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K. B. v. City of Venice

United States District Court, M.D. Florida, Tampa Division

December 23, 2019

K. B., Plaintiff,
v.
CITY OF VENICE, FLORIDA and KAREN RUSHING, Defendants.

          ORDER

          JAMES D. WHITTEMORE UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is Defendant City of Venice's Motion to Dismiss (Dkt. 12), Defendant Karen Rushing's Motion to Dismiss (Dkt. 14)[1], and Plaintiff's oppositions (Dkts. 13, 15). Upon consideration, the Motions (Dkts. 12, 14) are GRANTED in part.

         Factual Background

         In August 2017, Plaintiff K.B., then a minor under 18 years of age, was battered and sexually abused by an adult male in Venice, Sarasota County, Florida. (Dkt. 9, Am. Compl., at ¶ 4). She filed a complaint with the City of Venice Police Department detailing the assault and providing the police with her name, date of birth, address, and other personal identifying information. (Id. at ¶ 6). With this information, the City of Venice, “acting by and through its police department, ” investigated and arrested the adult male that K.B. alleged committed the assault. (Id. at ¶ 7).

         Following the arrest, the City of Venice Police Department provided the Clerk of the Circuit Court of Sarasota County, Karen E. Rushing, with a copy of the police officer's Probable Cause Affidavit. (Id. at ¶ 8). In this document, K.B.'s name, age, residence, and related personal information were unredacted. (Id.). And upon receiving the affidavit, Rushing published the document on the Clerk's public website in unredacted form. (Id. at ¶ 10). As a result, K.B. claims that she “was damaged and subject to humiliation and shame and mental distress when her name was published for viewing by the general public in connection with the [assault] . . . .” (Id. at ¶ 13).

         Procedural Background

         This action commenced when K.B. filed her civil complaint in the Circuit Court of the Twelfth Judicial Circuit, asserting two counts against Defendants City of Venice, Florida (“the City”), Karen E. Rushing, in her capacity as Clerk of the Circuit Court of Sarasota County, Florida, and Sarasota County, Florida. (Dkt. 1-1). In her original complaint, K.B. included a claim under 42 U.S.C. § 1983, alleging that the Defendants unlawfully failed to redact her identity and other personal identifiable information from the probable cause affidavit prior to its publication “in violation of the privacy protections afforded to child victims under 18 U.S.C. § 3509(d).” (Id. at ¶ 26). Defendants Karen E. Rushing and Sarasota County, Florida removed the action based on federal question jurisdiction, 28 U.S.C. § 1331. (Dkt. 1).

         In response to K.B.'s complaint, the City filed its Motion for a More Definite Statement. (Dkt. 5). In the Order granting the motion, it was noted that although K.B. “‘asserts a cause of action for the statutory tort, under 42 U.S.C. § 1983' for violations of [K.B.'s] civil right of privacy, . . . it is unclear whether she is asserting a substantive or procedural due process violation, or some other constitutional violation.” (Dkt. 8 at 2) (citing (Dkt. 7 at 6)). K.B. was granted leave to amend (Id. at 3), and subsequently amended her complaint, which now asserts six counts against the same three Defendants.[2] See (Dkt. 9).

         In Count I, K.B. brings a claim against the City “under and pursuant to 42 U.S.C. § 1983, for damages suffered by plaintiff caused by the City's deprivation, under the color of state law, of substantive rights and privileges secured to plaintiff by the laws of the United States of America.” (Id. at ¶ 1). Like the § 1983 claim she asserted in her original complaint, K.B.'s § 1983 claim in Count I of her Amended Complaint is based on the allegation that she “had a substantive right of privacy with regard to her identity and other personal information under and pursuant to 18 U.S.C. § 3509(d), and defendant City had a corresponding duty to protect [her] privacy in that regard.” (Id. at ¶ 11).

         In Count II, K.B. brings a state law negligence claim against the City, alleging that it breached its duty of confidentiality owed to her under 18 U.S.C. § 3509(d). (Id. at ¶¶ 17, 20-32). Specifically, she alleges that “[p]ursuant to 18 U.S.C. § 3509(d), defendant City had a duty to plaintiff to maintain confidentiality with regard to plaintiff's identity and other personal information when said defendant prepared the Probable Cause Affidavit and delivered it to the Clerk of the Circuit [C]ourt .” (Id. at ¶ 28).

         In Count III, K.B. brings an additional state law negligence claim against the City, alleging that “[p]ursuant to Florida Statutes, Sec. 794.024, defendant City had a duty to plaintiff to maintain confidentiality with regard to plaintiff's identity and other personal information when said defendant prepared the Probable Cause Affidavit and delivered it to the Clerk of the Circuit [C]ourt .” (Id. at ¶¶ 33, 44).

         In Count IV, K.B. re-alleges a § 1983 claim against Rushing, individually and in her capacity as Clerk of the Circuit Court of Sarasota County, Florida. (Id. at ¶ 49). Specifically, K.B. alleges that “defendant Clerk, acting under color of state law, deprived plaintiff of her substantive right of privacy of her identity and personal information, which right of privacy is secured to plaintiff under 18 U.S.C. § 3509(d).” (Id. at ¶ 60).

         And in Counts V and VI, K.B. re-asserts her negligence claim against Rushing, alleging that [she] violated the duty to maintain confidentiality afforded to K.B. under 18 U.S.C. § 3509(d), (Count V), and Fla. Stat. § 794.024, (Count VI). (Id. at ¶¶ 66-99).

         As outlined below, however, 18 U.S.C. § 3509(d) is not a valid basis for K.B.'s § 1983 claims, or her state law negligence claims, because neither Defendant could have violated the statute. Counts I, II, IV, and V are therefore due to be dismissed.

         Standard

         A complaint should contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This rule does not require detailed factual allegations, but it demands more than an unadorned, conclusory accusation of harm. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must “plead all facts establishing an entitlement to relief with more than ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action.'” Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6), the relevant question is whether the allegations are sufficient to allow the plaintiff to conduct discovery in an attempt to prove the allegations, not whether the plaintiff will ultimately prevail. See Jackam v. Hosp. Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579-80 (11th Cir. 1986).

         A complaint must be dismissed pursuant to Rule 12(b)(6) if the complaint does not plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 547. “[W]hen the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, ” a claim is plausible. Iqbal, 556 U.S. at 678. For the purposes of a motion to dismiss, all of the factual allegations contained in the complaint must be accepted as true. Id. But this tenet is “inapplicable to legal ...


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