Karen Malleus v. John George

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-3539

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DR. KAREN MALLEUS,

Appellant

v.

DR. JOHN J. GEORGE, in his individual capacity;

DR. JILL M. HACKMAN, in her individual capacity;

DR. JEFFREY A. CONRAD, in his individual capacity;

INTELLIGENCER JOURNAL/LANCASTER,

New Era Editor DOE;

SUNDAY NEWS EDITOR DOE;

LANCASTER NEWSPAPERS, INC.;

CINDY STAUFFER

______

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-10-cv-01357)

District Judge: Honorable Juan R. Sánchez

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Argued April 15, 2011

Before: FISHER, JORDAN and COWEN, Circuit Judges.

(Filed: May 26, 2011)

Andrea C. Farney

Sharon R. Lopez (Argued)

Triquetra Law

35 East Orange Street, Suite 301

Lancaster, PA 17602

Counsel for Appellant

Paul J. Cianci (Argued)

Michael I. Levin

Levin Legal Group

1800 Byberry Road

1301 Masons Mill Business Park

Huntingdon Valley, PA 19006

Counsel for Appellees, Dr. John J. George

and Dr. Jill M. Hackman

Leonard G. Brown (Argued)

Clymer, Musser, Brown & Conrad

408 West Chestnut Street

Lancaster, PA 17603

Counsel for Appellee,

Dr. Jeffrey A. Conrad

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OPINION OF THE COURT

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FISHER, Circuit Judge.

Appellant Dr. Karen Malleus appeals the final order of

the United States District Court for the Eastern District of

Pennsylvania granting John J. George, Jill M. Hackman, and

Jeffrey A. Conrad’s motion to dismiss Malleus’s 42 U.S.C.

§ 1983 claim that they violated her Fourteenth Amendment

privacy rights. For the reasons discussed below, we will

affirm.

I.

Malleus was a school board member for the Warwick

School District. George and Hackman were also members of

the school board. Conrad was the head of the Warwick

Republican Party, and later a candidate for the school board.

In 2006, a student within the Warwick School District

(“Reporting Student”) reported that she had seen a teacher

(“Teacher”) hugging a minor student (“Minor Student”).

Immediately after witnessing the incident, the Reporting

Student told her substitute teacher about it. That evening the

Reporting Student explained to her parents what she had seen.

They then had her call her great-aunt, Malleus. Over the next

few days, the Reporting Student and her parents met with

various school administrators. The school and school district

subsequently conducted an investigation into the Reporting

Student’s claim.

During the subsequent investigation Malleus shared

credibility concerns about the Reporting Student,

volunteering advice to various administrators that they should

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have more evidence before disciplining the Teacher based on

the account given by the Reporting Student. She raised these

concerns with other members of the school board, the

school’s administration, and the school’s faculty. Malleus did

so because the allegations against the Teacher were serious,

and she questioned the accuracy of those allegations. The

investigation into the incident ended when the Teacher and

the Minor Student denied the allegations. The Teacher

received a warning that the allegations were serious and that,

had they been true, the Teacher would have been terminated.

In 2008, a police officer encountered the Minor

Student and the Teacher engaging in sexual activity. The

Teacher was arrested. Subsequently, the school board

conducted its own investigation into the 2006 incident.

Malleus agreed to cooperate with the investigation

because the attorney conducting the investigation told her that

the report would remain confidential, and the school board

expressed that the report would be confidential. In an

interview, she repeated her opinion that the Reporting Student

has a vivid imagination and a history of exaggerating her

conclusions about others’ conduct.

The final report detailed Malleus’s interjection into the

2006 investigation. Malleus viewed the report as unfair, and

she was upset with its conclusions; however, she believed it

would remain confidential.

In the run up to the 2008 school board election, George

and Hackman leaked a copy of the report to Conrad, who

subsequently provided it to the press. Local papers released

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articles based on the report. Malleus alleges that these

articles caused reputational harm, family problems, loss of

emotional peace of mind, and loss of income.

Malleus filed a § 1983 claim against George,

Hackman, and Conrad for violating her right to privacy. She

claimed to have had a constitutionally protected expectation

of privacy in the report under the Fourteenth Amendment

because she had revealed her opinion about her grand-niece

for a limited purpose and with the expectation that it would be

kept secret. The District Court dismissed the complaint under

Fed. R. Civ. P. 12(b)(6), ruling it failed to state a claim

because the Fourteenth Amendment does not protect that type

of communication.

Malleus filed a timely notice of appeal.

II.

The District Court had jurisdiction under 28 U.S.C.

§ 1331. We have jurisdiction under 28 U.S.C. § 1291.

Malleus argues that the District Court erred in

dismissing her § 1983 claim. The District Court held that

Malleus failed to plead that a right secured by the

Constitution had been violated. See Barna v. City of Perth

Amboy, 42 F.3d 809, 815 (3d Cir. 1994). Malleus argues that

her Fourteenth Amendment right to privacy was violated

when her opinion about her grand-niece’s truthfulness was

disclosed by George, Hackman, and Conrad.

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We exercise plenary review over a district court’s

grant of a motion to dismiss. AT&T v. JMC Telecom, LLC,

470 F.3d 525, 530 (3d Cir. 2006). When reviewing a motion

to dismiss, “[a]ll allegations in the complaint must be

accepted as true, and the plaintiff must be given the benefit of

every favorable inference to be drawn therefrom.” Kulwicki

v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). A motion to

dismiss should be granted if the plaintiff is unable to plead

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007).

To determine the sufficiency of a complaint, a court

must take three steps. First, the court must “tak[e] note of the

elements a plaintiff must plead to state a claim.” Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1947 (2009). Second, the court should

identify allegations that, “because they are no more than

conclusions, are not entitled to the assumption of truth.” Id.

at 1950. Third, “whe[n] there are well-pleaded factual

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement

for relief.” Id. This means that our inquiry is normally

broken into three parts: (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.

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III.

For a plaintiff to recover under § 1983, she must

establish that the defendant acted under color of state law to

deprive the plaintiff of a right secured by the Constitution.

West v. Atkins, 487 U.S. 42, 48 (1988); Barna, 42 F.3d at 815.

The right that Malleus claims is protected by the Constitution

is the right to share one’s opinion about other individuals

privately. For purposes of Twombly analysis, we must first

establish that this is a right secured by the Constitution; if

there is no constitutional right, it does not matter what facts

have been provided as there can be no § 1983 claim.

Generally, Fourteenth Amendment constitutional

privacy is limited to information about oneself. To the extent

that the right applies to information about others, it is limited

to one’s decision not to share that information.

To begin with, both the common law and the

literal understandings of privacy encompass the

individual’s control of information concerning

his or her person. In an organized society, there

are few facts that are not at one time or another

divulged to another. Thus the extent of the

protection accorded a privacy right at common

law rested in part on the degree of

dissemination of the allegedly private fact and

the extent to which the passage of time rendered

it private. According to Webster’s initial

definition, information may be classified as

“private” if it is “intended for or restricted to the

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use of a particular person or group or class of

persons: not freely available to the public.”

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of

Press, 489 U.S. 749, 764-65 (1989) (footnotes omitted).

Traditionally, the Fourteenth Amendment has

protected two types of privacy rights. Whalen v. Roe, 429

U.S. 589, 599-600 (1977); C.N. v. Ridgewood Bd. of Educ.,

430 F.3d 159, 178 (3d Cir. 2005). First, it protects “the

individual interest in avoiding disclosure of personal

matters.” Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)

(internal quotation marks and citation omitted). This category

protects against disclosure of certain personal information,

including: information containing specific “details of one’s

personal life,” id. at 121; Scheetz v. The Morning Call, Inc.,

946 F.2d 202, 208 (3d Cir. 1991), information “which the

individual is ordinarily entitled to retain within the private

enclave where he may lead a private life,” and information

containing “intimate facts of a personal nature.” United

States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d

Cir. 1980) (internal quotation marks and citation in footnote

omitted). Second, it protects “the interest in independence in

making certain kinds of important decisions.” C.N., 430 F.3d

at 178 (quoting Whalen 429 U.S. at 599). This category of

“important decisions” has not been extended beyond “matters

relating to marriage, procreation, contraception, family

relationships, and child rearing and education.”

Westinghouse, 638 F.3d at 577 (quoting Paul v. Davis, 424

U.S. 693, 713 (1976)). The first category is a right to

confidentiality, and the second category is a right to

autonomy. See Doe v. Delie, 257 F.3d 309, 317 n.5 (3d Cir.

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2001). As it is unclear which category of privacy Malleus is

claiming, we will analyze her claim under both prongs.

This first type of privacy right is the right recognized

in Justice Brandeis’s dissent in Olmstead v. United States,

“the right to be let alone.” 277 U.S. 438, 478 (1928). “[T]he

right not to have intimate facts concerning one’s life disclosed

without one’s consent” is “a venerable [right] whose

constitutional significance we have recognized in the past.”

Bartnicki v. Vopper, 200 F.3d 109, 122 (3d Cir. 1999) (citing

Paul P. v. Verniero, 170 F.3d 396, 401-02 (3d Cir. 1999)).

“In determining whether information is entitled to privacy

protection, we have looked at whether it 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.” Fraternal Order of Police v. City of Philadelphia,

812 F.2d 105, 112-13 (3d Cir. 1987) (“FOP”). We have

deemed the following types of information to be protected: a

private employee’s medical information when sought by the

government, Westinghouse, 638 F.2d at 577; medical,

financial and behavioral information relevant to a police

investigator’s ability to work in dangerous and stressful

situations, FOP, 812 F.2d at 113, 115-16; a public

employee’s medical prescription record, Doe v. Southeastern

Pennsylvania Trans. Auth., 72 F.3d 1133, 1138 (3d Cir. 1995)

(“SEPTA”); a minor student’s pregnancy status, Gruenke v.

Seip, 225 F.3d 290, 301 (3d Cir. 2000); sexual orientation,

Sterling v. Borough of Minersville, 232 F.3d 190, 196 (3d Cir.

2000); and an inmate’s HIV-positive status, Delie, 257 F.3d

at 317, 323. This information consists of three categories:

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sexual information, Sterling, 232 F.3d at 196, medical

information, SEPTA, 72 F.3d at 1139, and some financial

information, Paul P., 170 F.3d at 402. While this is not an

exhaustive list, it is clear that the privacy right is limited to

facts and an individual’s interest in not disclosing those facts

about himself or herself. It is the right to refrain from sharing

intimate facts about oneself.

The information for which Malleus is claiming a

privacy right meets none of these criteria. She may not have

intended wide-dissemination of her opinion but she

volunteered it to others, including the attorney who drafted

the “confidential” report. The information was voluntarily

shared, non-intimate (it was not relating to sexuality, medical

records, or financial information), an opinion rather than fact,

and about someone else. Malleus lacks a constitutional right

to privacy under the first category.

The second type of privacy right is the right to

autonomy and independence in personal decision-making.

Cases in this category describe the liberty interests in matters

relating to marriage, procreation, contraception, family

relationships, and parental child rearing and education

decisions. See, e.g., Troxel v. Granville, 530 U.S. 57 (2000)

(parents’ rights to make decisions concerning care and

custody of children); Roe v. Wade, 410 U.S. 113 (1973) (right

to abortion); Loving v. Virginia, 388 U.S. 1 (1967) (freedom

to marry); Griswold v. Connecticut, 381 U.S. 479 (1965)

(right to marital privacy in use of contraceptives); Pierce v.

Society of Sisters, 268 U.S. 510 (1925) (parents’ right to teach

own children); Meyer v. Nebraska, 262 U.S. 390 (1923) (right

to teach foreign language).

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The decision of a school board member to participate

in an investigation into how a sexual assault investigation had

been handled, while an important matter, does not implicate

the kinds of interests recognized by the foregoing cases. The

decision of an individual, in either her role as a school board

member or in her role as a great-aunt, to share her opinion

cannot be compared to the fundamental and life altering

decisions where courts have recognized a privacy right for

independent personal decision-making.

As Malleus has no claim under either of the recognized

tests for Fourteenth Amendment privacy, she argues instead

for a third, unrecognized type of privacy. She argues that if

someone shares his or her opinion about someone else, with

the expectation that that opinion will be kept secret, then the

opinion must be kept confidential. We have not previously

recognized a third category of Fourteenth Amendment

privacy, and we decline to do so now.1

Courts have explained how limited the privacy right is.

[T]he federal constitution . . . protects against

public disclosure only [of] highly personal

matters representing the most intimate aspect of

human affairs. Indeed, the constitutional right

1

We recognize that there are other constitutionally

protected rights that can be said to involve privacy concerns,

such as the right to practice one’s religion, which is protected

by the First Amendment. See, e.g., Buckley v. Valeo, 424

U.S. 1, 64 (1976). However, Malleus has only brought her

claim under the Fourteenth Amendment.

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of privacy, which courts have been reluctant to

expand, shields from public scrutiny only that

information which involves deeply rooted

notions of fundamental personal interests

derived from the Constitution. In this respect,

the federal right of privacy is significantly

narrower than the right of privacy protected by

state tort law.

Nunez v. Pachman, 578 F.3d 228, 232 (3d Cir. 2009) (internal

quotation marks and citations omitted). Were our circuit to

apply the broadest test for privacy accepted in any of our

sister circuits, Malleus’s opinion would still not be

constitutionally protected. In the Eighth Circuit, “to violate [a

person’s] constitutional right of privacy, the information

disclosed must be either a shocking degradation or an

egregious humiliation of her to further some specific state

interest, or a flagrant breech [sic] of a pledge of

confidentiality which was instrumental in obtaining the

personal information.” Alexander v. Peffer, 993 F.2d 1348,

1350 (8th Cir. 1993). The information that Malleus shared,

while potentially embarrassing, could not cause a “shocking

degradation” or an “egregious humiliation.” Id.

As there is no Fourteenth Amendment right to privacy

for the type of information in this case, Malleus cannot state a

claim under § 1983. We will affirm the decision of the

District Court granting George, Hackman, and Conrad’s

motion to dismiss.

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IV.

For the reasons set forth above, we will affirm the

order of the District Court.

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