United States District Court, M.D. Florida, Tampa Division
K. B., Plaintiff,
CITY OF VENICE, FLORIDA and KAREN RUSHING, Defendants.
D. WHITTEMORE UNITED STATES DISTRICT JUDGE.
THE COURT is Defendant City of Venice's Motion
to Dismiss (Dkt. 12), Defendant Karen Rushing's Motion to
Dismiss (Dkt. 14), and Plaintiff's oppositions (Dkts.
13, 15). Upon consideration, the Motions (Dkts. 12, 14) are
GRANTED in part.
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).
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).
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).
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. See
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
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).
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).
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
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).
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.
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).
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 ...