Mulkey v. Rock Hill Loc School

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0035p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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SHARA JENKINS, individually and as legal guardian

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of Shanell Ratcliff (06-4550); BRENDA MULKEY,

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individually and as legal guardian of Charles

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Nos. 06-4550/4551

Littlejohn (06-4551),

,

Plaintiffs-Appellants, >

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v.

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ROCK HILL LOCAL SCHOOL DISTRICT and LLOYD

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EVANS, individually and in his official capacity as

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Superintendent of Rock Hill Local School District,

Defendants-Appellees. -

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Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

Nos. 04-00180; 04-00269—Susan J. Dlott, District Judge.

Argued: December 5, 2007

Decided and Filed: January 17, 2008

Before: DAUGHTREY and COLE, Circuit Judges; COLLIER, Chief District Judge.*

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COUNSEL

ARGUED: Michael Garth Moore, LAW OFFICE OF MICHAEL MOORE, Columbus, Ohio, for

Appellants. R. Gary Winters, McCASLIN, IMBUS & McCASLIN, Cincinnati, Ohio, for Appellees.

ON BRIEF: Michael Garth Moore, LAW OFFICE OF MICHAEL MOORE, Columbus, Ohio, for

Appellants. R. Gary Winters, Ian R. Smith, McCASLIN, IMBUS & McCASLIN, Cincinnati, Ohio,

for Appellees.

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OPINION

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CURTIS L. COLLIER, Chief District Judge. Plaintiffs Shara Jenkins (“Jenkins”) and

Brenda Mulkey (“Mulkey”) filed this consolidated appeal challenging the district court’s grant of

summary judgment to defendants Lloyd Evans (“Evans”) and the Rock Hill School Board (“School

*

The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District of Tennessee,

sitting by designation.

1

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Board”) on their First Amendment retaliation and privacy claims. In analyzing the retaliation

claims, the district court incorrectly limited constitutionally protected activities to matters of public

concern. However, because the district court reached the correct decision on all claims except

Jenkins’s retaliation claim against Evans, we REVERSE the district court’s decision on that claim

and AFFIRM its decision on all others.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

A. Jenkins and Her Daughter, Shanell

This case stems from a dispute between Jenkins and school officials over the treatment of

Jenkins’s daughter, Shanell. Shanell was enrolled in first grade at Rock Hill Elementary School

(“Rock Hill”) in March 2000. That month, Shanell was diagnosed with diabetes, and Jenkins made

arrangements with the school nurse, Marsha Wagner (“Wagner”), for Wagner and other school

personnel to assist Shanell with her diabetes treatment.

There were no problems until Shanell started second grade in the 2000-2001 school year.

Jenkins again arranged with Wagner for school personnel to assist Shanell. However, there was an

apparent misunderstanding between Jenkins and Wagner over whether Wagner would administer

an insulin shot if she received proper written authorization from Jenkins and Shanell’s doctor. This

confusion led Jenkins to believe Rock Hill was being uncooperative in caring for Shanell.

Because Rock Hill would not administer insulin shots, Jenkins contacted Evans, the school

superintendent, on October 29, 2001. In her affidavit, Jenkins alleges Evans told her the school was

not responsible for Shanell’s medical care and suggested she enroll Shanell in a different school.

Jenkins then contacted the School Board on November 19 and the Ohio Coalition for Children with

Disabilities on November 26.

The following day, November 27, 2001, Jenkins alleges Evans called her and told her

Shanell could not come back to school. This prompted Jenkins to contact the U.S. Department of

Education’s Office of Civil Rights, the Ohio Department of Education, a county commissioner, and

members of the School Board.

After Shanell missed over a week of classes, Evans relented and allowed Shanell to return

to school on December 6. The next day, Jenkins claims school personnel barred her from going to

Shanell’s classroom, while other non-employees freely walked through the building as Jenkins

normally did. Defendants respond that Jenkins was stopped at the front office because she was

required to comply with the general policy of signing in before seeing her daughter during school

hours. Jenkins claims that when she confronted Evans about this incident and the school’s role in

caring for Shanell, Evans threatened to involve the Lawrence County Department of Job and Family

Services (“Children Services”) in the matter. “Ms. Jenkins,” he allegedly explained, “you contacted

the Office of Civil Rights and got an investigation started, so I figured I’d start one of my own.”

The next week, on December 13, 2001, the Ironton Tribune newspaper printed a letter to the

editor written by Jenkins:

I have a 7-year-old daughter who is diabetic and has attended Rock Hill No. 2 school

for three years. I received a phone call from the superintendent Nov. 27 and was told

I couldn’t bring my daughter back to school. I was told she wasn’t enrolled there

anymore.

The school took it upon themselves to withdraw her without my permission and said

that I was the one who withdrew her. We tried going to the school and got escorted

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out by a teacher. I made contacts with the state and got her back in school after she

missed seven days.

Now, we are being treated differently, just because I’m fighting for my daughter’s

rights. There’s only one teacher in the school willing to take responsibility for my

daughter’s health issues. This goes to show you how much “teachers” care about

your children.

She also filed a complaint with the U.S. Department of Education, which the agency received

on December 17.

On December 19, 2001, a call was placed from the Rock Hill principal’s office to Children

Services. In that call, Wagner provided information about Jenkins and Shanell. Children Services

filed a court complaint against Jenkins in January 2002, but the charges were dropped as

unsubstantiated in May 2002.

When Jenkins accused Evans of calling Children Services, she contends that he responded,

“I told you I was going to involve Children Services . . . I don’t like to be pushed around. I don’t

take that too lightly.” When she told Evans their disputes would have to be settled in court, he

suggested she would be wasting her time. “I have a lot more pull than you do, and there’s no

attorney gonna stand up to me, because they know they can’t win,” she recounts him saying.

Also in January 2002, Shanell’s doctor recommended she be home-schooled, and Shanell

stopped attending school. Rock Hill initially provided a tutor but that person stopped tutoring

Shanell for reasons unknown to her mother. Jenkins repeatedly requested Evans provide a tutor for

Shanell but Evans allegedly said he could not find anyone willing to tutor her. Without a tutor,

Shanell did not receive her education the last three months of the school year. The next school year,

she transferred to another school district.

B. Mulkey and Her Son, Charles

Mulkey enrolled her son Charles in Rock Hill in January 2003. Charles had diabetes, so

school nurse Wagner checked his blood sugar regularly. Mulkey received frequent calls from

Wagner telling her to pick Charles up from school because his blood sugar was high or he was not

feeling well. Mulkey felt that some of those calls were unnecessary. She complained about the calls

to Wagner. She then brought her concerns to Evans, who disagreed with her concerns. Evans also

suggested the possibility of home-schooling, which Mulkey declined because Charles’s doctor

recommended he attend school with other kids.

On March 18, 2003, Charles was sick so Wagner tried to contact Mulkey, but Mulkey’s

phone was disconnected. In addition, Wagner was running low on medical supplies that Mulkey

was supposed to supply for Charles. Wagner, after consulting with the school principal, called

Children Services to report possible child neglect. A Children Services investigator interviewed her,

causing her no expense or hardship, and then closed the case.

Two weeks after the Children Services call, on April 4, 2003, Mulkey moved to her father’s

property in another school district and enrolled Charles in that district.

II. STANDARD OF REVIEW

The Court reviews a district court’s grant of summary judgment de novo. Bender v. Hecht’s

Dep’t Stores, 455 F.3d 612, 619 (6th Cir. 2006). Summary judgment is appropriate if “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

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party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The Court must construe

the facts and draw all inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

III. DISCUSSION

Plaintiffs brought their claims for violations of the First Amendment to the United States

Constitution pursuant to 42 U.S.C. § 1983, which allows a plaintiff to vindicate the deprivation of

constitutional rights by a defendant acting under color of law. Harbin-Bey v. Rutter, 420 F.3d 571,

575 (6th Cir. 2005).

A. Retaliation

Plaintiffs allege they were retaliated against in violation of the First Amendment. There are

three elements to a retaliation claim:

(1) the plaintiff was engaged in a constitutionally protected activity;

(2) the defendant’s adverse action caused the plaintiff to suffer an injury that would

likely chill a person of ordinary firmness from continuing to engage in that activity;

and

(3) the adverse action was motivated at least in part as a response to the exercise of

the plaintiff’s constitutional rights.

Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). If the plaintiff meets this burden, the burden of

production shifts to the defendant, Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999) (en

banc), but if the defendant can show he would have taken the same action in the absence of the

protected activity, he is entitled to summary judgment. Id.

In granting summary judgment to Defendants, the district court incorrectly held that

Jenkins’s and Mulkey’s speech was not constitutionally protected because it did not touch upon a

matter of public concern. The public concern test originated in Pickering v. Board of Education,

391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983), in which the Supreme Court held

the First Amendment protects from retaliation government employees who speak on matters of

public concern.1 461 U.S. at 147. Following its rationale in Pickering, the Court in Connick sought

to balance the interests of government employees, as citizens, “in commenting upon matters of

public concern and the interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Id. at 142 (citing Pickering, 391 U.S. at 568). To

achieve this balance, the Court held the speech of government employees is constitutionally

protected if it touches upon a matter of public concern. Connick was expressly limited to

government employees and based solely on the need to balance the free speech rights of government

employees with the government’s needs as an employer. See id. at 154; Thaddeus, 175 F.3d at 390

(“The story of the public concern limitation is a story about the free speech of public employees.”).

The Supreme Court has used the public concern test in situations analogous to public

employment, where free speech rights must be balanced against the need to effectively manage a

governmental entity. See Tenn. Secondary Sch. Ath. Ass’n v. Brentwood Acad., 127 S. Ct. 2489,

1

In fact, the public concern test actually expanded the free speech rights of public employees. See Garcetti

v. Ceballos, 126 S. Ct. 1951, 1957 (2006) (noting that Pickering and Connick changed the dogma that public employees

surrender all their First Amendment rights by reason of their employment); Rutan v. Republican Party, 497 U.S. 62, 95

(1990) (“Private citizens cannot be punished for speech of merely private concern, but government employees can be

fired for that reason.”); Van Deelen v. Johnson, 497 F.3d 1151, 1156-57 (10th Cir. 2007) (“The public concern test was

meant to form a sphere of protected activity for public employees, not a constraining noose around the speech of private

citizens.”).

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2495 (2007) (coaches voluntarily participating in an athletic league); Bd. of County Comm’rs v.

Umbehr, 518 U.S. 668, 673 (1996) (government contractors). Courts have made other similar

extensions of the public concern test. Blackburn v. City of Marshall, 42 F.3d 925, 932-34 (5th Cir.

1995) (describing cases involving doctors suing public hospitals over staff privileges and licensees

suing government agencies, but declining to use public concern test in context of towing company

owner who sued police official).

Beyond those limited extensions, applying “the public concern test outside the public

employment setting would require us to rend it from its animating rationale and original context.”

Van Deelen, 497 F.3d at 1156-57; see also Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d

Cir. 2004) (“To expand this public concern limitation into the broader context of all citizen speech

would wrench it from its original rationale and curtail a significant body of free expression that has

traditionally been fully protected under the First Amendment.”); Campagna v. Mass. Dep’t of Envtl.

Prot., 334 F.3d 150, 155 (1st Cir. 2003); Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000);

Vickery v. Jones, 100 F.3d 1334, 1346 n.1 (7th Cir. 1996); United States v. Reyes, 87 F.3d 676, 680

(5th Cir. 1996).

This circuit has likewise recognized the limited nature of the public concern test, in a case

that we find dispositive here. Gable v. Lewis, 201 F.3d 769 (6th Cir. 2000). In Gable, the plaintiff

alleged a police officer retaliated against her in violation of her First Amendment right to petition

the government for a redress of grievances. 201 F.3d at 770. The plaintiff won a jury trial, and the

defendant appealed, arguing–among other issues–that the public concern test should have applied.

The Sixth Circuit rejected the defendant’s argument, holding that the public concern test is not

applicable to petitioning activity outside the public employee context. Id. at 771-72.2 The Court

noted that Connick created the public concern test because government agencies need the ability to

maintain order in their workplaces, which was inapplicable to the situation of a private individual

petitioning the government for the redress of grievances. Id. Likewise, the reason does not apply

in the context of parents criticizing school officials. In addition, the Court noted that “the petition

clause itself is not generally limited to matters of ‘public concern’ as described in the Connick case

but includes the petitioner’s private business interests.” Id. Likewise, the Supreme Court has held

that private speech is protected just like speech on public matters. United Mine Workers v. Illinois

State Bar Ass’n, 389 U.S. 217, 223 (1967); see also Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753, 760 (1995).

It is logical to extend Gable’s holding from petitioning to all speech because those rights are

“inseparable.” McDonald v. Smith, 472 U.S. 479, 485 (1985) (The right to petition “was inspired

by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and

assemble . . . These First Amendment rights are inseparable.”); Thomas v. Collins, 323 U.S. 516, 530

(1945) (“It was not by accident or coincidence that the rights to freedom in speech and press were

coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for

redress of grievances. All these, though not identical, are inseparable.”).

Defendants cite four cases, all from outside this circuit, for their argument the public concern

test applies when parents of school children criticize school officials. Three of those cases are

2

Defendants argue Gable has been implicitly overruled by Jones v. Union County, 296 F.3d 417, 426 (6th Cir.

2002). The Jones panel could not have overruled the Gable panel. 6 Cir. R. 206(c); United States v. Washington, 127

F.3d 510, 517 (6th Cir. 1997) (“[O]ne panel cannot overrule a prior panel’s published decision.”). Jones states, without

any discussion, “actions under the Petition Clause are limited to matters of public concern.” This quote, which was one

of two alternative grounds for the Court’s holding, was taken from Valot v. Southeast Local School District Board of

Education, 107 F.3d 1220, 1226 (6th Cir. 1997), which is a public employment case. For that proposition, Valot cites

six cases from various circuits, all of which are in the public employment context. The cases merely show that the public

concern test applies to petitioning activity for public employees.

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district court decisions that adopt, without analysis or explanation, the public concern test for parents

criticizing school officials. The fourth case is Landstrom v. Illinois Department of Children &

Family Services, 892 F.2d 670, 679 (7th Cir. 1990), in which the Seventh Circuit did not discuss the

issue but, instead, merely stated it agreed with the lower court’s analysis. The lower court had relied

on Pickering and Connick to guide its opinion as to what constitutes an exercise of First Amendment

rights, and determined parental criticism of school officials must touch upon a public concern to

constitute the exercise of First Amendment rights. Landstrom v. Illinois Dep’t of Children & Family

Services, 699 F. Supp. 1270, 1278 n.17 & n.18 (N.D. Ill. 1988). However, as noted above, Pickering

and Connick concern the exercise of First Amendment rights only by public employees. Because

public employees lack free speech rights in the context of their employment, those cases ensure

public employees can speak on matters of public concern. It seems apparent to us that the district

court in Landstrom fell into the same error as the district court in this case. We respectfully decline

to follow the Seventh Circuit’s mistaken analysis.

Nevertheless, Defendants argue the public concern test is necessary to prevent frequent

disputes between parents and school officials from becoming First Amendment lawsuits. But that

purpose is served by the other two elements of a First Amendment retaliation claim. The element

at issue here, constitutionally protected activity, cannot be so limited. Essentially, Defendants’

contention is that parental speech about school officials is not constitutionally protected if the speech

is not about matters of public concern. Such a contention is clearly wrong. Speech is generally

protected by the First Amendment, with restrictions on only limited types of speech, such as

obscenity, defamation, and fighting words, R. A. V. v. St. Paul, 505 U.S. 377, 382-83 (1992), none

of which is applicable here. Defendants have not pointed to any case from the Supreme Court or

this Court that parents criticizing school officials is off-limits when the speech is not about matters

of public concern. Rather, the right to criticize public officials is clearly protected by the First

Amendment. Bloch, 156 F.3d at 678 (citing Glasson v. City of Louisville, 518 F.2d 899, 904 (6th

Cir. 1975) (“The right of an American citizen to criticize public officials and policies and to

advocate peacefully ideas for change is the central meaning of the First Amendment.”)).

Had the district court applied the proper definition of constitutionally protected activity, the

Court would have recognized both Jenkins and Mulkey satisfy the first element of a prima facie First

Amendment retaliation claim. Jenkins complained to Evans, wrote a letter to a newspaper, and

contacted government officials and agencies; all these activities are constitutionally protected3

speech. Mulkey complained to Wagner and Evans, which is also constitutionally protected speech.

In Jenkins’s case, the district court did not reach the remaining two elements of a prima facie

case, but it is nevertheless evident she satisfies them. As to the second element, a jury could

conclude Evans’s alleged actions, dismissing Shanell from school, being involved in making a false

report to Children Services, and refusing to provide home-school education through the services of

a tutor, would chill a person of ordinary firmness from engaging in speech. Jenkins also satisfies

the third element because Evans allegedly admitted that Jenkins’s complaints prompted him to be

involved in reporting her to Children Services. See Fed. R. Civ. P. 56(c) (nothing that on a motion

for summary judgment, we view all facts in favor of Jenkins). Therefore, the district court erred in

granting summary judgment to Evans on Jenkins’s retaliation claim.

In Mulkey’s case, the district court noted there is “no evidence of any retaliation in this

case.” Mulkey did not challenge this determination on appeal, and there is no proof that Evans took

adverse action against Mulkey. Instead, the evidence establishes Wagner called Children Services

3

Because Jenkins and Mulkey are also pursuing claims on behalf of Shanell and Charles, the two children are

also plaintiffs. Neither child presents a prima facie case because there is no evidence either engaged in any

constitutionally protected speech, so the district court properly granted summary judgment on the claims by Shanell and

Charles.

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because she could not contact Mulkey and Mulkey had not provided necessary medical supplies for

Charles. Accordingly, the district court did not err in granting summary judgment to Evans on

Mulkey’s retaliation claim.

The district court also did not err in granting summary judgment to the School Board on both

Jenkins’s and Mulkey’s claims because there is no respondeat superior liability in actions under

§ 1983, and there is no evidence a government custom or policy led to any adverse action against

Plaintiffs. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Scarbrough v. Morgan

County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006).

B. Invasion of Privacy

Plaintiffs also allege violations of their right to privacy under the First Amendment.

Although they brought these claims under the First Amendment, there is no indication or argument

supporting a privacy violation based on the First Amendment. Compare with NAACP v. Alabama,

357 U.S. 449, 462 (privacy in associations protected by First Amendment), Perry v. McGinnis, 209

F.3d 597, 609 (6th Cir. 2000) (substantive due process claim based on fundamental right of freedom

of expression).

Instead the parties presented arguments relying on the substantive due process clause of the

Fourteenth Amendment. The basis for Plaintiffs’ arguments is that Defendants caused Wagner to

falsely report to Children Services that Shanell and Charles were being medically neglected.4

As a preliminary matter, as discussed previously, there is no evidence Evans caused Wagner

to make a false report about Charles, nor is there evidence the School Board, through an official or

unofficial policy or custom, was involved in reporting either Shanell or Charles. Thus, assuming

arguendo there was a privacy violation committed, the only possible claim is by Jenkins against

Evans, who may be liable because there is evidence he proximately caused Wagner to make the false

report about Shanell. See Cameron v. Pontiac, 813 F.2d 782, 786 (6th Cir. 1987); see also Brokaw

v. Mercer County, 235 F.3d 1000, 1012 (7th Cir. 2000) (“An official causes a constitutional

violation if he sets in motion a series of events that defendant knew or reasonably should have

known would cause others to deprive plaintiff of constitutional rights.”) (citing Morris v. Dearborne,

181 F.3d 657, 672 (5th Cir. 1999)).

The Fourteenth Amendment guarantees “due process of law” for any deprivation of “life,

liberty, or property.” U.S. Const. amend XIV § 1. This guarantee includes both procedural and

substantive components. The substantive component incorporates most guarantees of the Bill of

Rights, and it also protects other “fundamental rights and liberties which are, objectively deeply

rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that

neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S.

702, 720-21 (1997) (internal quotation marks and citations omitted). The Fourteenth Amendment

“forbids the government to infringe fundamental liberty interests at all, no matter what process is

provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Id. at

721 (internal quotations omitted).

The substantive due process clause protects two types of privacy rights. Whalen v. Roe, 429

U.S. 589, 599-600 (1977): (1) an individual’s right to make “personal decisions relating to marriage,

procreation, contraception, family relationships, child rearing, and education.” Lawrence v. Texas,

4

In her reply brief, Jenkins argues the privacy claim is also based on Shanell’s disenrollment from school and

Rock Hill’s “intentional refusal” to provide a tutor. These claims were not mentioned in her original brief, and they are

therefore waived. United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002) (“[T]he appellant cannot raise new

issues in a reply brief.”).

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539 U.S. 558, 574 (2003); and (2) an individual’s “interest in avoiding disclosure of personal

matters.” Whalen, 429 U.S. at 599; Kallstrom v. City of Columbus, 136 F.3d 1055, 1060 (6th Cir.

1998). Plaintiffs assert their claim based on both types of privacy rights.

1. Fundamental Right of Child Rearing

Plaintiffs claim a “parent’s right to the orderly rearing and education of her child is afforded

constitutional protection.” Indeed, parents have a liberty interest in the care, custody, and control

of their children. Troxel v. Granville, 530 U.S. 57, 65 (2000); see also Pierce v. Soc’y of Sisters,

268 U.S. 510, 535 (1925) (Fourteenth Amendment prevents “unreasonably interfer[ing] with the

liberty of parents and guardians to direct the upbringing and education of children under their

control.”); Barrett v. Steubenville City Schools, 388 F.3d 967, 972 (6th Cir. 2004) (noting the

fundamental right of parents to raise their child has been clearly established); Johnson v. City of

Cincinnati, 310 F.3d 484, 499 (6th Cir. 2002) (“[A] family member’s right to participate in child

rearing and education is one of the most basic and important associational rights protected by the

Constitution.”).

Evans’s actions against Plaintiffs did not violate their fundamental rights. Mulkey was

subjected to an interview and Jenkins was subject to an investigation and court complaint. But

neither was deprived of her child. Neither lost care, custody, or control of her child nor the right to

raise her child. At most, they were victims of something resembling malicious prosecution or

defamation, neither of which are cognizable as constitutional violations of privacy. Albright v.

Oliver, 510 U.S. 266, 271 n.4 (1994); Paul v. Davis, 424 U.S. 693, 702 (1976). There are cases in

other circuits finding that parents who lost custody of their children because of malicious, false

reports suffered constitutional violations. Brokaw, 235 F.3d at 1018-19; Morris v. Dearborne, 181

F.3d 657, 667 (5th Cir. 1999); Gedrich v. Fairfax County Dep’t of Family Servs., 282 F. Supp. 2d

439, 461 (E.D. Va. 2003). Here, however, there was no separation. There is no constitutional

violation in merely being subjected to a false report. See also Croft v. Westmoreland County

Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997) (holding that a “child abuse

investigation does not, in and of itself, constitute a constitutional deprivation”).

2. Avoiding Disclosure of Private Matters

Plaintiffs also base their privacy claim on the alleged disclosure of information to Children

Services. In J.P. v. DeSanti, 653 F.2d 1080, 1091 (6th Cir. 1981), this Court rejected the idea there

is a general constitutional right of nondisclosure of personal information. Rather,“any constitutional

right to privacy must be restricted to those personal rights that can be deemed fundamental or

implicit in the concept of ordered liberty.” Kallstrom, 136 F.3d at 1062 (citing DeSanti, 653 F.2d

at 1090) (internal quotation marks omitted).

In Kallstrom, the Court identified a situation where nondisclosure of personal information

was a constitutionally protected right: undercover police officers have a constitutionally protected

privacy interest in some personal information contained in their personnel files under the substantive

due process clause. 136 F.3d at 1059. The officers’ privacy interests in the personal information

are of a constitutional dimension because they implicate a fundamental liberty interest, namely, their

lives, their families’ lives, and their personal security. Id. at 1062. Their personal security was

threatened because the release of that information created a “serious risk to the personal safety” of

the officers and their families from a violent gang likely to seek revenge. Id. at 1063. This Court

has also held that “information regarding private sexual matters warrants constitutional protection

against public dissemination.” Bloch v. Ribar, 156 F.3d 673, 686 (6th Cir. 1998).

Kallstrom “did not create a broad right protecting plaintiffs’ personal information.” Barber

v. Overton, 496 F.3d 449, 456 (6th Cir. 2007) (release of correctional officers’ social security

numbers was not sensitive enough to warrant constitutional protection despite threat of retaliation);

Nos. 06-4550/4551 Jenkins, et al. v. Rock Hill Local School District, et al. Page 9

see also Bailey v. City of Port Huron, --- F.3d ----, No. 06-2375, 2007 WL 3196505 (6th Cir. Nov.

1, 2007) (criminal suspects have no constitutional right to privacy in their mug shots or in

information contained in a police report); Overstreet v. Lexington-Fayette Urban County Gov’t, 305

F.3d 566, 575 (6th Cir. 2002) (no privacy interest in personal financial affairs); Doe v. Wigginton,

21 F.3d 733 (6th Cir. 1994) (disclosure of HIV infection not violation of constitutional right to

privacy).

Here, Plaintiffs lack a constitutional invasion of privacy claim because they were not put at

a serious risk of losing a fundamental liberty interest. Although Jenkins did face a court complaint

for child neglect, she was not separated from her child. The same is even more true for Mulkey; any

harm to her from being interviewed by a Children Services investigator was at most de minimis.

For the same reason that Plaintiffs were not deprived of a fundamental right, they were not

victimized by the dissemination of information that is not of a constitutional magnitude. Because

Plaintiffs’ privacy claims fail under either theory, the district court did not err in granting summary

judgment on those claims.

C. District Court’s Factual Summaries

Plaintiffs also challenge the district court’s orders granting summary judgment, contending

they made improper credibility determinations and disputing some of the word choices the court

used. Having reviewed the evidence in these cases and the district court’s opinions, we conclude

this challenge is without merit.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is REVERSED with regard to

Jenkins’s First Amendment retaliation claim against Evans and is AFFIRMED on all other claims.