Taylor v. Capital One Financial Corp

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

DOMENEQUE D. TAYLOR PLAINTIFF

v. CASE NO. 4:23-CV-00581-JM

CAPITAL ONE FINANCIAL CORP., et al. DEFENDANTS

ORDER

Domeneque Taylor’s motion to proceed in forma pauperis [Doc. No. 2] is granted

because she reports no assets and lives on disability income. See Doc. No. 1. Taylor’s

motion to file her complaint and exhibits under seal [Doc. No. 1] is denied as to the

complaint and granted as to Exhibits 1–4 because the exhibits include personally

identifiable information as well as Arkansas Crime Information Center (“ACIC”) records.

The Clerk is directed to keep the exhibits to Taylor’s complaint sealed but to unseal the

rest of the docket. Because she is proceeding pro se, Taylor’s complaint is subject to

screening. Her complaint must be dismissed because even liberally construed, it fails to

state a claim.

I. BACKGROUND

On June 7, 2023, Taylor discovered that her social security number (“SSN”)

appeared on an exhibit in a debt collection case in Pulaski County Circuit Court that was

accessible by the public on the Arkansas Judiciary’s online case management database,

Court Connect (now called Case Search). Compl. at 2, 14, Doc. No. 2. Capital One,

represented by private attorneys at Gamache & Myers P.C., had brought the case against

Taylor to collect an alleged $601.70 debt. Id. at 14, Ex. 1. After discovering her SSN

was publicly available, Taylor contacted the Pulaski County Circuit Court, which had the

document removed from the website. Id. at 6. Taylor also contacted Gamache & Myers

for an explanation and was told her case file could not be located. Id. at 13.

Taylor alleges that her SSN has been “in possession of attorney’s (sic), creditors,

citizens, courts, debt collection agencies, police officer’s (sic), clerks, counties, and the

state and any member of the public who knew her first name and last name, date of birth

and who is computer literate enough to operate the AOC PUBLIC Court Connect.” Id. at

8. She maintains that between October 2008 and July 2022, various unauthorized

purchases were made using her name and SSN including “a car loan, numerous student

loans, internet, phone & utility bill accounts.” Compl. at 4. Taylor generally alleges that

Defendants played a role in posting her SSN to Arkansas’s online case management

database, or otherwise mishandled and misappropriated her SSN. She is suing numerous

defendants on a variety of claims.

First, she has sued the Administrative Office of the Courts (“AOC”), the City of

Little Rock (“the City”); the Little Rock Police Department (“LRPD”); the Little Rock

City Attorney’s Office (“City Attorney”), Pulaski County, and AOC Director Marty

Sullivan, LRPD Officer Antonio McNutt, and Pulaski County Circuit Clerk Pat O’Brien

in their individual capacities under 42 U.S.C. §1983 alleging a violation of her Fourteenth

Amendment right to due process. Compl. at 59–63.

Second, she has sued the above entities and individuals along with Saline County,

Saline County Circuit Court, and former Saline County Circuit Clerk Doug Kidd in his

individual capacity for violations of the Social Security Act, 42 U.S.C §405(c)(2)(C)(viii)

and the Privacy Act of 1974, 5 U.S.C. § 552a. Compl. at 47–48, 63–65.

Third, she has made a claim for invasion of privacy and wrongful disclosure of her

SSN against Gamache & Myers, private attorneys Mark A. Waller, Donald C. Tippet, and

Drew H. Davis, and Capital One Financial Corp., Capital One, N.A., and Capital One

Bank (USA), N.A. (collectively “Capital One”) under the Identify Theft and Assumption

Deference Act, 18 U.S.C. §1028. Compl. at 71–73.

Finally, Taylor has made various state law statutory (Ark. Code Ann. § 23-79-

210(a)(1)) and tort (negligence and invasion of privacy) claims against Pulaski County,

Pulaski County Circuit Court, Saline County Circuit Court, the AOC, the City, the LRPD,

Officer McNutt, the City Attorney, Gamache & Myers, and Capital One. Compl. at 47–

48, 65–73. Taylor seeks monetary damages, including punitive damages, for severe

emotional distress.

II. LEGAL STANDARD

Because Taylor is proceeding pro se, her pleadings must be screened. 28 U.S.C. §

1915(e)(2). A pro se plaintiff must set forth enough factual allegations to “nudge [ ] their

claims across the line from conceivable to plausible,” or “their complaint must be

dismissed” for failing to state a claim upon which relief can be granted. Bell Atl Corp.

v. Twombly, 550 U.S. 544, 569–70 (2007). Even self-represented plaintiffs must allege

facts that, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623

F.2d 1282, 1286 (8th Cir. 1980). While this Court construes pro se complaints liberally,

Taylor must at the very least allege some facts supporting a claim that can be heard by

this Court. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

III. DISCUSSION

Even liberally construing Taylor’s complaint, it must be dismissed because she has

failed to state a claim.

A. 42 U.S.C. § 1983

Taylor’s §1983 claims fail to state a claim. To establish a §1983 claim, she must

allege that (1) the defendants acted under color of state law and (2) their alleged wrongful

conduct deprived her of a constitutionally protected federal right. 42 U.S.C. §1983; West

v. Atkins, 487 U.S. 42, 48 (1988). Taylor may not bring a §1983 claim with respect to the

Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii) or the Privacy Act of 1974, 5 U.S.C. §

552a because she does not suggest that either creates a private cause of action for

monetary damages. Her Fourteenth Amendment substantive due process claims fail

because some of the defendants have immunity, and she has not adequately pleaded her

claims as to the rest.

Taylor contends that defendants AOC, City of Little Rock, the LRPD, Pulaski

County, Officer McNutt, Clerk O’Brien, Director Sullivan, and the City Attorney, acting

under color of state law, violated her due process right to control the disclosure,

publication, and submission of her SSN. Compl. at 60. Specifically, she alleges that

Officer McNutt, the LRPD, and Pulaski County Circuit Court personnel had “possession

or knowledge of [her] full SSN while in uniform, on duty, and knowingly failed to

safeguard the disclosure of Taylor’s SSN to the Public.” Id. She also alleges that Officer

McNutt obtained her SSN from the public Court Connect website, disclosed it in “his

alleged ACIC/ATLAS report,” and ran that report without her consent on the night she

was arrested. Id. Taylor further alleges that the Pulaski County Circuit Court, AOC, the

City, and the LRPD failed to establish a policy to safeguard the disclosure of her SSN;

failed to train, supervise, investigate, or discipline employees who unnecessarily

disclosed an SSN to the public; and knew or should have known that public disclosure of

her SSN was a violation of established law. Id. at 61–62. Finally, she alleges that

multiple members of the Pulaski County Circuit Court and the LRPD shared, possessed,

disclosed, obtained, published, or reviewed her SSN between 2009 and 2023. Id. at 63.

AOC is immune from liability because it is a state agency and Taylor seeks only

money damages. See Monroe v. Ark. St. Univ., 495 F.3d 591, 594 (8th Cir. 2007) (state

agencies have sovereign immunity against §1983 suits).

AOC Director Sullivan, Pulaski County Circuit Clerk O’Brien, and Officer

McNutt, whom Taylor sues in their individual capacities as employees of the State of

Arkansas, Pulaski County, or the City, are entitled to qualified immunity because a

Fourteenth Amendment right to informational privacy is not a clearly established

constitutional right. See Dillard v. O’Kelley, 961 F.3d 1048, 1054 (8th Cir. 2020) (“[T]he

alleged constitutional right to informational privacy is not ‘beyond debate’ in the Eighth

Circuit.”). Defendants are entitled to qualified immunity if: (1) the evidence, viewed in

the light most favorable to the plaintiff, does not establish a violation of a constitutional

right; or (2) the constitutional right was not clearly established at the time of the alleged

violation, such that a reasonable official would not have known that his or her actions

were unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009). In Dillard, the Eighth

Circuit granted qualified immunity to various public officials and local governments who

provided investigatory reports detailing child sexual abuse to tabloid news outlets, which

the plaintiffs claimed violated their Fourteenth Amendment right to privacy. Dillard, 961

F.3d at 1050. The Eighth Circuit reasoned that the status of the right to informational

privacy was “uncertain,” and that “[i]f a right does not clearly exist, it cannot be clearly

established.” Id. at 1055. Because this purported right is still not clearly established, the

individual defendants have qualified immunity. See Jackson v. Ramsey Cnty. Adult Det.

Ctr., No. 21-CV-0929, 2022 WL 2374666, at *6 (D. Minn. May 28, 2022), R&R

adopted, 2022 WL 2374131 (D. Minn. June 30, 2022) (“No Eighth Circuit case since

Dillard has shored up the status of a right to informational privacy, much less its metes

and bounds.”); Howell v. Gettinger, No. 4:23-CV-00464-CDP, 2023 WL 3433955, at *9

(E.D. Mo. May 12, 2023) (holding that after Dillard, “there is no right of informational

privacy in the Eighth Circuit”).

Taylor’s claims against the City2 and Pulaski County also fail because a

2 The LRPD and City Attorney are merely subdivisions of the City and are not entities that can

be sued under section 1983. Ketchum v. City of West Memphis, 974 F.2d 81, 82 (8th Cir. 1992).

constitutional right to informational privacy has not been clearly established. A

municipality may be liable where a constitutional violation is accompanied by a showing

that the municipality “failed to train its employees to handle recurring situations

presenting an obvious potential for such a violation.” Bd. of Cty. Comm’rs v. Brown, 520

U.S. 397, 406–07 (1997) (emphasis added). But for the potential for a constitutional

violation to be “obvious,” there must be a clear constitutional duty. Szabla v. City of

Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007). The potential for constitutional

violation was not obvious because the right to informational privacy has not been clearly

established. See Dundon v. Kirchmeier, 85 F.4th 1250, 1257–58 (8th Cir. 2023).

B. Identify Theft and Assumption Deterrence Act

Taylor’s claim for a violation of the Identify Theft and Assumption Deterrence

Act, 18 U.S.C. § 1028, fails because that statute provides no private right of action. See

Smith v. Motor City, No. 8:23CV48, 2023 WL 5275616, at *2 (D. Neb. Aug. 16, 2023);

see also Frison v. Zebro, 339 F.3d 994, 999 (8th Cir. 2003) (noting the “strong

presumption against recognizing a private right of action under a criminal statute”).

C. State Law Claims

The remainder of Taylor’s claims are based in state law. These are dismissed

without prejudice because the balance of factors to be considered in whether to exercise

supplemental jurisdiction—judicial economy, convenience, fairness, and comity—points

towards declining to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3);

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); United Mine Workers of

Am. v. Gibbs, 383 U.S. 715, 726 (1966).

IV. CONCLUSION

For these reasons, Taylor’s motion to proceed in forma pauperis is granted, her

motion to file under seal her complaint and Exhibits 1-4 is granted in part and denied in

part, and her claims against all defendants are dismissed without prejudice.

IT IS SO ORDERED this 25th day of June, 2024.

UNITED trates Cat JUDGE