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DOE v. County of Fayette

United States District Court, Western District of Pennsylvania

October 30, 2014

DOE 1, et al, Plaintiffs,
COUNTY OF FAYETTE, et al, Defendants.



Before the Court are the Motions to Dismiss Plaintiffs[1] First Amended Complaint filed by Defendants County of Fayette and Vince Zapotosky in his individual capacity, ECF No. 35, and Angela Zimmerlink in her individual capacity, ECF No. 37, along with filings in support and in opposition thereto, ECF Nos. 36; 38; 39; 40; 41; 42; 45; 48. Based on the Court's consideration of the papers filed and the matters presented at the hearing/argument on October 9, 2014 in open court as to the Defendants' Motions to Dismiss, the Court will grant the Motion to Dismiss of Defendants County of Fayette and Zapotosky and dismiss the claims against those Defendants with prejudice, but will deny Defendant Zimmerlink's Motion to Dismiss.


This Court previously granted Defendants' Motions to Dismiss the Complaint in its entirety by written Memorandum Opinion and Order, but gave Plaintiff leave to amend with regard to her alleged claims against Defendant County of Fayette and Defendant Zimmerlink. ECF No. 25. In the First Amended Complaint ("FAC"), Jane Doe 2 re-asserted her prior claims against Defendants County of Fayette and Fayette County Commissioner Zimmerlink, and also added claims against her fellow Commissioner, Vince Zapotosky, as a named Defendant. ECF No. 29.

According to facts alleged in the FAC, which the Court must assume to be true, Jane Doe 1 spoke to Commissioner Zapotosky in person on or about June 26, 2012 regarding her belief that Fayette County Children and Youth Services ("CYS") had for years inadequately protected children suspected to be victims of physical and sexual abuse. Id. at ¶11. Commissioner Zapotosky instructed Jane Doe 1 to email her concerns to him before he could commence an investigation into her allegations. Id. at 14. Jane Doe 1 accordingly sent an email solely to Commissioner Zapotosky documenting several instances of child abuse, many in the somewhat distant past, which she asserted CYS knew about and failed to remedy. Id. at 15. Jane Doe 2, the Plaintiff in this case and Jane Doe I's adopted daughter, was among the children specifically mentioned in the email as having been "physically and sexually assaulted over and over." Id. at 19; ECF No. 29-1, at 8. In her email, Jane Doe 1 explicitly requested that Commissioner Zapotosky investigate her allegations. ECF No. 29, at 18; see ECF No. 29-1, at 9 ("I am begging you to look into both of these cases and find out why things happened the way they did. Please hold CYS accountable for their ignorance and incompetency [sic]."). Her email also specifically suggested that changes in the law might be necessary to accomplish her goals. See ECF No. 29-1, at 9 ("[T]he laws that they [who work for CYS] hide behind must be changed!").

The FAC now avers that despite this request for government action, Jane Doe 1 expected Commissioner Zapotosky to keep the sensitive contents of the email confidential, even though the email does not say that. ECF No. 29, at 20; see generally ECF No. 29-1. Commissioner Zapotosky forwarded the email to, and requested a meeting with, various government officials including one other Fayette County Commissioner, [2] the CYS Director, the CYS Solicitor, the County District Attorney, and "various legislators, staffers, and administrative assistants." ECF No. 29, at 16. Additional emails were then exchanged amongst Jane Doe 1 and those others to schedule a meeting to discuss the allegations.[3] Id. at 22.

On or about August 1, 2012, Commissioner Zimmerlink, who was not on the original email chain, allegedly forwarded a copy of Ms. Doe's email to reporters at the Herald Standard and Tribune Review. ECF No. 29, at 23; ECF No. 29-1, at 2-5. The newspapers ultimately did not publish a story or otherwise disseminate the sensitive subject matter to the public. ECF No. 29, at ¶¶ 24-25.


When assessing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), courts must conduct the three-part inquiry of "(1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Courts must accept the veracity of all well-pleaded facts, but need not credit legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 129 S, Ct. 1937, 1949 (2009)). Courts "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief" Id. at 211 (quoting Iqbal, 129 S.Ct. at 1950). '"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949). In sum, the allegations of a valid complaint must "raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]." Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).


Jane Doe 2 brings this case under 42 U.S.C. § 1983, which requires plaintiffs to allege a deprivation of a federal right caused by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Therefore, courts considering § 1983 claims must first determine whether any federal right has in fact been violated.[4] Nicini v. Morra, 212 F.3d 798, 806 (2000) (en banc). With regard to the alleged deprivation of a right, Jane Doe 2 asserts in her FAC that Defendants violated her constitutional right to privacy, caused unreasonable publicity of her private life, and violated her substantive due process rights, alleging each violation under the Fourth, Ninth, and Fourteenth Amendments.[5] ECF No. 29, at 40.

A. Constitutional Right to Privacy

There are two types of privacy interests protected by the Fourteenth Amendment: one in the "individual interest in avoiding disclosure of personal matters, " and the second in the "interest in independence in making certain kinds of important decisions."[6] Doe v. Luzerne Cnty, 660 F.3d 169, 175 (3d Cir. 2011) (internal quotation marks and citations omitted). This case deals solely with the former interest in avoiding disclosure of intimate matters[7] Alleged violations of that right are assessed through a two-step test. First, courts assess "whether [the information] is within an individual's reasonable expectations of confidentiality. The more intimate or personal the information, the more justified is the expectation that it will not be subject to public scrutiny." C.N. v. Ridgewood Bd. of Educ, 430 F.3d 159, 179 (3d Cir. 2005) (quoting Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 112 (3d Cir.1987)). Second, courts balance the privacy interest against the public or governmental interest in disclosure.[8] Id. at 179-80. Our Circuit has also explained that the determination is necessaruy fact-intensive and context-specific, and "unfortunately, bright lines generally cannot be drawn." Doe, 660 F.3d at 176. Notably, the constitutional right to privacy is not limited to adults, but covers minors as well. C.N., 430 F.3d at 179.

With regard to the first part of the test, the Third Circuit has not squarely addressed the issue at hand of whether a minor has a constitutional right to privacy in a detailed email identifying her by name and alleging she has been sexually and physically abused. However, acknowledging that the right to privacy "protects against public disclosure [of] only highly personal matters representing the most intimate aspects of human affairs, " Doe, 660 F.3d at 176 (internal citations omitted), Circuit precedent recognizes three general categories of information as protected under the constitutional right to privacy: medical records, financial information, and information relating to sexuality. Malleus, 641 F.3d at 565-66 (collecting cases). Moreover, "[t]he cases in which a disclosure-based privacy violation has been found involve situations where there was either actual idendfication or the disclosure of identifying information such as would allow the individual to be identified and ultimately connected to his or her private information." C.N., 430 F.3d at 180. Not only does the information at issue in this case pertain to a minor's sexuality, but the email specifically identifies Jane Doe 2, thereby connecting her to the private information. The Court therefore concludes that Jane Doe 2 had a privacy interest in the sensitive information, notably her identity and the allegation that she is a victim of sexual abuse, contained in the email.

Defendants cite Scheetz v. The Morning Call, Inc., 946 F.2d 202 (3d Cir. 1991), to support their argument that Jane Doe 2 can have no constitutionally protected right to information divulged on her behalf as part of a request to investigate allegations of abuse. ECF No. 36, at 14-15; ECF No. 38, at 5-6. While the court held in Scheetz that plaintiffs had no reasonable expectation of privacy in statements of adult domestic violence made to the police and included in a police report, id. at 207, that case is distinguishable. First, criminal and police reports are "inherently public" records. Nunez v. Packman, 578 F.3d 228, 232 (3d Cir.2009). As the Scheetz court explained, the fact that police did not need the complaining witness's permission to bring charges meant that any information disclosed could ultimately wind up as part of the public record. Scheetz, 946 F.2d at 207. By contrast, an email containing sensitive information about instances of child abuse sent to a county commissioner is not inherently of a public nature, even when sent to a government official so that he might investigate the situation.[9]

Second, as Defendants readily admit, Scheetz dealt with allegations of domestic violence made by an adult on her own behalf Here, Ms. Doe is alleging impermissible dissemination of sexual abuse of a minor on behalf of her child. The Court agrees with Ms. Doe to the extent that the law simply treats children differently when it comes to maintaining the confidentiality of their identities, whatever the context. Cf. Fed. R. Civ. P. 5.2(a) (filings with the court including the name of an individual known to be a minor warrants identification solely by that minor's initials); Winkler v.Grant, 37.0 F.App'x 145, 147 (2d Cir. 2010) (finding abuse of discretion in the district court's failure to protect the identities of minors ...

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