Opinion
Case No. 3:02 CV 7357
December 3, 2002
ORDER
Plaintiff Timothy R. Villa brings this suit against defendants Village of Elmore, the Clerk of Courts of the City of Sylvania Municipal Court, The Press, and Kelly J. Kaczala under 42 U.S.C. § 1983, 5 U.S.C. § 552a, and Ohio law. This court has jurisdiction pursuant to 28 U.S.C. § 1331. Pending are defendants' motions to dismiss. For the following reasons, the motions shall be granted as to plaintiff's federal claims. The motions shall be granted without prejudice as to plaintiff's state-law claims.
BACKGROUND
Defendant Village of Elmore, Ohio ("Village"), employed plaintiff as a patrol officer between approximately September 28, 1969, and April 27, 1970.
In April, 1970, a Lucas County, Ohio, sheriff's officer arrested plaintiff on charges of carrying a concealed weapon and impersonating an officer. Sometime between August 4 and September 24, 1970, a Lucas County grand jury no-billed the charge of carrying a concealed weapon.
Defendant Clerk of Courts of the City of Sylvania Municipal Court ("Clerk") is an elected officer of the City of Sylvania, Ohio. On October 23, 1970, a judgment entry as to plea was entered with defendant Clerk, with both "not guilty" and "nolo contendere" marked as the plea.
On March 28, 1977, an order for expungement of the charge filed against plaintiff for impersonating an officer was entered with defendant Clerk. On July 26, 1978, an order for expungement of the charge filed against plaintiff for carrying a concealed weapon was entered in the Court of Common Pleas of Lucas County, Ohio.
Defendant The Press is a newspaper published in Millbury, Ohio. Defendant Kelly J. Kaczala is a reporter and news editor at The Press. On July 17, 2000, The Press published an article written by Kaczala in which the charges, expunged in 1977 and 1978, were identified as having been obtained from defendant Clerk.
On the date the article was published, plaintiff was employed as the chief of police in Walbridge, Ohio, and as a special deputy for the Lucas County Sheriff's Office. He also was employed as the owner of Data Research, Inc., an investigation and detective agency in Sylvania.
On August 3, 2000, the Clerk of Courts for the Lucas County Common Pleas Court sent defendant Clerk a copy of the 1978 expungement order for the concealed weapon charge. On August 10, 2000, defendant Clerk eradicated from its records all references to the expunged charges.
On August 30, 2000, plaintiff's counsel notified defendants The Press and Kaczala that any references to the charges filed against plaintiff would be considered defamatory and actionable.
On December 10, 2001, The Press published another article written by Kaczala stating that plaintiff was arrested in 1970 "for impersonating an officer and carrying a concealed weapon." This article identified two sources of the information on the charges: defendants Village and Clerk. Defendant Village had a personnel file on plaintiff, and the file contained a subpoena that had been issued based on the 1970 charges. Defendant Clerk's court dockets and indexes contained references to both charges.
Plaintiff, a resident of Sylvania, Ohio, no longer is the Walbridge police chief or a special deputy for the Lucas County Sheriff's Office.
Plaintiff filed suit against the four defendants on July 12, 2002. Plaintiff asserts a § 1983 claim against defendants Village and Clerk for allegedly violating his constitutional rights as guaranteed under the Fourth, Fifth, and Fourteenth Amendments. Plaintiff also asserts a claim against defendants Village and Clerk under the Federal Privacy Act, 5 U.S.C. § 552a. Plaintiff asserts claims against defendants Village and Clerk under O.R.C. § 2953.31 et seq. and O.R.C. § 1347. Plaintiff asserts a common-law invasion of privacy claim against all four defendants. Finally, plaintiff asserts a defamation claim against defendants The Press and Kaczala.
Plaintiff has stipulated to the dismissal of two additional defendants, the Ohio Government Risk Management Plan and the Twin City Fire Insurance Company.
Defendants Village and Clerk have filed a motion to dismiss. Defendants The Press and Kaczala have filed a separate motion to dismiss.
STANDARD OF REVIEW
No complaint shall be dismissed unless the plaintiff has failed to allege facts in support of plaintiff's claim that, construed in plaintiff's favor, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the inquiry is essentially limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F. Supp. 187, 191 (N.D.Ohio. 1996). The court must accept all the allegations stated in the complaint as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), while viewing the complaint in the light most favorable to the plaintiff. Sheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
DISCUSSION I. Constitutional Claim
Plaintiff's § 1983 claim against defendants Village and Clerk alleges they violated his rights as guaranteed under the Fourth, Fifth, and Fourteenth Amendments to the Constitution.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983.
To make out a claim under § 1983, a plaintiff must show that 1) the action occurred under color of state law, and 2) the action resulted in a deprivation of a constitutional right or a federal statutory right. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Defendants Village and Clerk do not dispute they acted under color of state law. The parties disagree, however, as to whether plaintiff alleges the deprivation of a constitutional right.
The complaint does not mention the Clerk by name, only by title, and the parties disagree as to whether plaintiff's complaint names the Clerk in his or her individual or official capacity. It is unnecessary to resolve this dispute. Plaintiff must plead that the Clerk violated a right secured by the Constitution or federal law for the § 1983 claim to proceed against the Clerk, and because plaintiff has not pled such an injury, the Clerk could not be liable in either capacity.
The Supreme Court held in 1976 that the Fourteenth Amendment's guarantee of personal privacy "must be limited to those which are `fundamental' or `implicit in the concept of ordered liberty.'" Paul v. Davis, 424 U.S. 693, 713 (1976) (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). In Paul, the police had circulated a flyer to merchants labeling plaintiff as an "active shoplifter" after plaintiff was arrested for shoplifting. After the flyer was circulated, a judge dismissed the charge. Id. at 695-96. Plaintiff alleged a violation of his Fourteenth Amendment right to privacy.
The Court noted that its past Fourteenth Amendment privacy decisions held that the Constitution covers activities such as marriage, procreation, contraception, family relationships, and child rearing and education. Id. at 713. Because the activity in Paul was the publicity of "an official act such as an arrest," the Court found that "[r]espondent's claim is far afield from this line of decisions." Id.
Two Supreme Court cases in the following year also dealt with the constitutional right to privacy. In Whalen v. Roe, the Supreme Court stated that the Constitution protects the "individual interest in avoiding disclosure of personal matters." 429 U.S. 589, 599 (1977); see also Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 457 (1977) (same).
The Sixth Circuit has narrowly construed Whalen and Nixon, holding that the right to privacy is triggered only when the interest at stake concerns "those personal rights that can be deemed `fundamental' or `implicit' in the concept of ordered liberty." J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981). The court stated, "We do not view the discussion of confidentiality in Whalen v. Roe as overruling Paul v. Davis and creating a constitutional right to have all government action weighed against the resulting breach of confidentiality." Id. at 1088-89; see also Kallstrom v. City of Columbus, 136 F.3d 1055, 1061 (6th Cir. 1998) ("This circuit has read Whalen and Nixon narrowly, and will only balance an individual's interest in nondisclosure of informational privacy against the public's interest in and need for the invasion of privacy where the individual privacy interest is of constitutional dimension.").
Some other circuits have read Whalen and Nixon more broadly, finding a constitutional right to privacy in nondisclosure of personal information. See Barry v. City of New York, 712 F.2d 1554, 1559 (2d Cir. 1983); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577-580 (3d Cir. 1980); Plante v. Gonzalez, 575 F.2d 1119, 1132, 1134 (5th Cir. 1978).
Courts in the Sixth Circuit use a two-step process when analyzing informational privacy claims. First, they ask whether the interest at stake implicates either a fundamental right or one implicit in the concept of ordered liberty. If such a right was implicated, the government's interest in disseminating the information must be balanced against the individual's interest in keeping the information private. This balancing test only should be employed if a fundamental or traditional right is violated. "[N]ot all rights of privacy or interests in nondisclosure of private information are of constitutional dimension, so as to require balancing government action against individual privacy." DeSanti, 653 F.2d at 1091.
The first step, thus, considers whether plaintiff has alleged any facts that could prove that a fundamental or traditional right was implicated when defendants Village and Clerk released the information about plaintiff's expunged criminal records to defendants The Press and Kaczala.
As noted, the Supreme Court held in Paul that plaintiff did not have a privacy interest in preventing local officials from "publicizing a record of an official act such as an arrest." 424 U.S. at 713. In DeSanti, the Sixth Circuit held that there is no constitutional right to non-disclosure of juvenile court records to social services organizations. The court said that this disclosure was "indistinguishable" from the disclosure the Supreme Court permitted in Paul. 653 F.2d at 1088.
The Sixth Circuit reaffirmed this holding in Cline v. Rogers, 87 F.3d 176 (6th Cir. 1996), upholding the dismissal of plaintiff's § 1983 action filed when the sheriff disclosed plaintiff's adult criminal records to a private citizen. The court held, "There is no violation of the United States Constitution in this case because there is no constitutional right to privacy in one's criminal record. Nondisclosure of one's criminal record is not one of those personal rights that is `fundamental' or `implicit in the concept of ordered liberty.'" 87 F.3d at 179. The court noted, "[O]ne's criminal history is arguably not a private `personal matter' at all, since arrest and conviction information are matters of public record." Id.
Plaintiff argues that because his record was expunged, Paul, DeSanti, and Cline are not dispositive. I disagree.
While the Sixth Circuit has not addressed the issue of whether there is a constitutional right to privacy in expunged criminal records, other circuits have concluded that there is no such right.
In AFL-CIO v. Dep't of Hous. Urban Dev., 118 F.3d 786 (D.C.App. 1997), the Court of Appeals expressed "grave doubts" as to the existence of a constitutional right to the nondisclosure of personal information. 118 F.3d at 791. The court held that even if such a right existed, it was not violated when the Department of Defense required some employees to disclose their criminal records, including records that had been expunged. The court reasoned that the plaintiffs had no constitutional interest in protecting records of "an official act such as an arrest." Id. at 794 (citing Paul, 424 U.S. at 713).
Two other courts of appeals have concluded that there is no constitutional right of privacy in expunged criminal records. Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996); Nilson v. Layton, 45 F.3d 369, 372 (10th Cir. 1995). Each court, relying on a broader interpretation of Whalen and Nixon than that taken by the Sixth Circuit, presumed that the Fourteenth Amendment protects citizens from "unwarranted governmental intrusions into their personal lives." Eagle, 88 F.3d at 625. Accord, Nilson, 45 F.3d at 371. Such intrusions violate a "legitimate expectation of privacy" in the disclosed material. "Expectations of privacy are legitimate if the information which the state possesses is highly personal or intimate." Nilson, 45 F.3d 369, 372 (10th Cir. 1995). Finding that any expectation in the privacy of expunged records did not come within this definition, each court concluded that the constitutional right to privacy was not violated by disclosure of such records. Eagle, 88 F.3d at 625; Nilson, 45 F.3d at 372.
Plaintiff argues that because the expungement orders were issued pursuant to state statutes, he had a constitutional right to privacy in the information. This argument misstates the source of the constitutional right to privacy, and was rejected in Eagle and Nilson:
We are unpersuaded by Eagle's contention that this result should somehow be different because his criminal record was ultimately expunged. . . . [S]tate laws, such as Arkansas' expungement provisions, do not establish the parameters of constitutional rights, like the right to privacy, that are grounded in substantive theories of due process.
Eagle, 88 F.3d at 626; see also Nilson, 45 F.3d at 372 ("[W]hile state statutes and regulations may inform our judgement regarding the scope of constitutional rights, they fall far short of the kind of proof necessary to establish a reasonable expectation of privacy.").
The question in this case is not whether plaintiff had a legitimate expectation of privacy in his expunged arrest records, but whether this alleged expectation relates to a personal right that is fundamental or implicit in the concept of ordered liberty. Following the holdings of Paul, DeSanti, and Cline, I find that plaintiff's constitutional rights were not implicated in the release of his expunged criminal records. Defendants Village and Clerk are, accordingly, entitled to summary judgment on plaintiff's § 1983 claim.
Plaintiff's § 1983 claim alleging that defendants Village and Clerk violated his rights under the Fourth and Fifth Amendments is without merit. Courts have recognized that privacy rights may be grounded in both the Fourth and Fifth Amendments. Roe v. Wade, 410 U.S. 113, 152 (1973). The Sixth Circuit, however, apparently rejects the argument that these amendments protect a right to informational privacy. DeSanti, 653 F.2d at 1087-88. I decline to extend them here.
II. Federal Privacy Act Claim
Plaintiff alleges that defendants Village and Clerk violated the Federal Privacy Act, 5 U.S.C. § 552a, which provides an individual with civil remedies for the improper disclosure of records about the individual that are maintained in a system of records.Plaintiff's claim under this Act must be dismissed. The Act applies only to federal agencies. 5 U.S.C. § 552a(a)(1); Polchowski v. Gorris, 714 F.2d 749, 752 (7th Cir. 1983) ("Congress, when considering this legislation, specifically limited its scope to federal agencies"); St. Michael's Convalescent Hospital v. State of California, 643 F.2d 1369, 1373 (9th Cir. 1981) (same). Plaintiff has not shown why his claim against a municipality and a municipal official implicates this federal statute.
In any event, plaintiff has not responded to defendants' argument that the statute does not apply. Plaintiff, therefore, has abandoned his Federal Privacy Act claim.
III. State Law Claims
Having disposed of plaintiff's two federal claims, I decline to exercise supplemental jurisdiction to address plaintiff's four state law claims.
It is within the trial court's discretion to dismiss a cause without prejudice once the federal claims are resolved. United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966). Absent a question of federal policy, it is wiser to allow state courts to resolve state law claims. Gibbs, 383 U.S. at 726-27. The remaining claims in this case do not present federal questions. I will, therefore, decline to exercise jurisdiction over the state law claims.
CONCLUSION
Plaintiff had no constitutional privacy right in his expunged criminal record, so the Village and Clerk did not inflict a constitutional injury upon plaintiff when they released it. Plaintiff's § 1983 claim is dismissed. Plaintiff's Federal Privacy Act claim must be dismissed because the Act does not apply to the defendants, and because the plaintiff has abandoned it. I dismiss the four state law claims without prejudice for lack of subject matter jurisdiction.
It is, therefore, ordered:
1) That Count I ( 42 U.S.C. § 1983) and Count IV ( 5 U.S.C. § 552a) are hereby dismissed;
2) That Counts II, III, V, and VI are hereby dismissed, without prejudice.
So ordered.