UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA DARYL LOCKE, Civil No. 3:19-cv-0499 Plaintiff : (Judge Mariani) Vv. JOHN WETZEL, et al, Defendants MEMORANDUM On March 20, 2019, Plaintiff Daryl Locke (“Plaintiff”), an inmate currently confined in the Smithfield State Correctional Institution, Huntingdon, Pennsylvania (“SCI-Smithfield”), filed the above-captioned action pursuant to 42 U.S.C. § 1983 and the Fair Credit Report Act (“FCRA”). The named Defendants are John Wetzel (“Wetzel”), Mr. Dreibelbis (“Dreibelbis”), Mr. Swisher (“Swisher”), Debra Jadlocki (“Jadlocki”), Ms. P. Luther (“Luther”), and Mr. Rupert (“Rupert”). (Doc. 1). Presently before the Court is Defendants’ second motion to dismiss Plaintiffs complaint. (Doc. 25). The motion if fully briefed and is ripe for disposition. For the reasons set forth below, Defendants’ second motion to dismiss will be granted.
I. BACKGROUND Plaintiff alleges that at some unknown time, he “read in the newspaper that on April 3, 2018, a company named Accreditation Audit Risk-Management Security, LLC (AARMS)
had suffered a data breach, while in possession of the private information of 13,100 inmates, 680 employees and 11 others within the State Department of Corrections (DOC).” (Doc. 1 at 7.) AARMS notified the DOC of the data breach on April 9, 2018. Id. Defendant Weitzel, however, did not mail notice of the data breach to Plaintiff until July 19, 2018, and Plaintiff received the notice on July 24, 2018. Id. Plaintiff maintains that the DOC “never informed [him] that they would be distributing his private information (Full Name, Home Address, Social Security Number and Medical Records) to a third party, which is contracted vendor of the DOC.” /d. He alleges that the DOC “failed to obtain a signed release form (DC-108 form) from [him] which would have authorized the release of his private information to a third party.” /d. Plaintiff asserts that Defendants, all of whom are supervisors of various departments within the DOC, disseminated his private information without his consent. /d. at 2-3, 8. He further maintains that Defendant Wetzel’s failure to promptly notify him of the data breach “gave ample amount of time for [his] private information to be sold/misused.” /d. at 8. Plaintiff alleges that because of the data breach and the delay in notification, “he is 9.5 times more likely than the public to suffer identity fraud or theft.” /d. Based on these allegations, Plaintiff asserts that Defendants violated his “civil rights to privacy,” his rights under the FCRA, and “numerous State [p]rivacy [l]Jaws and DOC policy.” /d. at 3,9. He seeks declaratory and injunctive relief, as well as damages. /d. at 4, 10.
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By Memorandum and Order dated December 11, 2019, Defendants’ first motion to dismiss was denied without prejudice to refiling a second motion to dismiss, addressing whether Plaintiff has stated plausible claims for relief under 42 U.S.C. § 1983 and the FCRA. (Docs. 22, 23). Specifically, the Court concluded that Plaintiff had stated a cognizable injury for Article III standing purposes and that Defendants had failed to address whether Plaintiff has a right to privacy regarding his personal information under § 1983 and whether Plaintiff can maintain a claim for relief under the FCRA. /d. On January 6, 2020, Defendants filed a second motion to dismiss, along with a brief in support. (Docs. 25, 26). Defendants maintain that Plaintiffs claims pursuant to § 1983 should be dismissed with prejudice because § 1983 “provides only a limited right to privacy for medical information” and because they are entitled to qualified immunity. (Doc. 26 at 4). Defendants assert further that Plaintiff's claims pursuant to the FCRA should be dismissed with prejudice because “neither the Department of Corrections nor its officers are contemplated as proper parties under the FCRA, the FCRA provides very limited private rights of action, and Plaintiff has not adhered to the strict process for bringing a private cause of action.” (Doc. 26 at 10). Because Defendants supporting brief relied heavily on a decision this Court rendered in Eades v. Wetzel, et al., Civil No. 1:19-cv-0512, which was pending before the United States Court of Appeals for the Third Circuit at the time Defendants’ second motion to dismiss became ripe for disposition, by Memorandum and Order dated September 11, -3-
2020, this Court stayed a ruling on Defendants’ second motion to dismiss, pending the outcome in Eades. (Doc. 43, 44). On February 8, 2021, Defendants filed a Supplemental Brief, indicating that on January 28, 2021, the Third Circuit Court of Appeals issued an opinion in Eades v. Wetzel, No. 19-3821, 2021 WL 287752 (3d Cir. Jan. 28, 2021). (Doc. 49). By Order dated February 9, 2021, the Court directed Defendants to serve their supplemental brief on Plaintiff and for Plaintiff to file a brief in opposition to Defendants’ supplemental brief. (Doc. 50). On March 9, 2021, Plaintiff filed a supplemental brief in opposition to Defendants’ second motion to dismiss. (Doc. 55).
ll. |§ MOTION TO DISMISS Federal notice and pleading rules require the complaint to provide the defendant notice of the claim and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure 8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure 12(b)(6) for its “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6).
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When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and all reasonable inferences that can be drawn from them, viewed in the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent dismissal, all civil complaints must set out “sufficient factual matter” to show that their claims are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The plausibility standard requires more than a mere possibility that the defendant is liable for the alleged misconduct: “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show(n]’ — ‘that the pleader is entitled to relief.” See Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2)). Accordingly, the Third Circuit has identified the following steps that a district court must take when reviewing a 12(b)(6) motion: (1) identify the elements that a plaintiff must plead to state a claim; (2) identify any conclusory allegations contained in the complaint that
are “not entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal citations and quotation marks omitted). The Third Circuit has specified that in ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly -5-
authentic documents if the complainant’s claims are based upon these documents.” See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). In the context of pro se prisoner litigation, the court must be mindful that a document filed pro se is “to be liberally construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can be dismissed for failure to state a claim only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
A. Section 1983 Standard Section 1983 is the vehicle by which private citizens may seek redress for violations of federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The Statute states, in pertinent part: 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. Id. “Section 1983 is not a source of substantive rights,” but is merely a means through which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 -6-
U.S. 273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that: (1) the conduct complained of was committed by persons acting under color of state law; and (2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United States. See Harvey v. Plains Twp. Police Dep't, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). lll. DISCUSSION Defendants maintain that Plaintiffs claims pursuant to § 1983 should be dismissed with prejudice because § 1983 “provides only a limited right to privacy for medical information” and because they are entitled to qualified immunity. (Doc. 26 at 4). Defendants assert further that Plaintiff's claims pursuant to the FCRA should be dismissed with prejudice because “neither the Department of Corrections nor its officers are contemplated as proper parties under the FCRA, the FCRA provides very limited private rights of action, and Plaintiff has not adhered to the strict process for bringing a private cause of action.” /d. These same arguments were granted as appropriate grounds for dismissal in Eades v. Wetzel, et al., Civil No. 1:19-cv-0512 and affirmed on appeal in Eades v. Wetzel, No. 19-3821, 2021 WL 287752 (3d Cir. Jan. 28, 2021). This Court finds that the instant case is identical in all respects to Eades‘ and, as such, is to be decided the same.
' The Court takes judicial notice that both complaints include the same nineteen numbered paragraphs, as well as the same identically described three causes of action, and the exact same requests for relief. 7.
A. Plaintiff's Section 1983 Claims As noted above, Plaintiff alleges that Defendants’ actions violated his “civil rights to privacy.” (Doc. 1 at 3). Individuals have a constitutional right to privacy that protects “the individual interest in avoiding disclosure of personal matters.” See Whalen v. Roe, 429 U.S. 589, 599 (1977). “There can be no question that... medical records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection.” United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980). The Third Circuit has held that inmates retain a Fourteenth Amendment “right to privacy in one’s medical information.” See Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001). That right, however, “is subject to substantial restrictions and limitations in order for correctional officers to achieve legitimate correctional goals and maintain institutional security.” See id. This analysis, performed pursuant to Turner v. Safley, 482 U.S. 78 (1987), requires courts to weigh the following four (4) factors: First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it, and this connection must not be so remote as to render the policy arbitrary or irrational. Second, a court must consider whether inmates retain alternative means of exercising the circumscribed right. Third, a court must take into account the costs that accommodating the right would impose on other inmates, guards, and prison resources generally. And fourth, a court must consider whether there are alternatives to the regulation that fully accommodate the prisoner's rights at de minimis cost to valid penological interests.
DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) (internal quotations omitted).
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The Delie court did not address whether legitimate penological interests were present in that matter because the court determined that the corrections officials were entitled to qualified immunity. See id. at 318-323. Specifically, the Third Circuit concluded “that the contours of defendants’ legal obligations under the Constitution were not sufficiently clear in 1995 that a reasonable prison official would understand that the non- consensual disclosure of a prisoner's HIV status violates the Constitution.” See id. at 322. The Third Circuit noted that “[t]he exact parameters of a prisoner's right to privacy in [medical] information will have to be determined in a later case on a more complete record, where the Turner factors can be fully considered in the context of the penological interests concerned.” See id. at 323. In the above-captioned case, Defendants maintain that this Court “should make a similar determination and hold that [they] are entitled to qualified immunity because Plaintiff's claimed right of absolute privacy in his medical information has not been clearly established by the limited case law.” (Doc. 26 at 8.) “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In order to determine whether a right was clearly established, the Court must ask “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” See Schmidt v. Creedon, 639 F.3d 587, 598 (3d Cir. 2011). “If it -9-
would not have been clear to a reasonable officer what the law required under the facts alleged, then he is entitled to qualified immunity.” /d. Stated differently, for a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” See al-Kidd, 563 U.S. at 741. As the Supreme Court recently noted, “[t]his demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.” See District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Accordingly, “there must be sufficient precedent at the time of action, factually similar to the plaintiffs allegations, to put [the] defendant on notice that his or her conduct is constitutionally prohibited.” See Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)). The United States Supreme Court's decision in White v. Pauly, 137 S. Ct. 548 (2017), clarifies the Court’s inquiry in this regard. In that case, the Supreme Court reaffirmed that its case law “do[es] not require a case directly on point” for a right to be clearly established, but “existing precedent must have placed the statutory or constitutional question beyond debate.” See id. at 551 (internal quotation marks omitted) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). The Supreme Court reiterated that the clearly-established law “must be ‘particularized’ to the facts of the case,” and cautioned that the fact that a case presents a unique set of facts and circumstances is an “important
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indication” that a defendant's conduct at issue did not violate a “clearly established” right. See id. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Defendants argue that qualified immunity is appropriate because cases following Delie “have done little to fill in the gaps left by Delie and define the parameters of a prisoner's right to privacy in his medical information.” (Doc. 26 at 7.) For example, in 2012, the Third Circuit considered an inmate’s appeal of the district court’s conclusion that qualified immunity applied to his claim that his right to privacy was violated when medical staff members held “confidential counseling sessions within view and within potential earshot of other inmates.” See Smith v. Hayman, 489 F. App’x 544, 548 (3d Cir. 2012). The Third Circuit agreed that the “record d[id] not demonstrate that the defendants violated
a Clearly established constitutional right,” noting that it was “aware of no case law . . . that would suggest that the conduct of the defendants, in light of their attempts to avoid disclosure, violated a clearly established constitutional right, and [Delie] did not establish any such rule with ‘obvious clarity.” See id. at 549 (quoting Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012)). in 2016, the United States District Court for the Eastern District of Pennsylvania concluded that qualified immunity shielded corrections officers from the inmate-plaintiffs claim that his privacy rights were violated when officers disclosed his HIV status because “case law at the time of the alleged violation did not clearly state what actions would and would not constitute a violation of a prisoner’s right to privacy in his medical information.” See Jefferson v. Husain, No. 14-2485, 2016 WL 1255731, at *9 (E.D. -11-
Pa. Mar. 31, 2016). Likewise, in 2014, the Honorable William W. Caldwell, relying upon the Third Circuit's decision in Smith, concluded that qualified immunity barred an inmate- plaintiff's claim that his privacy rights were violated when a prison doctor held counseling sessions at his cell door. See /lles v. Kcomt, No. 1:12-CV-0395, 2014 WL 297352, at “3 (M.D. Pa. Jan. 27, 2014). In the instant case, as in Eades, Plaintiff maintains that Defendants violated his constitutional right to privacy by unlawfully releasing his personal information to a third-party vendor, AARMS, resulting in his information being misappropriated when AARMS suffered a data breach. (Doc. 1 at 7). As noted above, in order to conclude that a right is clearly established for purposes of qualified immunity, the Court must analyze the specific facts of the case, consider the circumstances confronted by the defendants, and find a body of relevant case law addressing similar circumstances. See Wesby, 138 S. Ct. at 590 (citing White, 137 S. Ct. at 552; al-Kidd, 563 U.S. at 741; Brosseau, 543 U.S. at 199). The Third Circuit affirmed the Eades’ Court finding that there is no relevant Supreme Court or Third Circuit precedent holding that corrections officials’ decision to release inmates’ personal information to a third-party vendor violates the right to privacy under the Fourteenth Amendment, and therefore, concluded that any alleged violation of Plaintiffs right to privacy under the facts alleged was not a clearly established right under the second prong of the
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qualified immunity analysis. Eades, 2021 WL 287752 at *1. Thus, this Court will accordingly grant Defendants’ motion to dismiss on the same basis.’ B. Plaintiff's FCRA Claims The FCRA was enacted “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007); see also SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 357 (3d Cir. 2011) (noting that the FCRA is intended “to protect consumers from the transmission of inaccurate information about them, and to establish credit reporting practices that utilize accurate, relevant[,] and current information in a confidential and responsible manner” (quoting Cortez v. Trans Union, LLC, 617 F.3d 688, 706 (3d Cir.
2 In his brief in opposition, Plaintiff suggests that “[wJhile the parameters of [his] right to privacy in his medical information may not as of yet been fully define[d] . . . [his] right to privacy in his Social Security Number has [in] fact and law been fully and clearly defined.” (Doc. 40). This Court has previously noted that “the release of a person’s social security number may violate a plaintiff’s substantive due process right to privacy.” See Reed v. Chambersburg Area Sch. Dist. Found., No. 1:13-cv-00644, 2014 WL 1028405, at *5 (M.D. Pa. Mar. 17, 2014). Again, however, the Court has not located any relevant Supreme Court or Third Circuit precedent holding that corrections officials’ decisions to release inmates’ personal information, including their Social Security numbers, to a third-party vendor violates the Fourteenth Amendment such that the right was clearly established to defeat the application of qualified immunity. The Court of Appeals in Eades agreed that “[t]his Court has not addressed the issue in a precedential opinion, and other Courts of Appeals have held that “the Constitution does not provide a right to privacy in one’s SSN.” Cassano v. Carb, 436 F.3d 74, 75 (2d Cir. 2006) (per curiam); see also Barber v. Overton, 496 F.3d 449, 456 (6th Cir. 2007); McElrath v. Califano, 615 F.2d 434, 441 (7th Cir. 1980).” Eades, 2021 WL 287752 at *2. As such, the Court of Appeals concluded that “Eades therefore cannot show that he had a clearly established constitutional right to privacy in his Social Security number.” /d. This holding applies to Locke’s claim and supports this Court’s dismissal of said claim. -13-
2010)). Under the FCRA, consumer reporting agencies must “follow reasonable procedures to ensure maximum possible accuracy of the information concerning the individual about whom the report relates.” See 15 U.S.C. § 1681e(b). A consumer reporting agency is an
agency that “regularly engages in whole or in part in gathering or evaluating information on
consumers for the purposes of furnishing consumer reports to third parties.” See id. § 1681a(f); see also DiGianni v. Stern’s, 26 F.3d 346, 348-49 (2d Cir. 1994) (noting that the term “consumer reporting agency” as used in the FCRA “refers to firms that are in the business of assembling and evaluating consumer credit information”). In the instant case, the Court agrees with Defendants that they are not “consumer reporting agencies” as contemplated by the FCRA. Plaintiff, however, maintains that Defendants are liable for the “unauthorized dissemination” of his personal information. Under the FCRA, a “furnisher’” of information is an entity, often a creditor, that furnishes information regarding a consumer to consumer reporting agencies for inclusion in a consumer report. See 16 C.F.R. § 660.2(c). Section 1681s-2(b) of the FCRA “imposes certain duties on a furnisher/creditor who has been notified by a consumer credit reporting agency that a consumer has disputed information furnished by that furnisher/creditor.” See Harris v. Pa. Higher Educ. Assistance Agency/Am. Educ. Servs., 696 F. App’x 87, 90 (3d Cir. 2017). These duties, however, “are triggered only after a furnisher of information receives notices from a consumer reporting agency about a dispute.” See id. at 91; see also SimmsParris, 652 F.3d at 358 (noting that notice -14-
“must be given by a credit reporting agency, and cannot come directly from the consumer’). While a consumer “may certainly notify a furnisher/creditor directly about his dispute . . . there is no private cause of action under § 1681s-2(b) for a furnisher’s failure to properly investigate such a dispute.” See Harris, 696 F. App’x at 91. In the instant case, Plaintiff's complaint fails to establish that he notified any consumer reporting agency about a dispute arising from Defendants’ alleged furnishing of his personal information. Plaintiff does not dispute this finding in his brief in opposition. Plaintiff's failure to notify any consumer reporting agency about such a dispute, therefore, renders fatal any claims brought against Defendants pursuant to § 1681s-2(b). See Eades, 2021 WL 287752 at *1 (finding that even assuming that the defendants can qualify as “furnishers of information’ under the FCRA,” Eades’ claim fails because he has not alleged that AARMs gave notice to the defendants of any “dispute with regard to the completeness or accuracy of any information”). Accordingly, the Court will grant Defendants’ motion to dismiss Plaintiffs FCRA claims. IV. LEAVE TO AMEND Courts are cautioned that because of the applicable pleading standard, a plaintiff should generally be granted leave to amend before dismissing a claim that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The federal rules allow for liberal amendment in light of the “principle that the purpose of pleading is to facilitate a proper decision on the merits.” See Foman v. Davis, 371 U.S. 178, -15-
182 (1962) (citations and internal quotations omitted). The Court may deny a motion to amend where there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” See id. The Court must also determine that a proposed amendment would be futile if the complaint, as amended, would not survive a motion to dismiss for failure to state a claim. See In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002). Based on the foregoing, the Court finds that affording Plaintiff an opportunity to file an amended complaint would be futile. See Foman, 371 U.S. at 182; Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (stating that the futility exception mandates that a complaint, as amended, would fail to state a claim upon which relief may be granted). See also Eades, 2021 WL 287752 at 2, n.3 (holding that in light of the legal bars to Eades’ claims, the District Court did not err in concluding that amendment would be futile). V. CONCLUSION For the foregoing reasons, the Court will grant Defendants’ second motion to dismiss (Doc. 25) and dismiss Plaintiff's complaint with prejudice. Plaintiff will not be granted leave to file an amended complaint. An appropriate Order follows
Date: March4| 2021 tCn \. hilly □□ Robert D. Mariant United States District Judge -16-