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N.N v. Tunkhannock Area School District

July 8, 2011


The opinion of the court was delivered by: (judge Caputo)


This case presents the question of whether an action alleging an unreasonable search and seizure of a student's cell phone containing images protected by the First Amendment states a claim for equitable relief against county officials and a claim for damages against the county. Because it does, the defendants' motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) will be denied.

I. Background*fn1

At all relevant times, N.N. was a minor student at Tunkhannock Area High School. The high school had a policy requiring cellular phones to be turned off and stored in lockers at all times during the school day. The 2008-09 school handbook detailed the penalties for violating this policy. A first-time offender would have her cell phone confiscated and returned at the end of the day and would additionally serve a 90 minute Saturday detention. The second infraction would warrant a three-hour Saturday detention and return of the cell phone only when retrieved by the child's parent, and should a student violate the policy a third time, the student would face a one-day suspension and permanent ban from possessing a cell phone on school property.

Notwithstanding this policy, on January 23, 2009, N.N. placed a call from her cell phone while on school property. As the phone rang, but before the recipient had answered, teacher Melissa Sherman confiscated N.N.'s phone. Later that day, N.N. was paged over the public announcement system and told to report to the principal's office. After completing her math examination, she went to the principal's office.

When she arrived, she found the principal, Mr. Ellsworth, sitting at a table with the school nurse. He explained that the nurse was present because he felt that a woman should be in the room. Ellsworth then launched in to the reasons N.N. had been paged: Ellsworth had gone through her cell phone contents, discovered what he believed to be inappropriate photographs stored in the phone's memory, and had handed the phone over to law enforcement authorities. After expressing her outrage at what she felt was an intrusion into an intimate sphere, N.N. was suspended for three days.

As it turns out, N.N. had taken photographs of herself with her phone's built-in camera. In most of the photographs, N.N. is fully clothed, but several include N.N.'s exposed breasts, and one indistinctly reveals her pubic area. No photographs include N.N.'s genitalia. Aside from one photograph taken by a female friend, the photographs were taken by N.N. alone, and were intended for the sole consumption of herself and her long-term boyfriend. The photographs were taken off school property, were saved to the cell phone, were never emailed or uploaded to the internet, and were not shared with other students. To access the photographs, which are not immediately visible, school officials must have "clicked" on at least three "menu" selections.

Following N.N.'s meeting with Ellsworth, she and her mother reported to the Wyoming County District Attorney's Office to try to retrieve the cell phone on January 26, 2009. There, they met with Chief Detective David Ide. Ide explained that the phone was unavailable because it had been sent to a crime lab in Delaware. Ide asked N.N. to write and sign a statement he dictated. N.N. was not given a copy of the statement. Ide further stated that he had reviewed the photographs before the meeting, and told N.N.-after her mother had stepped away-that had she only waited until her eighteenth birthday, she could have submitted the photographs directly to Playboy magazine instead of getting in trouble. He concluded the conversation by suggesting that N.N. contact him, and told her "I'll get you your phone back, [N.N.]" while winking at her.

Shortly after this meeting, N.N., along with other students whose cell phones had been similarly searched, received a letter from George Skumanick, who at that time was the district attorney for Wyoming County. In this letter, Skumanick threatened to bring child felony pornography charges against those who failed to complete a re-education course on sexual violence and victimization.

Following receipt of this letter Skumanick held an informational meeting with the students whose phones had been confiscated by the school, as well as their parents, at the Wyoming County courthouse on February 12, 2009. Skumanick advised the parents that their children had engaged in criminal conduct and presented them with a stack of photographs that had been printed from the students' confiscated cell phones. Skumanick permitted the parents to view these pictures. Instead of creating a separate file for each student, Skumanick kept the pictures as a single stack of cards which he repeatedly flipped through while searching for a particular student's image, which included at least fifteen printed photographs of N.N.

Skumanick explained that he intended to charge the students who had taken "explicit" photographs of themselves, or possessed photographs of others, with child pornography unless they agreed to complete the sexual violence and victimization re-education course.

Finding herself caught between prosecution and taking the re-education course, N.N. opted for the latter. A few days before she attended the re-education course, N.N.'s cell phone was returned to her. It was then that she discovered that all images stored on her phone-including not only the photographs at issue, but family pictures as well-had been deleted.

To complete the re-education course, N.N. had to attend five class sessions, each lasting several hours, on various dates through May 6, 2009. N.N. felt out of place in a class intended for victims of sexual abuse and disagreed with much of the course philosophy. In fact, far from feeling like a victim of sexual abuse, N.N. felt victimized and distressed by the county's harassment and intrusion into her privacy. In addition to the emotional costs N.N. incurred, she had to miss several hours of work to attend the course, losing approximately $71.50 in wages, and was additionally charged an enrollment fee of approximately $100. Furthermore, the homework assigned for the re-education course took time away from her high school studies, and she was required to write papers on topics she found objectionable.

N.N. has never been charged with any crimes related to the photographs.

On May 20, 2010, N.N. filed the present action against the school district, Principal Ellsworth, former District Attorney Skumanick, Chief Detective Ide, present Wyoming County District Attorney Jeff Mitchell, Wyoming County, and ten unnamed John Doe defendants.

The school defendants were voluntarily dismissed from the case. There are two claims against the remaining defendants. First, N.N. seeks prospective equitable relief against the county officials based on their alleged continued possession of the photographs depicting N.N., ...

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