tara to submit to a blood test and urinalysis. Rather,
pursuant to school policy, he had her escorted to Nurse
Kiely's office for further examination. Because Nurse Kiely's
examination only involved observing Tara and checking her
vital signs, we hold that the scope of the search at this
point was reasonably related to its objectives and not
excessively intrusive given the age and sex of the student
and the nature of the infraction. Because requiring Tara to
submit to Nurse Kiely's examination represents the full
extent of McDonald's participation in the relevant events,
McDonald's conduct did not amount to a Fourth
Amendment violation.

Before Nurse Kiely conducted her "vital signs"
examination, her own observations in her office led her to
conclude that Tara's behavior and appearance were
abnormal and consistent with her having consumed alcohol
or another drug. Given those observations and McDonald's
report, Nurse Kiely's ensuing, limited examination did not,
in our view, constitute an unreasonable search. 7
_________________________________________________________________

7. We do not understand Nurse Kiely to have participated in the
subsequent decision to require a blood test and urinalysis. If she bears
any responsibility for that decision, she has noS 1983 liability to the
plaintiffs for the same reason, as explained hereafter, that Principal
Musco has no such liability.

                               12


A recent decision by the Seventh Circuit Court of Appeals
supports our analysis. The case, Bridgman v. New Trier
High School Dist. No. 203, 128 F.3d 1146 (7th Cir. 1997),
involved facts similar to those at issue here. The Court
summarized the facts in that case as follows:

       Dailey noticed that Bridgman and several other
       students were giggling and acting in an unruly fashion.
       Bridgman acknowledges that he was laughing with the
       other students, but denies being unruly. Dailey states
       that while the other students quickly calmed down,
       Bridgman remained distracted and behaved
       inappropriately during the program. Dailey says she
       noticed that Bridgman's eyes were bloodshot and his
       pupils dilated. She also claims that his handwriting
       was erratic on a worksheet that he completed as part
       of the program, and that some of his answers were
       "flippant."

       * * *

       After Bridgman had spoken to his mother, Dailey took
       him into another adjoining room, where she had the
       school's Health Services Coordinator, Nurse Joanne
       Swanson, administer a "medical assessment" of
       Bridgman. The assessment consisted of taking
       Bridgman's blood pressure and pulse. Swanson noted
       that both of these readings were considerably higher
       than those listed on the record of Bridgman's freshman
       physical examination. Swanson was concerned about
       the high blood pressure and pulse measurements, but
       at no time reached the conclusion that Bridgman was
       under the influence of drugs. She also noted that
       Bridgman's pupils were dilated, but did not notice that
       his eyes were bloodshot, or that he was acting
       strangely in any way.

Id. at 1147, 1148. The following day, at his mother's
instruction, the student underwent a drug test, which
indicated that he had not in fact been using marijuana. The
student then brought suit under S 1983, alleging that the
medical assessment and a subsequent search of his outer
clothing were unreasonable and, thus, violated his Fourth
Amendment rights.

                               13
The Court rejected his claim, holding that "[t]he
symptoms were sufficient to ground Daily's suspicion, and
the medical assessment was reasonably calculated to
uncover further evidence of the suspected drug use." Id. at
1149. The analysis conducted by the Seventh Circuit Court
of Appeals suggests that, where a teacher's suspicion is
based on objective facts that suggest that a student may be
under the influence of drugs or alcohol, an examination of
the kind here performed by Nurse Kiely will be permissible.8

B. Principal Musco and the Urgent Care Search

In T.L.O., the Supreme Court, after concluding that it was
reasonable for a teacher to search a student's purse for
cigarettes after being informed that the student was
smoking in the lavatory, further held that additional
information secured in the course of the search warranted
more intrusive, follow-up searches. See 469 U.S. at 347.
TLO thus "justifies escalating searches . .. if the discovery
of new evidence warrants them." Recent case, 111 HARV. L.
REV. 1341, 1345-46 (1997).

Here, too, the information learned as the investigation
progressed provided additional justification for the decision
to require a blood test and urinalysis. After Tara arrived at
Nurse Kiely's office and before she went to the Urgent Care
for the blood test and urinalysis, Principal Musco learned
that her blood pressure was above normal, and that she
was unable to remember her parents' day-time phone
numbers. In addition, at some point during this process,
Tara's book bag was searched.9 An old pill bottle,
_________________________________________________________________

8. Plaintiffs assert that their case is more like another case from the
Seventh Circuit Court of Appeals, Willis v. Anderson Community School
Corp., 158 F.3d 415 (7th Cir. 1998). We disagree. In Willis, a student
was suspended for fighting with a fellow student and, based solely on
the fact that he had been in a fight, the school required him to be tested
for drug and alcohol use before being allowed to return to school. Even
though the school submitted evidence tending to show that students
who fight are more likely to use drugs than other students, the Court
held that a single fight did not create a reasonable suspicion. See id. at
418-19. The Court expressly distinguished Bridgman on the ground that
the student there exhibited multiple signs of drug use. See id. at 419-20.
We find the present case similarly distinguishable.

9. Plaintiffs do not challenge the constitutionality of this search.

                               14


containing two different types of unidentified pills, was
discovered there. As Tara had not registered any
medications with the Nurse, her possession of those pills --
whether they were illegal drugs or not -- was a violation of
school policy. Tara's explanation for the pills was that they
were diet pills, but her father informed Principal Musco
that he was confident Tara was not on a diet.

Based on the combination of Mr. McDonald's
observations (which were confirmed, except for the dilated
pupils, by the Nurse) and this newly gathered evidence, it
simply cannot be said that Principal Musco lacked
reasonable grounds for concluding that a further search
would produce additional evidence of drug consumption.10

Accordingly, we turn to the issue of whether the search
ordered by Principal Musco was reasonably related to its
objectives and not excessively intrusive given the age and
sex of the student and the nature of the infraction.
Certainly a drug test is reasonably related to the objective
of determining whether a student is under the influence;
the issue then is whether a urinalysis and blood test were
excessively intrusive given the nature of the suspected
infraction.

The Supreme Court has recognized that "collecting
samples for urinalysis intrudes upon `an excretory function
traditionally shielded by great privacy.' " Vernonia School
Dist. 47J v. Acton, 515 U.S. 646, 658 (1995) (quoting
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602,
626 (1989)). The Court cautioned, however, that"the degree
_________________________________________________________________

10. In contrast, in Sostarecz v. Misko, No. CIV. A. 97-CV-2112, 1999 WL
239401 (E.D. Pa. Mar. 26, 1999), the district court held that an
additional search was not warranted. In that case, a student was
suspected of using drugs solely by virtue of the fact that she exhibited
inappropriate behavior in class. The student was sent to the nurse's
office, but the nurse's test produced only normal results. Nevertheless,
the school official proceeded to strip search the student in an effort to
find further evidence of drug use. The district court held that, "once
[the

nurse's] test produced normal results, the Court does not believe that a
reasonable person would then force the student to remove her pants so
that her legs could be checked for signs of drug use." Id. at *6. This
case

is materially different.

                                15


of intrusion depends upon the manner in which production
of the urine sample is monitored." Id. In Vernonia,11 the
Supreme Court observed:
       Under the District's Policy, male students produce
       samples at a urinal along a wall. They remain fully
       clothed and are only observed from behind, if at all.
       Female students produce samples in an enclosed stall,
       with a female monitor standing outside listening only
       for sounds of tampering. These conditions are nearly
       identical to those typically encountered in public
       restrooms, which men, women, and especially school
       children use daily. Under such conditions, privacy
       interests compromised by the process of obtaining
       urine samples are in our view negligible.

Id.

In this case, Tara's urinalysis was performed at a private
medical clinic. Nurse Neumann described the urinalysis
procedure as follows:

       The patient would be sent to the lavatory, where the
       water has previously been turned off. . . . The patient
       takes the large container and goes into the restroom
       and fills it up. . . . They bring it back into the room.
       . . . I check the temperature on it, then they pour it
       into the containers. . . . The patient goes into the
       bathroom with the cup by themselves. We don't go in
       with him -- with them.

App. 432-34. Based on Vernonia, we hold that the
urinalysis performed on Tara Hedges was not excessively
intrusive given the age and sex of the student and the
nature of the infraction.

In addition to the urinalysis, Principal Musco ordered
that a blood-alcohol test be performed. Plaintiffs assert that
"either a saliva strip or the breathalyser are more effective
tools to determine alcohol use . . . and are less intrusive
than a blood test." Brief for Appellant at 44. Plaintiffs
misconceive T.L.O.'s standard, however. T.L.O. did not hold
_________________________________________________________________

11. In Vernonia, the Supreme Court upheld the constitutionality of
suspicionless drug testing of student athletes.

                                16


that the search must be the least intrusive way of achieving
its objectives; it held that the search must not be
excessively intrusive. See T.L.O., 469 U.S. at 342.
Therefore, the mere fact that there are less intrusive means
of ascertaining whether a student has consumed alcohol,
though perhaps probative, is not dispositive of the
reasonableness of the search.
The Supreme Court has upheld the use of blood-alcohol
tests in a multitude of cases. In Schmerber v. California, the
Court explained:

       Extraction of blood samples for testing is a highly
       effective means of determining the degree to which a
       person is under the influence of alcohol. . . . Such tests
       are a [sic] commonplace in these days of periodic
       physical examination and experience with them
       teaches that the quantity of blood extracted is minimal,
       and that for most people the procedure involves
       virtually no risk, trauma, or pain.

384 U.S. 757, 771 (1966) (citation and footnote omitted);
see also Skinner v. Railway Labor Executives' Assn. , 489
U.S. 602, 625 (1989) ("the intrusion occasioned by a blood
test is not significant"); Winston v. Lee , 470 U.S. 753, 762
(1985) ("society's judgment [is] that blood tests do not
constitute an unduly extensive imposition on an
individual's privacy and bodily integrity"); South Dakota v.
Neville, 459 U.S. 553, 563 (1983) ("The simple blood-alcohol
test is . . . safe, painless, and commonplace"); Breithaupt v.
Abram, 352 U.S. 432, 436 (1957) ("The blood test procedure
has become routine in our everyday life"). Based on these
Supreme Court precedents, we hold that requiring Tara to
submit to a blood-alcohol test, administered by
professionals in a medical testing clinic, was reasonable,
taking into account her age, sex, and the nature of the
suspected infraction.

In summary, we conclude that the searches of Tara
Hedges were reasonable under all the circumstances. 12 See
_________________________________________________________________

12. Having established that there was no federal constitutional violation,
defendants must also prevail on plaintiffs' claims under Article I,
paragraph 7 of the New Jersey Constitution. See Desilets v. Clearview

                                17


T.L.O., 469 U.S. at 341. Each was justified at its inception
and reasonably related in scope to the circumstances which
justified the interference in the first place. 13 See id. at 341-
42. Summary judgment in favor of the NHRHS defendants
on the unreasonable search claims was therefore
appropriate.

V.

Plaintiffs' second claim is that the NHRHS defendants
violated Tara's right to privacy under the Ninth and
Fourteenth Amendments by disclosing the results of the
drug tests. It is well established that the constitutional
right to privacy protects two types of privacy interests: "One
is the individual interest in avoiding disclosure of personal
matters, and another is the interest in independence in
making certain kinds of important decisions." Whalen v.
Roe, 429 U.S. 589, 599-600 (1977) (footnotes omitted).
Plaintiffs' asserted privacy interest falls within the first
class. The District Court rejected this claim, holding that
the results of the drug tests were not medical records and,
thus, were not entitled to privacy protection. See Hedges v.
Musco, 33 F. Supp.2d 369, 381 (D.N.J. 1999). Wefind it
unnecessary to reach the question of whether the results of
the drug tests were entitled to constitutional privacy
protection, because we perceive no nexus between the
injury plaintiffs allege that Tara suffered and Nurse Kiely's
inadvertent revelation of the results of Tara's drug tests.

It is axiomatic that "[a] S 1983 action, like its state tort
analogs, employs the principle of proximate causation."
_________________________________________________________________

Regional Bd. of Educ., 627 A.2d 667, 673 (N.J. Super. App. Div. 1993)
("We are not persuaded that the New Jersey Constitution provides
greater protection under the circumstances of this case than its federal
counterpart. We note that in its T.L.O. opinion the New Jersey Supreme
Court analyzed the search and seizure issue under the Fourth
Amendment to the United States Constitution, and did not suggest that
New Jersey's organic law imposed more stringent standards.").

13. Because we conclude that the search was reasonable, we need not
reach the NHRHS defendants' argument that plaintiffs consented to the
search.

                               18


Townes v. City of New York, 176 F.3d 138, 146 (2d Cir.
1999) (citations omitted); see also Gierlinger v. Gleason, 160
F.3d 858, 872 (2d Cir. 1998) ("as in all S 1983 cases, the
plaintiff must prove that the defendant's action was a
proximate cause of the plaintiff 's injury"); Kneipp v. Tedder,
95 F.3d 1199, 1213 (3d Cir. 1996) (in a S 1983 suit, "[a]
plaintiff must . . . establish that the government policy or
custom was the proximate cause of the injuries sustained").
"To establish the necessary causation, a plaintiff must
demonstrate a `plausible nexus' or `affirmative link' between
the [defendant's action] and the specific deprivation of
constitutional rights at issue." Bielevicz v. Dubinon, 915
F.2d 845, 850 (3d Cir. 1990) (citation omitted).

In this case, plaintiffs allege that Tara was injured by the
NHRHS defendants' disclosure of the results of her drug
tests. Specifically, Tara testified that she perceived that
students suspected that she had done something wrong.
She further testified that she has lost friends as a result of
the incident and also has lost a number of babysitting jobs.
Contrary to plaintiffs' suggestions, however, it seems clear
that Nurse Kiely's revelation of the results of the drug tests
was not the proximate cause of the damages Tara claims to
have suffered. Rather, given that those results were
negative, it seems evident that any damages plaintiffs
suffered were caused by students' knowledge of the fact
that Tara was drug tested, not Nurse Kiely's disclosure of
the tests' results. Accord Townes, 176 F.3d at 148
(dismissing claims and noting that "there is a gross
disconnect between the constitutional violations[alleged]
. . . and the injury or harm for which [plaintiff] seeks
recovery . . ."). Indeed, to the extent disclosure of the
negative results had any effect on the plaintiffs, it was to
mitigate the damages caused by the fact that Tara was drug
tested. Because we "conclude that no reasonable jury could
find [Nurse Kiley's disclosure of the results of the drug
tests] to be the cause of [plaintiffs'] injury," we hold that the
District Court properly entered summary judgment against
the plaintiffs on their privacy claim.14 Taylor v. Brentwood
_________________________________________________________________

14. In their briefs to this Court plaintiffs have argued only that
disclosure of the results of the drug tests violated Tara's right to
privacy.

                               19


Union Free School Dist., 143 F.3d 679, 687 (2d Cir. 1998);
see Gierlinger, 160 F.3d at 872 (to recover under S 1983,
"the plaintiff must prove that the defendant's action was a
proximate cause of the plaintiff 's injury").

VI.

Plaintiffs' third claim is that the NHRHS drug testing
policy is unconstitutionally vague. The District Court
dismissed this claim because the plaintiffs failed to plead it
in their complaint. See 33 F. Supp.2d at 383. Plaintiffs
concede that the issue is not raised in their complaint and
that they have never sought leave to amend, but they
contend that, because the defendants were on notice of the
claim and even briefed the issue (apparently without raising
the procedural defense), "the better course would have been
to decide the issue on the merits." Brief for Appellant at 51;
see Johnson v. Horn, 150 F.3d 276, 284 (3d Cir. 1998)
(holding that, although the issue was not raised in the
complaint or plaintiff 's motion for summary judgment,
where district court was on notice that there was an issue
and parties addressed it on the merits, we may reach the
merits of the claim); Venuto v. Carella, Byrne, Bain, Gilfillan,
Cecchi & Stewart, P.C., 11 F.3d 385, 388 (3d Cir. 1993)
(same). Because the NHRHS defendants do not argue to us
that the issue has been waived and instead address it on
the merits, we will entertain the plaintiffs' vagueness claim.

Plaintiffs challenge the following provision of the NHRHS
school board's drug/alcohol policy: "Any staff member to
whom it appears that a pupil may be under the influence
of alcoholic beverages or other drugs on school property or
at a school function shall report the matter as soon as
_________________________________________________________________

See Brief for Appellant at 46 ("The [district] court erred as a matter of
law
when it dismissed plaintiff 's constitutional claim based on the
disclosure

by the defendants of the results of the testing . . . ."); id. at 49
(arguing
that there were no adequate safeguards to protect against disclose of the
test results). The parties have not briefed, and we express no opinion on,
whether under circumstances of this kind, a student in Tara's position
can have a reasonable expectation of privacy in the fact that she was
investigated for drug use.

                               20


possible to the Principal or his/her designee." App. 26.
Plaintiffs assert that "[t]he flaw in the NHRHS policy is that
the language `any staff member to whom it appears that a
pupil is under the influence' provides no particularized and
objective basis to guide the staff member to make an
informed decision to refer the student to drug testing." Brief
for Appellant at 53 (emphasis in original). In addition, they
argue that the policy does not require reasonable suspicion.

We reject these arguments. The passage about which
plaintiffs complain requires no more than that the teacher
report the matter to the principal or the school nurse.
Notably, the policy does not provide that the school may
search any student who appears to be "under the
influence," regardless of reasonable suspicion. Rather, the
policy expressly instructs that the nurse or principal "will
evaluate the student's condition," and that the principal or
nurse may conduct a search only if there is reasonable
suspicion. App. 28. Contrary to plaintiffs' suggestions, the
school policy does not authorize the search and medical
testing of every student who appears to a teacher to be
under the influence.

VII.

The District Court, having dismissed all of plaintiffs'
S 1983 claims and finding no extraordinary circumstances,
refused to exercise supplemental jurisdiction over the
plaintiffs' state-law claims against Ultra Care and Barbara
Neumann. See 33 F. Supp.2d at 383. Plaintiffs insist that
this was an abuse of discretion.

Though it did not cite to S 1367, it is clear from that the
District Court relied on the following provision in
dismissing plaintiffs' state law claims:

       (a) . . . [I]n any civil action of which the district courts
       have original jurisdiction, the district courts shall have
       supplemental jurisdiction over all other claims that are
       so related to claims in the action within such original
       jurisdiction that they form part of the same case or
       controversy under Article III of the United States
       Constitution. Such supplemental jurisdiction shall

                               21


       include claims that involve the joinder or intervention
       of additional parties. . . .

       (c) The district courts may decline to exercise
 840supplemental jurisdiction over a claim under

       subsection (a) if . . . (3) the district court has dismissed
       all claims over which it has original jurisdiction .. . .

28 U.S.C. S 1367(a), (c).

We recently addressed S 1367(c)(3) in Figueroa v.
Buccaneer Hotel, Inc., 188 F.3d 172 (3d Cir. 1999). Like this
case, "[t]he District Court [there] made no reference to
section 1367 in its order dismissing Figueroa's remaining
[state] claims . . . ." Id. at 181. The Court "deduce[d] from
the language of the District Court, however, that the court
was aware that it had the discretion to exercise
supplemental jurisdiction over these claims under section
1367, but declined to do so based on the consideration set
forth in section 1367(c)(3), namely, the dismissal of all
claims over which the court had original jurisdiction." Id.
The Court held that, "where we can readily determine that
the District Court dismissed a claimant's remaining claims
based on a consideration enumerated in section 1367(c), it
is not reversible error for the court to not state its reasons
for doing so." Id. Following Figueroa , we find no reversible
error in the District Court's failure expressly to mention
S 1367(c)(3), because it is clear from the Court's opinion
that it was relying on that provision.

This Court has recognized that, "where the claim over
which the district court has original jurisdiction is
dismissed before trial, the district court must decline to
decide the pendent state claims unless considerations of
judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so." Borough of
West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)
(emphasis added). The only fairness consideration to which
plaintiffs point is that the statute of limitations on the
assault and battery claim has run.15 At first glance, this
argument is compelling. See Beck v. Prupis, 162 F.3d 1090,
_________________________________________________________________

15. The statute of limitations is two years and, thus, expired on April 7,
1998.

                                22


1100 (11th Cir. 1998) (discussing pre-section 1367 law)
("The possibility of a claim being time-barred is an
important factor in deciding whether to maintain
jurisdiction over pendent claims once the federal claims
have been resolved; dismissing state law claims for which
the statute of limitations has run will often constitute an
abuse of discretion.") (citing cases); Cooley v. Pennsylvania
Housing Finance Agency, 830 F.2d 469, 476 (3d Cir. 1987)
(same).

Congress foresaw the precise problem plaintiffs raise in
this case, however, and prescribed a cure. When it codified
the law of supplemental jurisdiction, Congress expressly
provided:

        The period of limitations for any claim asserted under
        section (a), and for any other claim in the same action
        that is voluntarily dismissed at the same time as or
        after the dismissal of the claim under subsection (a),
        shall be tolled while the claim is pending and for a
        period of 30 days after it is dismissed unless State law
        provides for a longer tolling period.

28 U.S.C. S 1367(d); see also Beck v. Prupis, 162 F.3d at
1099-1100 ("a dismissal under section 1367 tolls the
statute of limitations on the dismissed claims for 30 days");
Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998)
("Section 1367(d) ensures that the plaintiff whose
supplemental jurisdiction is dismissed has at least thirty
days after dismissal to refile in state court."). Plaintiffs'
state claims were, therefore, not time-barred at the time the
District Court dismissed them. Accordingly, we find no
abuse of discretion.

VIII.

We will affirm the judgment of the District Court.

A True Copy:
Teste:

         Clerk of the United States Court of Appeals
         for the Third Circuit

                                 23
