Opinion
Cause No. 1:03-CV-291-TS.
January 7, 2005
MEMORANDUM AND ORDER
The Plaintiff, Delmas Sexton II sued the Clerk of the Jay Circuit and Superior Courts, Jane Ann Runyon, under 42 U.S.C. § 1983 alleging that she divulged confidential information to a third party in violation of Indiana Code § 5-2-9-7 and his constitutional right to privacy. The Defendant moved for summary judgment [DE 32] on October 13, 2004. To date, the Plaintiff has not responded to the Defendant's motion.
PROCEDURAL BACKGROUND
On June 30, 2003, the Plaintiff filed a pro se Complaint against the Defendant in the Jay Superior Court in Indiana. The Plaintiff alleged that the Defendant violated Indiana Code § 5-2-9-7 and 42 U.S.C. § 1983 when she disseminated confidential information, after he had filed it with the Defendant clerk as an attachment to his petitions for protective orders.
On August 4, 2003, the Defendant filed a Petition for Removal with this Court and a Notice of Removal with the Jay Superior Court. The Defendant indicated that her Petition was filed pursuant to 28 U.S.C. § 1446 and the Court's federal question jurisdiction.
On August 26, 2003, the Defendant filed her Answer to Complaint for Damages in this Court and requested a trial by jury. On September 12, 2003, the Court entered its Memorandum and Order directing the Defendant "to show cause . . . why this complaint should not be remanded to state court for failure to state specifically which constitutional right the petition for removal is based." On September 26, 2003, the Defendant's Response to September 12, 2003, Order to Show Cause was filed, in which the Defendant submitted that the Plaintiff's claim was based upon the right to privacy guaranteed by the due process clause of the Fourteenth Amendment.
On October 8, 2003, the Court granted the Defendant's Petition for Removal. On October 10, 2003, the Plaintiff requested appointment of counsel. The Court took the Plaintiff's motion under advisement and ordered the Plaintiff to return a questionnaire provided by the Court within thirty days. The Plaintiff did not return the questionnaire.
On November 25, 2003, the Court screened the case under 28 U.S.C. § 1915A and allowed the Plaintiff to proceed against the Defendant in her individual capacity for damages. On October 13, 2004, the Defendant filed her Motion for Summary Judgment and Notice to the Plaintiff, which met the requirements of Lewis v. Faulkner, 6889 F.2d 100 (7th Cir. 1982). The Plaintiff did not file a response. The last document filed by the Plaintiff was a notice of change of address filed on November 8, 2004. The Plaintiff provided his new address at the Miami Correctional Facility and requested that the clerk forward any orders, motions, or papers entered or filed since October 20, 2004. The Motion for Summary Judgment was filed before October 20 and the Court has no reason to believe that the Plaintiff did not receive the copy of the motion and notice advising him of his obligation to respond.
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party." Dempsey v. Atchison, Topeka, Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted). "`Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.'" Abrams v. Walker, 307 F.3d 650, 653 (7th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe, 42 F.3d at 443. In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). Under Northern District of Indiana Local Rule 56.1(b), the Court is to assume that the facts claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent such facts are controverted in a "Statement of Genuine Issues" filed in opposition to the motion and supported by admissible evidence. Here, the Plaintiff did not controvert the Defendant's statement of facts by filing a Statement of Genuine Issues within thirty days of the Defendant's Motion for Summary Judgment.
As of January, The Plaintiff has not submitted any response to the Defendant's motion, which was filed in mid-October. The Court also notes that the facts submitted by the Defendant derive from the Plaintiff's own deposition and the petitions for protective orders he filed in Jay County Court.
STATEMENT OF FACTS
The Plaintiff, believing that his former girlfriend, Michelle Berghoff, and a Fort Wayne Police Officer were conspiring to kill him, filed two petitions for protective orders with the Jay County Court. The Plaintiff attached a "Confidential Form" to each petition, which provides that the information being provided "is confidential under Indiana law pursuant to I.C. § 5-2-9-7, and it may not be released." On the Form, the Plaintiff provided his social security number and several telephone numbers and provided 215 W. Water Street in Portland, Indiana, as his home address. The Plaintiff was actually incarcerated at the Miami Correctional Facility when he filed the petitions for protective orders and Berghoff and the officer would not have had access to him. He stated in his deposition that he filed the petitions because he wanted to be protected when he was released from jail.On December 21, 2002, Judge Hutchinson held a hearing on the Plaintiff's petitions. The Plaintiff represented himself at the hearing. He testified and had an opportunity to question Berghoff and the police officer. In a ruling from the bench, Judge Hutchinson denied the Plaintiff's petitions. The Plaintiff contends that he later learned that Berghoff had submitted a lengthy ex parte writing to Judge Hutchinson before the hearing.
On the basis of certain information Berghoff included in her ex parte communication, the Plaintiff believes that Berghoff was provided the Confidential Form by either the Defendant or someone else in the clerk's office. The Plaintiff acknowledges that his social security number can be obtained from other sources and that the police officer would have had access to his criminal files, which contain his address and social security number.
The Plaintiff alleges that the Defendant acted negligently because she had a duty under Indiana law not to release the information contained in the Confidential Form and that she did not, therefore, do her job properly. The Plaintiff also alleges that the release of his personal information, such as his address, caused him substantial fear and concern.
DISCUSSION
To set forth a claim under § 1983, the Plaintiff must allege "the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Trautvetter v. Quick, 916 F.2d 1140, 1148 (7th Cir. 1990) (quoting West v. Atkins, 487 U.S. 42, 48 (1988). "State law violations do not form the basis for imposing § 1983 liability." Windle v. City of Marion, 321 F.3d 658, 662 (7th Cir. 2003). Therefore, the Plaintiff's argument that the Defendant's dissemination of the Plaintiff's address and social security number was a violation of state law does not advance the Plaintiff's § 1983 action.
The Plaintiff does not allege a violation of a federal law and, to the extent a federal constitutional right of privacy against the disclosure of personal matters exists, it does not apply to the circumstances of this case. In Whalen v. Roe, 429 U.S. 589, 598-600, 605-06 (1977), the Supreme Court vaguely implied a substantive due process right in government compulsion of a person's medical records. The existence and extent of constitutional protections for disclosure of personal matters depends on the type of information involved and the reasonable expectation that the information would remain confidential. Whalen, 429 U.S. at 604; Nixon v. Admin. of Gen. Servs., 433 U.S. 425, 465 (1977). In Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995), the Seventh Circuit recognized that a number of lower federal courts, building on Whalen and Nixon, have recognized a qualified constitutional right to the confidentiality of medical records and medical communications. See also Denius v. Dunlap, 209 F.3d 944, 957-58 (7th Cir. 2000) (noting Seventh Circuit law holding that medical information may be a form of protected confidential information because of its intimate and personal nature). More recently, the Seventh Circuit has recognized that the constitutional right of privacy in confidential information covers some financial disclosures. Denius, 209 F.3d at 958.
Because confidential financial information may implicate substantial privacy concerns and impact other fundamental rights, we agree with the overwhelming majority of our sister circuits that some types of financial information involve the degree and kind of confidentiality that is entitled to a measure of protection under the federal constitutional right of privacy.Id.
Here, the type of information involved, the Plaintiff's address and social security number, does not involve the degree and kind of confidentiality entitled to protection under the Constitution. It is not information of an intimate or personal nature. An address is readily provided to, and available from, various sources. The Plaintiff admitted that his social security number was available from his criminal records. Moreover, while a social security number is often protected from disclosure and is not disseminated to the public, the contention that disclosure of a social security number violates the right to privacy has been "consistently rejected." See McElrath v. Califano, 615 F.2d 434, 441 (7th Cir. 1980) (holding that disclosure of social security number as a condition of eligibility for government financial assistance did not violate plaintiff's right to privacy) (citing Cantor v. Supreme Ct. of Penn., 353 F. Supp. 1307, 1321-22 (E.D. Pa. 1973); Conant v. Hill, 326 F. Supp. 25, 26 (E.D. Va. 1971)); but see Arakawa v. Sakata, 133 F. Supp. 2d 1223, 1226-29 (D. Hi. 2001) (considering "the voluminous and largely ambiguous case law on the subject" of privacy rights in confidential information and concluding that the public disclosure of motorist's social security number violated constitutional privacy rights).
Even if the Seventh Circuit or the Supreme Court were to hold that social security numbers are the type of personal information that one would reasonably expect to remain confidential, such that they should enjoy constitutional protection from dissemination, the Defendant would be immune from suit for providing this information under the defense of qualified immunity. Qualified immunity protects public officials from civil suit based on their discretionary functions except where that conduct violated "clearly established" law. Sherman v. Four County Counseling Ctr., 987 F.2d 397, 407 (7th Cir. 1993). The Supreme Court's test for qualified immunity has been summarized by the Seventh Circuit:
In determining whether the right alleged to have been violated was "clearly established," the constitutional right must be identified in a particularized sense with respect to the circumstances of the alleged violation. In other words, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. The plaintiff bears the burden of showing that the constitutional right allegedly violated was clearly established before the defendant acted or failed to act. This requires the plaintiff to offer either a closely analogous case or evidence that the defendants' conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts.Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993) (quotation marks and citations omitted).
To show that the Defendant's conduct violated a right that was clearly established and overcome the immunity, the Plaintiff may not rely on a general proposition that the Constitution protects certain privacy rights, including a right of confidentiality in certain types of information. The Plaintiff must point to a controlling case or statute establishing a constitutional right to privacy in an address and social security number. The Plaintiff has not responded to the Defendant's Motion for Summary Judgment and the Court finds that a constitutional right to privacy in a social security number and address has not been clearly established, and its parameters have not been clearly defined, in this jurisdiction. The cases involving medical and financial information are not closely analogous. Nor was the alleged conduct so patently violative of the constitution that a reasonable clerk's office employee would know the disclosure was a violation of the constitution in the absence of such legal precedent. Therefore, the Defendant is immune from suit and the federal claim is dismissed.
The Plaintiff's state claim for violation of Indiana Code § 5-2-9-7 is remanded to the Jay Superior Court where the suit originated. See 28 U.S.C. § 1367(c)(3) (granting district courts authority to decline to exercise supplemental jurisdiction and remand a case if the district court has dismissed all claims over which it has original jurisdiction); Kircher v. Putnam Funds Trust, 373 F.3d 847 (7th Cir. 2004) ("District courts should relinquish supplemental jurisdiction under certain circumstances remanding to state court if the suit originated there.").
CONCLUSION
For the foregoing reasons, the Defendant's Motion for Summary Judgment [DE 32] is GRANTED as to the federal claim. Pursuant to Federal Rule of Civil Procedure 54(b), the Court finds that there is no just reason for delay and the Clerk shall enter JUDGMENT for the Defendant and against the Plaintiff on the Plaintiff's § 1983 federal claim. The state claim is REMANDED to the Jay Superior Court.SO ORDERED.