David Callahan v. Cheryl York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID CALLAHAN, and HEINE )

HEININGER, Individually, and on Behalf)

of All Similarly Situated Persons, )

) No. 18 C 6276

Plaintiffs, )

) Chief Judge Rubén Castillo

v. )

)

CHERYL YORK, ROBERT BERLIN, in _ }

his Official Capacity as DuPage County }

State’s Attorney, and The COUNTY OF )

DUPAGE, }

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs David Callahan (“Callahan”) and Heine Heininger (“Heininger”) filed this

putative class action against the DuPage County State’s Attorney’s Office investigator Cheryl

York, DuPage County State’s Attorney Robert Berlin (“Berlin”) in his official capacity, and the

County of DuPage, following York’s seizure of certain psychotherapy records. Before the Court

is Defendants’ Motion to Dismiss. (R. 10, Defs.’ Mot.) For the reasons stated below, the motion

is granted in part and denied in part.

BACKGROUND

During 2015-16, Callahan and Heininger were patients of psychotherapist Robert

Moylan. (R. 1, Compl. { 8.) Among other things, Moylan provided court-ordered counseling and

therapy services to people who plead guilty to and/or were convicted of alcohol-related driving

offenses. Ud. § 11.) Plaintiffs allege that on or about September 14, 2016, York knowingly,

maliciously, and falsely stated that Moylan’s patients were not attending their mandatory therapy

sessions and that Moylan was falsifying documents claiming otherwise. (/d. §[ 12-14.) Based

upon these false representations, Plaintiffs say, a search warrant was issued, permitting York to

seize certain of Moylan’s business records. (/d. 4 15.) When York executed the warrant,

however, she not only seized Moylan’s business records, but also the confidential therapy notes

and patient files of hundreds of Moylan’s patients. (/d. 4 18.) Defendants allegedly knew that no

notice had been given to Moylan or his patients in advance of the seizure, and that no patient had

consented to disclosure of their confidential patient-therapist communications. (id. J] 20, 22.)

Claiming a violation of their right to privacy in the patient-therapist records, Plaintiffs filed this

action on behalf of all of Moylan’s affected patients. (/d. 17, 27.)

LEGAL STANDARD

On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual

allegations of the complaint, drawing all possible inferences in the plaintiff's favor. Vesely v.

Armstlist LLC, 762 F.3d 661, 664 (7th Cir. 2014). “[A] complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations,” but it must contain “enough facts

to state a claim for relief that is plausible on its face.” Bell At. Corp. v. Twombly, 550 U.S. 544,

555, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “In

reviewing the sufficiency of a complaint under the plausibility standard, [courts must] accept the

well-pleaded facts in the complaint as true, but . . . need not accept as true legal conclusions, or

threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements.” Alam v, Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir, 2013) (internal

quotation omitted).

ANALYSIS

Plaintiffs seek damages against York for claimed violations of the Fourth Amendment

and the Due Process Clause of the Fourteenth Amendment (Count J), injunctive relief against

York and Berlin in the form of return of the records (Count ID), and indemnification from Berlin

and the County of DuPage (Count II). (R. 1, Compl. ff 34-47.) Defendants move to dismiss the

complaint in its entirety, arguing: (1) the Fourth Amendment claim fails because Plaintiffs allege

that the records were not in their possession but in the possession of Moylan; (2) the substantive

Due Process claim fails because it is premised solely on the records seizure for which a Fourth

Amendment analysis controls; (3) qualified immunity protects York because no Fourth

Amendment or Due Process right was violated or had been clearly established as to

psychotherapy records at the time of their seizure; (4) Plaintiffs fail to state the elements of an

official capacity claim against Berlin; (5) the injunctive relief claim fails for lack of standing;

and (6) without the substantive claims, the indemnification claim necessarily fails. (R. 10, Defs.’

Mot.) This Court addresses each argument in turn.

I. Fourth Amendment Claim

Defendants argue that Plaintiffs’ Fourth Amendment claim is precluded by the third-party

doctrine emanating from United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland,

442 U.S. 735 (1979), that information voluntarily relinquished to a third party is not protected

under the Fourth Amendment. (R. 10, Defs.’ Mot. at 3-4.) According to Defendants, because

Plaintiffs plead that the records relating to their counseling were seized from Moylan’s

possession and Plaintiffs do not piead they had not consented to his possession, Plaintiffs could

not have had any reasonable expectation of privacy or property interest in them. (/d. at 4.)

Plaintiffs reject application of the third-party doctrine here, arguing it is based on a stale Fourth

Amendment analysis grounded in property rights and not the more currently employed privacy-

based analysis. (R. 16, Pls.’ Resp. at 3-4). According to Plaintiffs, their expectation of privacy in

the records held by Moylan is reasonable, and is protected not only by the Fourth Amendment,

but also by federai and state law. (R. 16, Pls.’ Resp. at 6.) .

As Defendants observe, TA] person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties,” even “if the information is revealed on the

assumption that it will be used for a limited purpose and the confidence placed in the third party

will not be betrayed.” Smith, 442 U.S. at 743-44 (citing Miller, 425 U.S. at 442-44)).

Accordingly, in filler, the Court found no reasonable expectation of privacy in the contents of

checks, deposit slips, and financial statements used in commercial transactions since they

reflected “information voluntarily conveyed to the banks and exposed to their employees in the

ordinary course of business.” Miller, 425 U.S, at 443. Likewise, in Smith, the Court found no

reasonable expectation of privacy in information gathered from a device which recorded

numbers dialed on a telephone but not whether a call was completed or the contents of any

conversation. Smith, 442 U.S. at 736 n.1, 745. Under these authorities, Defendants say, Plaintiffs

could have no reasonable expectation of privacy in the information they voluntarily relinquished

to Moylan, (R. 10, Defs.’ Mot. at 3-4.)

The facts alleged in this case, however, are far different from those at issue in Miller and

Smith, and Defendants overlook a fundamental portion of their analysis. While “the third-party

doctrine partly stems from the notion that an individual has a reduced expectation of privacy in

information knowingly shared with another,” it is clear that the nature of the particular

information sought must also be considered in determining whether there is a legitimate

expectation of privacy. Carpenter v. U.S., 138 S. Ct. 2206, 2219 (2018). In Miller, 425 U.S. at

443, the nature of the records confirmed Miller’s timited expectation of privacy, since checks

and bank statements are used in the ordinary course of business; in Smith, 442 U.S. at 745, the

fact that telephone companies routinely use telephone numbers for various business purposes

assured the Court that any actual expectation of privacy in the numbers people dialed was

doubtful.

To the contrary here, Plaintiffs alleged a property interest in their psychotherapy records,

and the records are not of the sort that suggest a reduced expectation of privacy. As Plaintiffs

allege, they expected their confidential psychotherapy records to remain private and the

reasonableness of that expectation is supported by the protection of such records found both in

federal and state law. (R. 1, Compl. { 10.) Moreover, the U.S. Court of Appeals for the Seventh

Circuit has long since recognized a qualified constitutional right to the confidentiality of medical

records and medical communications. See, e.g., Anderson v. Romero, 72 F.3d 518, 522 (7th Cir.

1995) (surveying constitutional law in evaluating whether prisoner’s right to confidentiality of

medical records was clearly established at time). Further, as Plaintiffs correctly note, the

Supreme Court has found an expectation of privacy in one’s medical records reasonable. See

Ferguson vy. City of Charleston, 532 U.S. 67, 78 (2001) (reversing judgment for defendants on

claim that state hospital’s disclosure of drug test results to law enforcement violated Fourth

Amendment). As the Court explained, “The reasonable expectation of privacy enjoyed by the

typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not

be shared with nonmedical personnel without her consent.” /d., 532 U.S. at 78, This rationale

applies with equal force here.

For these reasons, the motion is denied as to the Fourth Amendment claim contained in

Count I.

IL. Substantive Due Process Claim

Defendants also seek to dismiss Count I to the extent it is premised on a claimed violation

of substantive due process. According to Defendants, such a claim must fail because it is based

solely on the seizure of records for which a Fourth Amendment analysis controls. (R. 10, Defs.’

Mot. at 4-6.) Plaintiffs argue in opposition that they have adequately stated a due process claim

based on their asserted right to privacy in therapy notes, and their interest in avoiding disclosure

of personal matters. (R. 16, Pls.’ Resp. at 8.) Because therapy notes are diagnostic in nature and

relate to medical conditions including alcoholism and drug abuse, Plaintiffs argue, they have

stated a substantive due process claim arising from York’s seizure of that information. (/d.)

It is well settled, however, that “substantive due process may not be called upon when a

specific constitutional provision . . . protects the right allegedly infringed upon.” Doe v. Heck,

327 F.3d 492, 518 n. 23 (7th Cir. 2003) (child’s constitutional claim based on seizure from home

is analyzed under Fourth Amendment not substantive due process unless it is alleged that other

conduct interfered with parent-child relationship); Brokaw v. Mercer Cnty., 235 F.3d 1000,

1017-18 (7th Cir. 2000) (same). The Supreme Court has repeatedly cautioned lower courts

against applying more general due process principles when a specific constitutional provision

applies. See Albright y. Oliver, 510 U.S. 266, 273 (1994) (“Where a particular Amendment

provides an explicit textual source of constitutional protection against a particular sort of

government behavior, that Amendment, not the more generalized notion of

‘substantive due process,’ must be the guide for analyzing these claims.” (citation and internal

quotation marks omitted)). Plaintiffs’ argument notwithstanding, because their claim is based on

the seizure of psychotherapy records and not some additional act alleged to have infringed upon

a claimed privacy right, a Fourth Amendment analysis controls, Accordingly, to the extent Count

1 is based on substantive due process, it is dismissed.

UL = Qualified Immunity

Based largely on their assertion that the seizure violated no constitutional right,

Defendants also argue York is entitled to qualified immunity, (R. 10, Defs.’ Mot. at 6-7.) Even if

a constitutional right had been violated, they continue, qualified immunity nevertheless applies

since any right as it relates to Plaintiffs’ psychotherapy records was not clearly established at the

time of the records seizure. (/d. at 6.) According to Plaintiffs, however, York is not protected by

qualified immunity since a right to privacy in psychotherapy records, like other medical records,

was well established long before the seizure at issue here. (R. 16, Pls.’ Resp. at 8.)

The Seventh Circuit has neted that “a complaint is generally not dismissed under Rule

12(b}(6) on qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.

2001) (noting that immunity defense usualiy depends on facts, and that plaintiff need not plead in

anticipation to overcome it). In determining whether qualified immunity applies, a court

- considers “(1) whether the plaintiff's allegations make out a deprivation of a constitutional right,

and (2) whether the right at issue was clearly established at the time of the defendant’s alleged

misconduct.” Siliven v. Ind. Dep’t of Child Servs., 635 F.3d 921, 925-26 (7th Cir. 2011)

{citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Because the Court has already

determined that Plaintiffs have alleged a deprivation of a constitutional right, the remaining issue

to be decided is whether the right was clearly established.

According to Defendants, the Seventh Circuit’s decision in Young v. Murphy, 90 F. 3d

1225 (7th Cir. 1996), prevents Plaintiffs from making the requisite showing. (R. 10, Defs.’ Mot.

at 6-7.) In Young, the court found that qualified immunity shielded investigators who had

,

searched a patient’s nursing home and hospital records from a Fourth Amendment claim because

the patient had not alleged any possessory interest in the records nor any other basis to conclude

the asserted right had been clearly established at the time. See id. at 1236. To the contrary here,

however, Plaintiffs allege both a possessory interest and an expectation of privacy in their

psychotherapy records, and the reasonableness of that expectation is supported by the Health

Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936

(1996), the Iflinois Mental Health Developmental Disabilities Confidentiality Act, 740 ILL.

Comp. STAT, 110 ef seg., and the Supreme Court’s decision in Ferguson. (R. 1, Compl. { 9-10,

16.)

Accordingly, because it is not clear at this stage that the state of the law was such that

York is entitled to qualified immunity, the motion to dismiss on this basis is denied.

IV. _Injunctive Relief Claim and Official Capacity Claims Against Berlin

Defendants seek dismissal of Plaintiffs’ injunctive relief claim for lack of standing and

Plaintiffs’ official capacity claims against Berlin for failure to plead the requisite elements under

Monell v, Department of Social Services of New York, 436 U.S. 658 (1978). (Defs.’ Mot. at 7-8.)

Plaintiffs do not respond in opposition to either argument and have accordingly forfeited the

claims. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (“[A] litigant effectively

abandons the litigation by not responding to alleged deficiencies in a motion to dismiss.”). In any

event, the Court agrees with Defendants on both points. Plaintiffs’ injunctive relief claim fails

since they have not alleged any real and immediate threatened injury, but only a past one, See

Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017). Similarly, Plaintiffs’ official

capacity claims against Berlin fail since Plaintiffs fail to allege Berlin had final policymaking

authority or a “true municipal policy at issue, not a random life event.” (R. 10, Defs.’ Mot. at 7

(citing Liska v. Dart, 60 F. Supp. 3d 889 (N.D. Til. 2014)).) Accordingly, the injunctive relief

claim (Count I) and the claims against Berlin (Counts H and IIT) are dismissed.

Indemnification

Finally, Defendants move to dismiss Plaintiffs’ indemnification claim on the sole basis

that it necessarily fails if the substantive claims fail. (R. 10, Defs.’ Mot. at 9.) Because the

motion is denied as to Plaintiffs’ Fourth Amendment claim therefore, the motion is likewise

denied as to the claim for indemnification (Count Ii).

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (R. 10) is GRANTED as to the

substantive due process claim in Count I, the injunctive relief claim in Count II, and the official

capacity claims against Berlin in Counts II and ILI. The motion is DENIED as to the remainder.

Plaintiffs are given until January 29, 2019 to file an amended complaint consistent with this

order. A status hearing is set for January 30, 2019 at 9:45 a.m. The parties are DIRECTED to

exhaust all settlement possibilities prior to the status hearing.

Chief Judge Rubén Castillo

United States District Court

Dated: December 21, 2018