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June 26, 2001


The opinion of the court was delivered by: John T. Curtin, United States District Attorney


On March 3, 1998, plaintiff Robert E. Ware ("Ware"), a Buffalo firefighter, brought this action, pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment to the U.S. Constitution, Fed.R.Civ.P. 57, 28 U.S.C. § 2201, 1331, and 1343, and state law. Ware sought declaratory, monetary, and preliminary and permanent injunctive relief against defendants City of Buffalo; City of Buffalo Department of Fire ("Fire Department"); Cornelius J. Keane, individually and as Commissioner of the Buffalo Fire Department; and John D. Sixt, individually and as Deputy Commissioner, Buffalo Fire Department. Item 1. Ware alleges he suffered economic and personal damage as a result of being required to comply with the Drug Testing Policy (the "Policy") implemented by the City of Buffalo and the Fire Department. He further alleges that the Policy is arbitrary and capricious on its face, and as applied to him. Defendants answered on March 24, 1998. Item 2. On September 18, 2000, defendants moved pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 12(b)(7) for an order dismissing the complaint. Items 20, 21. Plaintiff responded with a Memorandum of Law in Opposition, Item 23, and defendants filed an Affidavit in Response. Item 25.

The court heard oral argument on January 5, 2001. In an order dated January 10, 2001, the court asked counsel to submit additional briefs on whether the union waived plaintiff's challenge to the Drug Testing Policy. Item 26. Plaintiff responded with a letter, Item 29, and defendants responded with a brief that contained as an exhibit a copy of the Collective Bargaining Agreement between the City and plaintiff's union. Item 28. For the reasons that follow, the court grants defendants' motion to dismiss.


Later that day, Ware met with Sixt, in the presence of a union representative. During the meeting, Ware denied ever using drugs and argued that the test result was a mistake. He also informed Sixt that the urine sample had been too small to divide into two parts, a fact which Sixt acknowledged. Id., ¶¶ 29, 30, 31. Despite the small sample size, which would not allow for a retest pursuant to the Policy (Article V(C)), Sixt told plaintiff that he would be treated as having been tested positive for illegal substances. Sixt placed Ware on suspension and told him to use his sick time and vacation time while on suspension. Sixt also told Ware that unless he entered and successfully completed the chemical dependency program at Beacon Center, he would be terminated as a firefighter. Id., ¶¶ 32-34.

At approximately 5 p.m. on January 5, 1998, Ware went to the Beacon Center and provided a urine sample. The next day he went to a laboratory and gave a blood sample. Both samples reported negative for illegal substances. Although Ware advised Sixt that the additional drug tests were negative, Sixt refused to excuse him from attending the Beacon Center, and told him that if he did not complete the program, he would be terminated from his job. Id., ¶¶ 36-38. As a result of his suspension, Ware missed one full tour of duty. Sixt then informed him that he could return to work. Id., ¶ 39.

The Beacon Center program requires three weekly group counseling sessions, biweekly individual counseling sessions, urine testing each day the person is on site, and joint counseling with the attendee's spouse. The person must submit to a thorough physical examination, provide complete autobiographical materials, and attend Narcotics Anonymous and Alcoholics Anonymous meetings. Id. ¶ 45. Ware was told by the Beacon Center staff that if he refused any recommendation made by the Center, he would be reported to the Fire Department as non-compliant and would be terminated from the program. Id. ¶ 46.

On January 21, 1998, Ware was unable to attend an appointment at the Beacon Center because his wife's car was stolen and he had no transportation. His absence was reported to the Fire Department, and Sixt suspended him without pay, effective January 22, 1998. Later that day, the suspension was rescinded. Id., ¶¶ 47, 48, 49. Ware, who also was a non-commissioned officer in the National Guard (id., ¶ 41), informed the Beacon Center that he could not attend the program on January 30 and February 6, 1998, since it conflicted with National Guard drill weekends. By letter dated February 9, 1998, the Beacon Center informed Ware that his absences on those two days were unexcused, and threatened to discharge him from the program. On February 12, 1998, Sixt suspended Ware without pay for noncompliance with the Policy. The suspension was subsequently revoked. Id., ¶¶ 50, 52-55.

Sixt told Ware that Ware was required to sign waivers authorizing the Fire Department to obtain all records regarding his treatment at the Beacon Center or he would be terminated. Ware signed the releases. Id., ¶ 60.

Ware contends that when he denied using drugs, he was told by the Beacon Center personnel that he was not complying with treatment and that he must admit his addictions in order to successfully complete the program. He asserted that he could not comply with the Beacon Center program unless he falsely affirmed that he had a drug problem. Ware also questioned why he had to undergo alcohol and marital counseling, which are not within the ambit of the Policy, but which the Beacon Center insisted he must undergo in order to be in compliance. Id., ¶¶ 62, 63, 65.

As a result of being required to attend the Beacon Center, Ware claims he has suffered acute emotional distress, damage to his reputation, and severe depression and humiliation. Id., ¶ 66. He has had to forego opportunities to see and care for his daughter, of whom he has joint custody. Id., ¶¶ 43, 66. He was denied the opportunity to reenlist for another tour of duty in the National Guard because of its "zero tolerance" drug policy. He has also been denied security jobs at a security firm for which he works on a part-time basis; he has missed work as a teacher's aide, another part-time job; he lost a full tour of vacation while on suspension from his firefighting job; and he claims he has otherwise suffered severe economic and personal damages. Id., ¶ 67.

The Policy does not provide any guidance concerning what specific recourse an employee may have if those responsible for taking samples do not follow the protocol. However, it does provide for a hearing prior to any imposition of discipline on the employee pursuant to section V(G). The Collective Bargaining Agreement, however, contains an elaborate series of procedures for a disciplined or discharged employee to follow, which includes written service and answer to charges, informal hearing, formal hearing, and appeal to either the Buffalo Municipal Civil Service Commission or the New York State Supreme Court via an Article 78 proceeding. Item 28, Ex. A, pp. 42-46.

Ware has alleged five causes of action in his complaint. The first three causes of action allege violations of federal law and the Due Process Clause of the Fourteenth Amendment: (1) the Policy is arbitrary, capricious, and impermissibly vague; (2) the defendants have applied the Policy to him in an arbitrary and capricious manner; and (3) the Policy's confidentiality provisions fail to protect plaintiff's rights to privacy regarding treatment at the Beacon Center. The fourth cause of action alleges violation of privacy under the state laws and Constitution, and the fifth cause of action alleges intentional infliction of emotional distress caused by the defendants who required Ware to attend the Beacon Center, despite their knowledge that it was causing him such distress, and who refused to expunge his records regarding the December 29, 1997 drug test and related matters.

The defendants have moved to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1), (6), and (7) on the grounds that (1) plaintiff has no standing to challenge the provisions of the Policy; (2) plaintiff fails to state a facial constitutional challenge to the Policy; (3) defendants City of Buffalo, City of Buffalo Fire Department, Fire Commissioner Keane, and Deputy Fire Commissioner Sixt, in their official capacities, are immune from punitive damages liability; (4) the court should decline to exercise jurisdiction over the pendent state law claims since the federal claims should be dismissed; (5) defendant City of Buffalo Department of Fire has no capacity to be sued; and (6) plaintiff has failed to join a party necessary to just adjudication under Fed.R.Civ.P. 19. Items 20, 21.


Because plaintiff concedes that dismissal is warranted against the Buffalo Fire Department as a separate entity (Item 23, pp. 5-6), the Fire Department is dismissed as a defendant.

Plaintiff explicitly agrees that punitive damages are not recoverable against municipalities in section 1983 actions, and impliedly agrees that punitive damages against Sixt and Keane, in their official capacities, cannot be recovered. Therefore, the court dismisses the punitive damages claims against the City of Buffalo, the Fire Department, and Sixt and Keane, in their official capacities.

Also, because the court has been unable to determine how defendant Keane, in his official or individual capacity, may have impinged plaintiff's federal rights since Keane is not mentioned in any cause of action in the complaint, the court dismisses him as a defendant.


I. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(7) and 19, Failure to Join Indispensable Parties

The analysis required by Rule 19 is well settled:

First, the Court must determine whether the absent party should be joined as a "necessary party" under Fed.R.Civ.P. 19(a). Second, if the court decides that the party is required but cannot be joined for practical or jurisdictional reasons, it must determine under Fed.R.Civ.P. 19(b) whether in `equity and good conscience' the action should be dismissed because the party is `indispensable'.

Legal Aid Society v. City of New York, 114 F. Supp.2d 204, 219 (S.D.N Y 2000) (quotation and citations omitted). According to Fed.R.Civ.P. 19(a), a party is a necessary party if:

(1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

Id. at 219-20 (quotation and citations omitted).

The court finds that Local 282 is a necessary party to this litigation under Rule 19(a). The union is subject to service of process, and its joinder will not deprive the court of jurisdiction. Further, in the union's absence, complete relief cannot be accorded plaintiff. The union and the defendant City were signatories to the Policy and the Collective Bargaining Agreement. As one of his claims for relief, plaintiff seeks a judgment declaring the Policy null and void. Obviously the union, as the bargaining representative of its members, has a great interest in the court's determination. The general rule is set forth in 7 Wright-Miller-Kane, Federal Practice & Procedure § 1620 (3d ed. 2001) p. 313:

[T]he union may be found to be a party to be joined if feasible under Rule 19(a) in actions brought by employees against their employers requiring an adjudication that might have a significant impact on the collective-bargaining agreement ...

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