John Doe, an employee of the Southeastern Pennsylvania Transportation Authority ("SEPTA"), brings the present action for violations of his civil rights by his employer and Judith Pierce, a SEPTA official. This action arises from an incident in late 1992 in which Pierce learned that Doe was being treated for HIV-related illness. She learned this inadvertently, through reviewing information on the utilization of SEPTA's prescription benefit plan in connection with her position at SEPTA. Doe's amended eighteen-count complaint asserted various claims for civil rights violations, employment discrimination and state law torts. On October 18, 1994, the court granted Doe's motion to amend the complaint to withdraw counts I and V through XVIII. Presently before the court is the defendants' motion for summary judgment on the remaining claims, Counts II, III and IV, which allege separate claims under 42 U.S.C. § 1983 (1988) for violations of Doe's constitutional right to privacy, his right to procedural due process under the Fourteenth Amendment and his right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments. The court held oral argument on this motion on November 4, 1994, and on November 22, 1994, issued an order granting defendants' motion as to Count III and denying it as to Counts II and IV, with this memorandum to follow.
In accordance with the following discussion, the court concludes that Count II presents genuine issues of material fact regarding Pierce's purpose in showing the report to another SEPTA official and regarding SEPTA's policies and practices regarding the confidentiality of prescription benefits information; therefore, the court denied defendants' motion for summary judgment as to the constitutional right to privacy claim (Count II). The court further finds that Doe's allegations do not fairly present any liberty or property interest of which defendants' actions have deprived him; therefore, the court granted defendants' motion for summary judgment as to the procedural due process claim (Count III). Lastly, the court determines that whether defendants intruded upon Doe's reasonable expectation of privacy in his medical information presents a genuine issue of material fact; therefore, the court denied defendants' motion for summary judgment as to the Fourth Amendment claim (Count IV), without prejudice to defendants' right to raise such issues as standing, plain view and qualified immunity at trial.
In September of 1992, SEPTA changed vendors for its employee prescription benefit plan. (Aufschauer Dep. at 66.) Sometime in September of 1992, Doe filled his prescriptions for medications to combat his HIV infection at a Rite Aid pharmacy through that plan. In November, 1992, Rite Aid supplied SEPTA with its standard series of reports on employee usage of the prescription benefit plan, as it was obliged to do by contract. In connection with reviewing the new system, Pierce, then the Chief Administrative Officer for SEPTA, and Jacob Aufschauer, Manager of Benefits Planning and Administration, reviewed this report. (Pierce Dep. at 165-68 & Aufschauer Dep. at 93-94.) Their review had at least two goals: to evaluate usefulness of the form of the report for auditing prescription plan utilization, and to audit plan usage for suspected fraud or abuse and for possible cost reductions. (See Pierce Dep. at 167-68.) This report, probably one organized in terms of the expense of the total prescriptions filled by each employee, listed Doe's name, his medications and their prices. (Id. at 157.) Pierce, unfamiliar with the names of the drugs listed, called Dr. Louis van de Beek, head of SEPTA's medical department, on a speaker phone, to determine the uses of these medications. (Id. at 186-92, 206.) When they learned that at least one of the medications listed as having been purchased by Doe was used exclusively to treat HIV infection, Pierce and Aufschauer learned Doe's medical condition. (Id. at 201-04, 211-12.)
Although Doe states that a third party told him that Pierce disclosed his condition to others, the deposition excerpts presently before the court demonstrate only that Pierce showed the page of the report with Doe's name and medications on it to Dr. Richard Press, Doe's direct supervisor. (Id. at 227.) Pierce asked Press whether he would be able to audit the prescription plan usage from the information on the report. (Id.) Press, uncomfortable with the contents of the report, brought its existence and contents to the attention of SEPTA's General Counsel. (Kilcur Dep. at 31-35.) After his conversation with Pierce, van de Beek formed the impression that the list of drugs Pierce had asked about came from Doe's prescription record.
He informed Doe of his suspicion. (van de Beek Dep. at 50.) Doe was extremely distressed to learn that his medical condition had been discovered by Pierce and possibly disclosed by her to others. (Doe Dep. at 156.) This suit followed.
Under Federal Rule of Civil Procedure 56(c), summary judgment "shall be rendered forthwith 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 judgment as a matter of law." Accord Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). The moving party need not produce evidence to disprove the non-moving party's claim but does carry the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The facts must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact is to be resolved in favor of the non-moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). In turn, the non-moving party cannot rely on the allegations contained in the complaint. Instead, the non-moving party must offer specific facts contradicting the facts averred by the movant which indicate that there is no genuine issue for trial. Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990).
The remaining three counts of Doe's complaint assert violations of his constitutional rights using the mechanism of 42 U.S.C. § 1983. Section 1983 provides 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. It is axiomatic that "section 1983 does not in and of itself create or secure any substantive rights [but rather] merely authorizes a cause of action when rights secured by another source have been infringed." Gonzalez v. Young, 560 F.2d 160 (3d Cir. 1977) (emphasis in original), aff'd, 441 U.S. 600, 60 L. Ed. 2d 508, 99 S. Ct. 1905 (1979). The parties do not dispute that SEPTA is a "person" subject to suit under § 1983 and that Pierce was acting "under color of state law" in reviewing the prescription information. Assuming this, a § 1983 cause of action has two elements: (1) a federally protected right is implicated and (2) the defendant's actions caused the plaintiff to be deprived of that right. See Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989) (citing Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986)). Analysis of a purported § 1983 claim therefore begins with identification of the specific federal right allegedly infringed. Graham v. Connor, 490 U.S. 386, 394, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989); Baker v. McCollan, 443 U.S. 137, 140, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). Doe's remaining three counts allege infringement of three separate constitutional provisions: the constitutional right to privacy, the due process clause of the Fourteenth Amendment and the Fourth Amendment.
Count II: Constitutional Right to Privacy
Doe alleges that Pierce's actions violated "the right most valued by civilized men," "the right to be let alone." Olmstead v. United States, 277 U.S. 438, 478, 72 L. Ed. 944, 48 S. Ct. 564 (1928) (Brandeis, J., dissenting). In Whalen v. Roe, 429 U.S. 589, 598-99, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977), the Court referred to a series of cases recognizing a constitutional right to privacy and further noted that these cases broke down into two distinct groups, protecting two different kinds of interests. The Court recognized that one interest protected by the constitutional right to privacy is "the individual interest in avoiding disclosure of personal matters." Id.; accord Fraternal Order of Police, Lodge 5 v. City of Philadelphia, 812 F.2d 105, 109 (3d Cir. 1987) (F.O.P.) (quoting Whalen); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980) (also quoting Whalen). Where government intrusion into or disclosure of private matters is alleged, the Third Circuit has indicated that a balancing test must be applied to determine whether the government's interest in access to the information outweighs the individual's interest in keeping the matter private. F.O.P., 812 F.2d at 110 (citing Trade Waste Management Ass'n v. Hughey, 780 F.2d 221, 234 (3d Cir. 1984) and United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980)). In Westinghouse, the Third Circuit enunciated a list of seven factors to be considered in this balancing test:
The factors which should be considered in deciding whether an intrusion into an individual's privacy is justified are the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.