Opposition Brief — Cline v. Rogers

Supreme Court, U.S.

(y FILED

OCT 24 1996

No. 96-464

In The

Supreme Court of the United States

October Term, 1996

¢

JACKIE RAY CLINE,

Petitioner,

Vs.

GEORGE W. ROGERS, individually, and in his

capacity as Sheriff of McMinn County, and

McMINN COUNTY, TENNESSEE,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

SI

BRIEF IN OPPOSITION OF RESPONDENTS

GEORGE W. ROGERS, IN HIS CAPACITY AS

SHERIFF OF McMINN COUNTY, AND

McMINN COUNTY, TENNESSEE

°

Joun W. Baxer, Jr.

Counsel of Record

Geratp L. Guttey, Jr.

Attorneys for Respondents

Baker, McReyNoups, Byrne,

O'Kane, SHea & TOowNsEND

P.O. Box 1708

Knoxville, Tennessee 37901

(423) 637-5600

COSKEEOR CALL COLLECT (402) 32980

LIST OF INTERESTED PARTIES

The Petitioner is Jackie Ray Cline.

The Respondents are George W. Rogers, in his indi-

vidual capacity; George W. Rogers, in his capacity as

Sheriff of McMinn County; and McMinn County, Tennes-

see. Counsel for Mr. Rogers in his individual capacity is

Peter D. Van de Vate. Counsel for Mr. Rogers in his

capacity as Sheriff of McMinn County, and for McMinn

County, Tennessee, are John W. Baker, Jr. and Gerald L.

Gulley, Jr.

il

TABLE OF CONTENTS

Page

LIST OF INTERESTED PARTIES . «oo. ccesecesnecwse i

TABLE OF COUNTERING Gs i3 «bi cobai ies. yS swe Sin vas ii

TABLE COP RATE ae bce ct ds conde tcuke cee’ iv

os OS | Oe, Seeing Fy pony Hey: 1

SRALEMAEICS CAP Dea GARBER iain h ceeues bh sa cede 1

REASONS FOR DENYING THE WRIT............. 3

I. THERE IS NO CONSTITUTIONAL CLAIM

AVAILABLE TO THE PLAINTIFF BECAUSE

THERE IS NO STATE OR FEDERAL CONSTI-

TUTIONAL RIGHT TO PRIVACY IN A PEk-

SON’S PUBLIC CRIMINAL RECORD ......... 3

Il. THE COURT OF APPEALS APPLIED THE

PROPER RULE OF LAW TO DETERMINE

THAT THE PETITIONER DID NOT HAVE AN

ENFORCEABLE RIGHT UNDER 42 U.S.C.

6 Mb. eRe ee, b

Ill. THE COURT OF APPEALS APPLIED THE

PROPER RULE OF LAW TO FIND THAT THE

PLAINTIFF HAS NO REMEDY UNDER 42

USC: $1908. sce 7

IV. THERE IS NO CONFLICT AMONG FEDERAL

COURTS OF APPEALS ON THE QUESTION OF

AN IMPLIED PRIVATE CAUSE OF ACTION

UNDER €2 UDA. © DIG0E Vins sas cin aes ewesine 9

V. ANY ERROR IN DISMISSING THE COM-

PLAINT WAS HARMLESS BECAUSE THE

PLAINTIFF NEITHER ALLEGED, NOR

AMENDED THE COMPLAINT TO ALLEGE,

FACTS THAT WOULD ENTITLE HIM TO

RELIEF, AND HIS CLAIMS WERE THUS

iii

TABLE OF AUTHORITIES

Page

Cases CITep:

Braxton v. United States, 500 U.S. 344 (1991) .......... 9

Conley v. Gibson, 355 U.S. 41 (1957) ..............05. 10

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ..... 4

Fadjo v. Coon, 633 F.2d 1172 (5th Cir. Unit B 1981) ...5, 6

J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981).......... 3

Mann v. Conlin, 22 F.3d 100 (6th Cir. 1994).......... 10

Morrison v. Tomano, 755 F.2d 515 (6th Cir. 1985) ..... 10

Paul v. Davis, 424 U.S. 693 (1976) ................000, 4

Polchowski v. Gorris, 714 F.2d 749 (7th Cir. 1983) ... 5, 7, 9

Tosh v. Buddies Supermarkets, Inc., 482 F.2d 329 (5th

ASSESS REEF GA ea 6

United States Dept. of Justice v. Reporters Committee

for Freedom of the Press, 489 U.S. 749 (1989) ...... 4,5

Whalen v. Roe, 429 U.S. 589 (1977).................. a

Statutes Crrep:

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ST Sa 0” SSR ae RB Ss el ea 1, 2, 6, 7,9

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TABLE OF AUTHORITIES — Continued

Page

REGULATIONS CITED:

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Rutes Crrep:

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WS. Dee Fe ae sid ai 6h chs 6S cs vee as 6, 8, 10

JD. SU Gat Bie Da cen dn ae ce hk baad ages owe endnns<> 9

APPENDICES

Appendix A — Opinion of the United States Court

of Appeals for the Sixth Circuit (filed June 25,

bg SUE RE PEUT ES COW PERV EET Peas s PETE eT ee App. 1

Appendix B - Memorandum of the United States

District Court for the Eastern District of Tennes-

see at Chattanooga (filed September 12,

SPORES s 5 5ds Cnsis ss Ch paewh ARAS EAS UNARA RA Senses App. 19

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit has been reported at 87 F.3d 176 (6th Cir.

1996), petition for cert. filed, 65 U.S.L.W. 3267 (U.S. Sept.

23, 1996) (No. 96-464). For the convenience of this Court,

all citations to the opinion will be to Appendix A, at App.

1. The unpublished Memorandum of that court is repro-

duced at Appendix B, at App. 19.

+

STATEMENT OF THE CASE

Petitioner filed a Complaint in the United States Dis-

trict Court for the Eastern District of Tennessee, Southern

Division at Chattanooga, alleging that in June 1992, a

private citizen asked Respondent George W. Rogers,

Sheriff of McMinn County, Tennessee, to check any

records that might indicate whether the Plaintiff had ever

been arrested. The Petitioner further alleged that Sheriff

Rogers not only performed a “local search” but requested

arrest information from a National Crime Information

Center (“NCIC”) computer; subsequently Sheriff Rogers

conveyed whatever arrest information that he obtained

from these searches to the private citizen who had origi-

nally requested this information. The Petitioner requested

relief under 42 U.S.C. § 1983 for violation of the Peti-

" tioner’s federal civil rights; under 42 U.S.C. § 3789g pur-

suant to an implied right of privacy; and for violations of

“State and federal common law rights to privacy.”

In lieu of filing an Answer, Respondents George W.

Rogers, in his capacity as Sheriff of McMinn County, and

McMinn County, Tennessee (“Respondents”) filed in

early November 1993 a motion to dismiss the Complaint

in its entirety. The Petitioner responded to the motion to

dismiss on or about November 22, 1993 after asking for,

and receiving, an extension of time in which to respond

to the Respondents’ motion to dismiss. In the Petitioner's

response to the motion to dismiss, the Petitioner pro-

ceeded to raise and argue several bases for denying the

Respondents’ motion to dismiss: (1) whether the Peti-

tioner could proceed under 42 U.S.C. § 1983 for violations

of 42 U.S.C. § 3789g; and (2) whether there is a compre-

hensive set of remedies in 42 U.S.C. § 3789g that pre-

cludes finding an implied private cause of action in 42

U.S.C. § 3789g. JA 26-34.!

After more than ten (10) months from the time that the

Petitioner’s response to the motion to dismiss was first

filed, the District Court dismissed all of the Petitioner’s

claims against the Respondents; the trial court also dis-

missed the Petitioner’s claims against Respondent George

W. Rogers in his individual capacity. JA 21, 52. The fed-

eral district court ruled that the Petitioner could not

prove any set of facts consistent with his allegations that

would entitle Petitioner to any relief, on the following

claims: (1) the claim under 42 U.S.C. § 1983 for violation

of 42 U.S.C. § 3789g; (2) the direct claim under 42 U.S.C.

§ 3789g based on an implied right of action; (3) a federal

constitutional claim, which exists directly and pursuant

' to 42 U.S.C. § 1983; and (4) a claim under the Tennessee

state constitution. (App. 19-21).

1 The Joint Appendix filed with the United States Court of

Appeals for the Sixth Circuit is referred to as “JA” followed by

the respective pages referred to therein.

On appeal, the federal appellate court considered

each of the grounds of dismissal stated by the trial court,

as well as the Petitioner’s argument that dismissal of all

the Petitioner’s claims was improper. (App. 1, 3, 17).

After considering all of the legal arguments raised by the

Petitioner; after considering the factual allegations made

by the Petitioner in his Complaint; and after construing

the Complaint “in the light most favorable to the [Peti-

tioner], accept[ing] all factual allegations as true, and

determin[ing] whether the [Petitioner] undoubtedly can

prove no set of facts in support of his claims that would

entitle him to relief,” (App. 4), the federal appeals court

affirmed the trial court’s dismissal of the Petitioner’s

Complaint. (App. 1, 18).

REASONS FOR DENYING THE WRIT

I.

THERE IS NO CONSTITUTIONAL CLAIM AVAIL-

ABLE TO THE PLAINTIFF BECAUSE THERE IS NO

STATE OR FEDERAL CONSTITUTIONAL RIGHT TO

PRIVACY IN A PERSON’S PUBLIC CRIMINAL

RECORD. |

The Petitioner seeks to assert a constitutional protec-

tion for public criminal records under the rubric of a

“privacy interest.” Such an asserted right, however, is not

one of those that are “implicit in the concept of ordered

liberty.” J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981).

See Whalen v. Roe, 429 U.S. 589, 598-600 (1977). The Peti-

tioner cannot demonstrate that such records traditionally

have been given constitutional protection, and mis-

construes the case law that he cites in support of such a

proposition.

For example, in the case of United States Department of

Justice v. Reporters Committee for Freedom of the Press, 489

U.S. 749 (1989), the Petitioner claims to find support for

the extension of constitutional protections to crime infor-

mation in “rap sheets.” (Petition at 7-9). In the first place,

there is nothing in the record in the case at bar, either that

was before the trial court or the court of appeals, that

gives any indication that the extent of information

allegedly obtained by Sheriff Rogers was similar to the

information in the “rap sheets” in Reporters Committee;

there is merely the gratuitous comment by the Petitioner

that the information is equivalent. (Petition at 8).

Further, use of the Reporters Committee case as a basis

for review by this Court, on the grounds that the case at

bar presents a question that was “reserved” in the Repor-

ters Committee case, is inappropriate as well as disin-

genuous of the Petitioner. The footnote referred to by the

Petitioner as supporting “reservation” of the constitu-

tional question of “an individual’s interest in privacy” is

taken out of context. In fact, read in its entirety, the

footnote referred to by the Petitioner rejects the notion

that there is any federal constitutional protection for a

person’s privacy interest in criminal arrest information.

(Petition at 8-9). See Reporters Committee, 489 U.S. at 762

n.13 (citing Cox Broadcasting Corp v. Cohn, 420 U.S. 469

(1975) and Paul v. Davis, 424 U.S. 693 (1976) for the

proposition that no constitutional privacy right is impli-

cated in publicizing information from arrest reports).

Indeed, Reporters Committee is based on federal statutory

protections similar to those relied upon by the court of

appeals in the case at bar and by the Seventh Circuit in

Polchowski v. Gorris, 714 F.2d 749 (7th Cir. 1983). See

Reporters Committee, 489 U.S. at 751 (citing 5 U.S.C.

§ 552(b)). The decision by the court of appeals in the case

at bar therefore does not conflict with relevant decisions

of this Court.

The case of Whalen v. Roe, 429 U.S. 589 (1977), is cited

by the Petitioner to support his argument that this Court

needs to explore constitutional parameters of revealing

criminal arrest information. (Petition at 10-11). Contrary

to the Petitioner’s argument, however, this Court did not

reserve a constitutional question regarding arrest infor-

mation that is available through public sources; rather,

Whalen, unlike the case at bar, dealt with the release of

“accumulated private data” — specifically, the names of

persons who received prescriptions for certain types of

drugs that could be used illegally - which is not the type

of public information at issue here. Whalen, 429 U.S. at

591, 605.

The case of Fadjo v. Coon, 633 F.2d 1172 (5th Cir. Unit

B 1981), does not stand for the proposition cited by the

Petitioner, to-wit, that release of arrest records is a consti-

tutional violation. In Fadjo, the plaintiff was subpoenaed

to testify and provide documents in connection with an

investigation by the state attorney general; the plaintiff

provided “information concerning ‘the most private

details of his life’ ” in exchange for assurances that “his

testimony was absolutely privileged under [state] law

and that the contents of his testimony would be revealed

to no one.” Fadjo, 633 F.2d at 1174. Thus, it was the nature

of the information that was important in Fadjo, not the

fact, as the Petitioner argues, that the information was

given in a criminal investigation. In the case at bar, there

was no allegation before either the trial court or the court

of appeals that the type of information obtained was

anything other than criminal history information. Fur-

ther, the dictum in Fadjo in which Tosh v. Buddies Super-

markets, Inc., 482 F.2d 329 (Sth Cir. 1973) is distinguished

is inapposite to this case. There is no basis for constitu-

tional review by this Court of well-settled law.

In summary, there is no important question of federal

law raised bw the Petitioner with respect to this issue that

needs to be settled by this Court. Nor does misinterpreta-

tion of case law by the Petitioner create a basis for grant-

ing a writ of certiorari. The Petition for a Writ of

Certiorari should be denied.

THE COURT OF APPEALS APPLIED THE PROPER

RULE OF LAW TO DETERMINE THAT THE PETI-

TIONER DID NOT HAVE AN ENFORCEABLE RIGHT

UNDER 42 U.S.C. § 3789g.

The Petitioner recognizes that the court of appeals

correctly used the three-part test to determine whether a

federal statute creates enforceable rights. (Petition at 13,

n.2). The Petitioner simply argues that the court of

appeals misapplied the applicable law. (Petition at 17).

This is not a basis for grant of writ of certiorari. U.S.

Sup. Ct. R. 10. The trial court and the court of appeals

both applied the proper statutes and regulations to the

Petitioner. Of the sections under 42 U.S.C. § 3789g that

might be available to the Petitioner, only 42 U.S.C.

§ 3789g(b) is applicable. Although the Petitioner notes

that “§ 3789g protects ‘the privacy of a class of individ-

7

uals from disclosure by any person,’” the Petitioner

quotes the text from Polchowski v. Gorris, 714 F.2d 749 (7th

Cir. 1983) out of context: the section in question that the

Petitioner cites refers not to the entire text of § 3789g, but

only to § 3789g(a), which deals with “research or statisti-

cal information” and which, as defined in 28 C.F.R. § 22.2,

does not apply to the Petitioner. (Petition at 13).

The Petitioner alleged only that the Respondents

checked the arrest records of the Petitioner and passed on

information about the Petitioner’s criminal record. JA 6.

This places the Petitioner, as the court of appeals cor-

rectly stated, within the purview of § 3789g(b); and com-

pliance with this section is with the federal Office of

Justice Programs. The court of appeals correctly stated

that the Petitioner was precluded from maintaining an

“enforceable right” under the only section of § 3789g that

applied to him.

The appropriate law was correctly applied by the

courts below. Consequently, the Petition for a Writ of

Certiorari must be denied.

Il.

THE COURT OF APPEALS APPLIED THE PROPER

RULE OF LAW TO FIND THAT THE PLAINTIFF HAS

NO REMEDY UNDER 42 U.S.C. § 1983.

The Petitioner acknowledges that the court of

appeals used the appropriate case law in setting forth the

test to determine whether a federal statute by its own

terms forecloses enforcement under 42 U.S.C. § 1983.

(Petition at 18, n.4). The Petitioner, however, only argues

that the court of appeals misapplied the applicable law.

Although the Petitioner asserts that the court of

appeals misconstrued applicable regulations, this is not

the case. Under 28 C.F.R. § 20.20(c), criminal history

information that can be released includes the type of

information that is listed under 28 C.F.R. § 20.20(b):

among other types of information, “court records of pub-

lic judicial proceedings”; “published court or administra-

tive opinions or public judicial, administrative or

legislative proceedings”; and “records of traffic offenses.”

This type of information encompasses arrest records,

which would be public court records or judicial or admin-

istrative proceedings. For the Petitioner to state that such

information, including arrest records, does not “include

criminal history information stored in the NCIC data

base,” when by definition “criminal history information”

does include such information, 42 U.S.C. § 3791(a)i9), is

simply not correct and is misleading to this Court. (Peti-

tion at 16-17).

The court of appeals applied properly stated law.

Under Supreme Court Rule 10, there is no reason for this

Court to review same. Consequently, the Petition for a

Writ of Certiorari should be denied.

IV.

THERE IS NO CONFLICT AMONG FEDERAL

COURTS OF APPEALS ON THE QUESTION OF AN

IMPLIED PRIVATE CAUSE OF ACTION UNDER 42

U.S.C. § 3789g.

One basis for grant of a petition for writ of certiorari

is a conflict between federal courts of appeals that have

decided “the same important matter.” U.S. Sup. Ct. R.

10(a). Such a basis, however, is utterly lacking in the

Petition in the case at bar.

Only one other federal court of appeals has decided

the question whether a person may bring a direct claim

for violation of 42 U.S.C. § 3789g. The United States Court

of Appeals for the Seventh Circuit, in Polchowski v. Gorris,

714 F.2d 749 (7th Cir. 1983), ruled that 42 U.S.C.

§ 3789g(b) does not create a direct, private cause of

action. That ruling was followed by the court of appeals

in the case at bar. (App. 10, 16-17).

In summary, there is no inherent contradiction or

inconsistency in the interpretation of 42 U.S.C. § 3789g

regarding an absence of implied private cause of action,

as developed through the common law methodology.

Thus, there is no need for the United States Supreme

Court to interfere with the development of the case law in

this area. E.g., Braxton v. United States, 500 U.S. 344, 347

(1991).

10

V.

ANY ERROR IN DISMISSING THE COMPLAINT WAS

HAKMLESS BECAUSE THE PLAINTIFF NEITHER

ALLEGED, NOR AMENDED THE COMPLAINT TO

ALLEGE, FACTS THAT WOULD ENTITLE HIM TO

RELIEF, AND HIS CLAIMS WERE THUS FUTILE.

The Petitioner’s argument regarding dismissal of all

of his claims is essentially that the federal court of

appeals misapplied the proper rule of law. As such, this is

not a basis for grant of writ of certiorari. U.S. Sup. Ct. R.

10.

The Petitioner correctly cites the controlling law on

this question, which is that when faced with a motion to

dismiss, a plaintiff must “be given a chance to amend the

complaint or respond to notice of an impending dismissal

for failure to state a claim.” Morrison v. Tomano, 755 F.2d

515, 517 (6th Cir. 1985) (citing Conley v. Gibson, 355 U.S. 41

(1957)). What the Petitioner omits to tell this Court is that

he was given a chance to amend the Complaint — in point

of fact, the Petitioner had over ten months in which to

amend the Complaint, from the time that the Respon-

dents filed their motion to dismiss the Complaint, until

the trial court dismissed it. JA 9-10, 52. The Petitioner,

however, chose to do nothing.

Further, as the trial court appropriately noted, the

motion to dismiss asked that the entire Complaint be dis-

missed, not just a single count. JA 9. If the trial court

chooses to find additional reasons for dismissal and acts

on those, that is within the discretion of the trial court.

(App. 17-18). Mann v. Conlin, 22 F.3d 100, 103 (6th Cir.

1994); Fed. R. Civ. P. 78. The court of appeals so found,

and this issue does not need further review by this Court.

11

The Respondents would finally note that the Peti-

tioner is being less than forthright with this Court by

stating, in the “Questions Presented,” that the Petitioner

“did not receive prior notice of the intention of the court

to dismiss and the opportunity to respond... . ” (Petition

at i). As noted above, the Petitioner was put on clear

notice in November 1993 that the Respondents sought

dismissal of the entire Complaint; further, the Petitioner

had ample opportunity to respond or to amend his Com-

plaint pursuant to applicable case law. There is no basis

here for granting a petition for writ of certiorari.

+

CONCLUSION

The Respondents respectfully submit that this case

presents no issue of law or fact that justifies review by the

United States Supreme Court. The Petitioner has had

appropriate review at both the federal district and appel-

late court levels. The decisions of these courts are proper,

and the Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

JoHN W. Baker, JR.

Counsel of Record

Geratp L. GuL-ey, Jr.

Attorneys for Respondents

Baker, McREYNOLDs, ByrNg,

O’Kane, SHEA & TOWNSEND

P.O. Box 1708

Knoxville, Tennessee 37901

(423) 637-5600

App. 1

APPENDIX A

No. 94-6399

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jackie Ray CuIne,

Plaintiff-Appellant,

5 On Appear from the

United States District

Court for the Eastern

District of Tennessee

Georce W. Rocers,

individually and in his

capacity as Sheriff

of McMinn County and

McMinn County, TENNESSEE, )

i

Defendants-Appellees. )

Decided and Filed June 25, 1996

Before: MERRITT, Chief Judge; BATCHELDER, Cir-

cuit Judge; DOWD, District Judge.*

ALICE M. BATCHELDER, Circuit Judge. The plain-

tiff-appellant appeals from the district court’s judgment

dismissing with prejudice, pursuant to Fed. R. Civ. P.

12(b)(6), all his claims against both defendants in this

case. For the reasons that follow, we affirm.

* The Honorable David D. Dowd, Jr., United States District

Judge for the Northern District of Ohio, sitting by designation.

App. 2

The plaintiff-appellant, Jackie Ray Cline (“Cline”),

alleges that in 1992, a private citizen contacted the Sher-

iff’s Department of McMinn County, Tennessee (“the

County”), and asked Sheriff George Rogers to check

Cline’s arrest record. According to Cline, Rogers searched

state and local records and requested a computer search

of National Crime Information Center (“NCIC”) records

of the Federal Bureau of Investigation (“FBI”). Cline

alleges that Rogers disclosed to the private citizen the

information Rogers obtained regarding Cline’s criminal

history, in violation of both Tennessee and federal law.

Cline filed this lawsuit against Rogers, individually

and in his official capacity as sheriff. Cline also named

the County as a defendant, alleging that improper

searches of criminal records is “a routine and customary

practice in McMinn County,” that the County “lacks ade-

quate controls to ensure that access to criminal records is

for authorized purposes only,” that the County did not

have in place an adequate system to detect misuse of

criminal records, that the County had provided inade-

quate training to prevent such abuse, and that the County

had “been indifferent to the civil rights of private citizens

by allowing such abuses to continue.”

Cline’s complaint sought damages under 42 U.S.C.

§ 1983 for violation of his federal civil rights. The com-

plaint also asserted an implied private right of action

under 42 U.S.C. § 3789g. Finally, the complaint alleged

“violations of State and federal common law rights to

privacy.” Rather than answering the complaint, the

App. 3

defendant County filed its motion “to dismiss the Com-

plaint against it on the ground that the Complaint fails to

state a claim upon which relief can be granted against

this Defendant in that 42 U.S.C. § 3789(g) [sic] does not,

as a matter of law, provide a private right of action to

[Cline] to be maintained under 43 [sic] U.S.C. § 1983.”

The defendant Rogers answered the complaint.

Rogers apparently did not file a separate motion to dis-

miss. After Cline’s counsel sought and received an exten-

sion of time to respond to the County’s motion to dismiss

the complaint, the plaintiff filed a response. Following

motions by Cline’s counsel for a continuance, the district

court ruled on the County’s motion to dismiss the com-

plaint. In its memorandum of opinion, the court

explained that all of Cline’s claims against both Sheriff

Rogers and the County were dismissed with prejudice,

pursuant to Fed. R. Civ. P. 12(b)(6), because Cline

“undoubtedly cannot prove any set of facts consistent

with his allegations which would entitle him to relief, i.e.,

the plaintiff is not entitled to relief despite the facts as

pleaded.” Further, the court held that sua sponte dismissal

with respect to defendant Rogers was appropriate pur-

suant to Rule 12(b)(6) and this Court’s precedent, citing

Morrison v. Tomano, 755 F.2d 515 (6th Cir. 1985). This

timely appeal followed.

II.

We review de novo the district court’s dismissal for

failure to state a claim upon which relief can be granted.

Taxpayers United for Assessment Cuts v. Austin, 994 F.2d

291, 296 (6th Cir. 1993). The court must construe the

App. 4

complaint in the light most favorable to the plaintiff,

accept all factual allegations as true, and determine

whether the plaintiff undoubtedly can prove no set of

facts in support of his claims that would entitle him to

relief. In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th

Cir. 1993).

A. The Federal Constitutional Claim

There is no violation of the United States Constitu-

tion in this case because there is no constitutional right to

privacy in one’s criminal record. Nondisclosure of one’s

criminal record is not one of those personal rights that is

“fundamental” or “implicit in the concept of ordered

liberty.” See Whalen v. Roe, 429 U.S. 589 (1977). In Whalen,

the Supreme Court distinguished fundamental privacy

interests in “matters relating to marriage, procreation,

contraception, family relationships, and child rearing and

education” and “individual interest in avoiding dis-

closure of personal matters,” see id. at 599, finding no

general constitutional right to nondisclosure of private

data, see id. at 608-09 (Stewart, J., concurring).

Moreover, one’s criminal history is arguably not a

private “personal matter” at all, since arrest and convic-

tion information are matters of public record. See Paul v.

Davis, 424 U.S. 693 (1976) (rejecting a similar claim based

on facts more egregious than those alleged here); see also

].P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981) (interpreting

Paul in light of subsequent Supreme Court cases (Whalen

and Nixon v. Administrator, 433 U.S. 425 (1977)) and hold-

ing that there is no general right to a constitutional bal-

ancing of government action against individual privacy

Te me ee

App. 5

absent personal rights that are “fundamental” or

“implicit in the concept of ordered liberty”). Although

there may be a dispute among the circuit courts regarding

the existence and extent of an individual privacy right to

nondisclosure of “personal matters,” see Slayton v. Will-

ingham, 726 F.2d 631 (10th Cir. 1984); Fadjo v. Coon, 633

F.2d 1172, 1176 (5th Cir. Unit B 1981) (both opining that

Paul has been at least partially overruled by the Supreme

Court’s decisions in Whalen and Nixon), this circuit does

not recognize a constitutional privacy interest in avoiding

disclosure of, e.g., one’s criminal record. See DeSanti, 653

F.2d at 1090 (regarding disclosure of juvenile delinquents’

“social histories”); see also Doe v. Wigginton, 21 F.3d 733

(6th Cir. 1994) (disclosure of inmate’s HIV infection did

not violate constitutional right of privacy).

Because there is no privacy interest in one’s criminal

record that is protected by the United States Constitution,

Cline could prove no set of facts that would entitle him to

relief; therefore, the district court correctly dismissed this

claim.

B. State Constitutional Claim

The plaintiff can state no claim of a state constitu-

tional violation in this case because Tennessee does not

recognize a private cause of action for violations of the

Tennessee Constitution. See Lee v. Ladd, 834 S.W.2d 323

(Tenn. Ct. App.), appeal denied, (Tenn. 1992). There, the

Tennessee Court of Appeals, searching for authority to

support or refute the plaintiff’s claim of an implied cause

of action for violations by a local police officer of her civil

rights under the Tennessee Constitution, stated:

App. 6

We have held . . . that we know of no authority

for the recovery of damages for a violation of

the Tennessee Constitution by a state officer. See

Bennett v. Horne, 1989 WL 86555 (No. 89-31-II,

Tenn. Ct. App. ... August 2, 1989). So far as we

are able to determine, the Tennessee courts have

not extended the rationale of Bivens [v. Six

Unknown Named Agents of Federal Bureau of Nar-

cotics, 403 U.S. 388 (1971)] to give a state cause

of action against a police officer for violating a

person’s civil rights.

Lee, 834 S.W.2d at 325. Therefore, the district court prop-

erly dismissed this claim.

C. Direct Claim for Violation of 42 U.S.C. § 3789g

: F

The plaintiff claims that the defendants violated

enforceable privacy rights created in him by Congress

under the Justice System Improvement Act of 1979, 42

U.S.C. §§ 3701-3797 (“the Act”). Specifically, Cline claims

that the defendants violated 42 U.S.C. § 3789g, which

provides for confidentiality of information under the Act.

That section has four subsections: § 3789g(a) prohibits the |

unauthorized dissemination of research or statistical |

information;! § 3789g(b) requires the Office of Justice

1 This subsection states:

Research or statistical information; immunity from

process; prohibition against admission as evidence

or use in any proceedings

Except as provided by Federal law other than this

chapter, no officer or employee of the Federal

eT ee ee RR TT To eee TN

App. 7

Programs to safeguard the accuracy and security of crimi-

nal history information;? § 3789g(c) requires that criminal

Government, and no recipient of assistance under the

provisions of this chapter shall use or reveal any

research or statistical information furnished under

this chapter by any person and identifiable to any

specific private person for any purpose other than the

purpose for which it was obtained in accordance with

this chapter. Such information and copies thereof

shall be immune from legal process, and shall not,

without the consent of the person furnishing such

information, be admitted as evidence or used for any

purpose in any action, suit, or other judicial,

legislative, or administrative proceedings.

42 U.S.C. § 3789¢(a).

2 This subsection states:

Criminal history information; disposition and

arrest data; procedures for collection, storage,

dissemination, and current status; security and

privacy; availability for law enforcement, criminal

justice, and other lawful purposes; automated

systems: review, challenge, and correction of

information

All criminal history information collected, stored,

or disseminated through support under this chapter

shall contain, to the maximum extent feasible,

disposition as well as arrest data where arrest data is

included therein. The collection, storage, and

dissemination of such information shall take place

under procedures reasonably designed to insure that

all such information is kept current therein; the Office

of Justice Programs shall assure that the security and

privacy of all information is adequately provided for

and that information shall only be used for law

enforcement ard criminal justice and other lawful

purposes. In addition, an individual who believes

that criminal history information concerning him

App. 8

intelligence information be handled in conformity with

policy standards prescribed by the Office of Justice Pro-

grams;> § 3789g(d) states that “[a]ny person violating the

provisions of this section, or of any rule, regulation, or

order issued thereunder, shall be fined not to exceed

$10,000, in addition to any other penalty imposed by

law.”

The district court correctly found that the only sub-

section of § 3789g even arguably applicable in this case is

§ 3789g(b), which addresses the confidentiality of crimi-

nal history information. Subsection 3789g(a) is inapplica-

ble because that section deals with “research or statistical

information.” That term is not defined in the statute;

contained in an automated system is inaccurate,

incomplete, or maintained in violation of this chapter,

shall, upon satisfactory verification of his identity, be

entitled to review such information and to obtain a

copy of it for the purpose of challenge or correction.

42 U.S.C. § 3789g(b).

3 This subsection states:

Criminal intelligence systems and information;

prohibition against violation of privacy and

constitutional rights of individuals

All criminal intelligence systems operating

through support under this chapter shall collect,

maintain, and disseminate criminal intelligence

information in conformance with policy standards

which are prescribed by the Office of Justice

Programs and which are written to assure that the

funding and operation of these systems furthers the

purpose of this chapter and to assure that such

systems are not utilized in violation of the privacy

and constitutional rights of individuals.

42 U.S.C. § 3789g(c).

App. 9

however, the Department of justice regulations define the

term to mean “any information which is collected during

the conduct of a research or statistical project and which

is intended to be utilized for research or statistical pur-

poses.” 28 C.F.R. § 22.2(d). “Research or statistical pro-

ject” is defined as “any program, project, or component

thereof which is supported in whole or in part with funds

appropriated under the Act and whose purpose is to

develop, measure, evaluate, or otherwise advance the

state of knowledge in a particular area.” 28 C.F.R.

§ 22.2(c). Cline’s complaint does not allege that the infor-

mation Sheriff Rogers allegedly disclosed to a private

citizen was information about Cline that had been col-

lected during a research or statistical project supported

with funds appropriated under the Act. Subsection

3789g(a) is therefore inapplicable in this case.

Similarly, § 3789g(c) is inapplicable here, because that

subsection deals with “criminal intelligence systems and

information.” Those terms also are not defined in the

statute but are defined by the Justice Department's regu-

lations. “Criminal intelligence system” means “the

arrangements, equipment, facilities, and procedures used

for the receipt, storage, interagency exchange or dissem-

ination, and analysis of criminal intelligence informa-

tion.” 28 C.F.R. § 23.3(b)(1). “Criminal intelligence

information” is defined as

data which has been evaluated to determine that

it:

(i) Is relevant to the identification of and

the criminal activity engaged in by an individ-

ual who or organization which is reasonably

nes ei of involvement in criminal activity,

an

App. 10

(ii) meets criminal intelligence system sub-

mission criteria[.]

28 C.F.R. § 23.3(b)(3). “Criminal activity” includes, but is

not limited to, “loan sharking, drug trafficking, traffick-

ing in stolen property, gambling, extortion, smuggling,

bribery, and corruption of public officials[.]” 28 C.FR.

§ 23.2. The complaint in this case does not allege facts to

support a claim that the defendants improperly disclosed

“criminal intelligence information” regarding the plain-

tiff; therefore, subsection (c) of § 3789g is inapplicable.

2.

What the plaintiff's complaint does allege is that

Sheriff Rogers improperly disclosed Cline’s arrest record.

Arrest records fall under § 3789g(b), which addresses

criminal history information. The definitions section of

the statute provides that

“criminal history information” includes records

and related data, contained in an automated or

manual criminal justice informational system,

compiled by law enforcement agencies for the

purpose of identifying criminal offenders and

alleged offenders and maintaining as to such

persons records of arrests, the nature and dispo-

sition of criminal charges, sentencing, confine-

ment, rehabilitation, and release[.]

42 U.S.C. § 3791(a)(9). Although Cline alleges that the

defendants improperly disclosed information regarding

his arrest record, Cline may not maintain a private right

of action under § 3789g(b), because § 3789g(b) does not

create a direct, private right of action. See Polchowski v.

Gorris, 714 F.2d 749, 751 (7th Cir. 1983). In addition,

craic

App. 11

subsection (b) imposes no obligations upon these defen-

dants; rather, the subsection mandates that the Office of

Justice Programs, a federal agency, “assure that the secu-

rity and privacy of all information is adequately provided

for and that information shall only be used for law

enforcement and criminal justice and other lawful pur-

poses.” 42 U.S.C. § 3789g(b). The subsection does entitle

an individual to review and challenge inaccurate or

incomplete criminal history information concerning the

individual; however, Cline does not allege that the infor-

mation regarding his arrest record that the defendants

allegedly disclosed was inaccurate or incomplete. Even if

that were the case, Cline’s cause of action in that regard

would be against the responsible federal agency, not state

or local authorities. See id.

3.

Cline argues that he can bring a direct claim under 42

U.S.C. § 3789g(d), the penalty provision, because it makes

reference to “any rule, regulation, or order issued” under

the section, and the regulations of the Department of

Justice prohibit the misuse of criminal history informa-

tion by anyone having authorized access to such informa-

tion. See 28 C.F.R. § 20.21(c)(2) (“No agency or individual

shall confirm the existence or nonexistence of criminal

history record information to any person or agency that

would not be eligible to receive the information itself.”).

However, even if, arguendo, the state and local authorities

are considered an “agency” within the meaning of the

Act, the regulations also provide: “Nothing in these regu-

lations prevents . . . a criminal justice agency . . . from

confirming prior criminal history record information to

App. 12

members of the news media or any other person, upon

specific inquiry as to whether a named individual was

arrested, detained, indicted, or whether an information or

other formal charge was filed... . ” 28 C.F.R. § 20.20(c)

(emphasis added). Again, it is noteworthy that Cline does

not allege that the information Sheriff Rogers allegedly

disclosed was incorrect.

Congressional intent is the touchstone of whether

private enforcement of a statute is permitted. Since the

late 1970s, Congress has been on notice that, if it intends

to create a private right of action, it had better do so

expressly in the statute. The Supreme Court, mindful of

separation of powers concerns, appears to have modified

the four-part analysis of Cort v. Ash, 422 U.S. 66 (1975),

upon which Cline relies, in favor of an inquiry regarding

congressional intent: Did Congress intend to provide a

private right of action under the statute, or did Congress

intend to foreclose private enforcement of the statute?

The Supreme Court has been increasingly reluctant to

find an implied cause of action where Congress had the

opportunity to create a private right explicitly but did not

do so. See Cannon v. University of Chicago, 441 U.S. 677

(1979); Touche Ross & Co. v. Redington, 442 U.S. 560 (1979).

Accord Herman & MacLean v. Huddleston, 459 U.S. 375

(1983) (private right of action inferred because it had

been consistently recognized for more than 35 years);

Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S.

353 (1982) (private cause of action recognized because

fact that Congress had amended the statute twice without

speaking to the question led to compelling inference that

Congress intended to preserve implied private remedy

previously recognized).

App. 13

In this case, the statute at issue was part of the Justice

System Improvement Act, Pub.L. 96-157, enacted Decem-

ber 27, 1979, at the end of the very year in which the

Supreme Court issued its decisions in Cannon and Touche

Ross, cautioning Congress that it must make explicit its

intent to provide a private right of action, else the courts

would not imply one. It is an inescapable conclusion that

Congress, enacting this statute soon after having been so

admonished, did not intend to create a private right of

action for violation of 42 U.S.C. § 3789g. Indeed, the fact

that Congress created a generalized administrative

scheme, complete with a penalty provision in subsection

(d) and the possibility of redress against federal agencies

through the Privacy Act, 5 U.S.C. § 552a, is further proof

of congressional intent not to create a private right of

enforcement of this statute. The district court properly

dismissed Cline’s direct claim under 42 U.S.C. § 3789g.

D. Claims Under 42 U.S.C. § 1983

In Maine v. Thiboutot, 448 U.S. 1, 4-6, 100 S.Ct. 2502,

2504-05 (1980), the Supreme Court established a § 19834

* “Civil action for deprivation of rights:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1983 (emphasis added).

App. 14

remedy for violations of a federal statute, see Suter v.

Artist M., __. U.S. , 4 112 S.Ct. 1960, 13966 (1992)

(citing Thiboutot), but since then has held that no such

remedy exists if “(1) the statute does not create enforce-

able rights, privileges, or immunities within the meaning

of § 1983, or (2) Congress has foreclosed such enforce-

ment of the statute in the enactment itself.” Wilder v.

Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 2517

(1990) (internal quotation marks and brackets omitted)

(quoting Wright v. Roanoke Redevelopment & Hous. Auth.,

479 U.S. 418, 423, 107 S.Ct. 766, 770 (1987)); Wright, 479

U.S. at 423, 107 S.Ct. at 770 (recognizing these two excep-

tions) (citing Pennhurst State School & Hosp. v. Halderman,

451 U.S. 1, 101 S.Ct. 1531 (1981); Middlesex County Sew-

erage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, [19,]

101 S.Ct. 2615[, 2626] (1981) (declining to consider

whether the acts in question created rights, privileges or

immunities under § 1983 when Congress had foreclosed a

§ 1983 remedy under the acts)), quoted in Suter, ____ U.S. at

a» 112 §.Ct. at 1366.5

To determine whether the first of these two excep-

tions applies, the Court has developed a three part test:

5 Reading only Suter could lead one to believe a § 1983

action is unavailable as a remedy for a violation of a federal

statute only “where Congress has foreclosed such enforcement

of the statute in the enactment itself and where the statute did

not create enforceable rights, privileges or immunities[,]” __

U.S. at ___, 112 S.Ct. at 1366 (emphasis added) (quoting Wright),

i.e., only where both conditions are met. Wilder, Wright, and

Middlesex County reveal that such a belief would be mistaken.

The presence of either exception does away with a § 1983 claim.

App. 15

(1) Was the provision in question intended to

benefit the plaintiff?

(2) Does the statutory provision in question

create binding obligations on the defendant gov-

ernmental unit, rather than merely expressing

congressional preference?

and (3) Is the interest the plaintiff asserts speci-

fic enough to be enforced judicially, rather than

being “vague and amorphous”?

Wayne v. Village of Sebring, 36 F.3d 517, 529 (6th Cir. 1994)

(citing Wilder, 496 U.S. at 509, 110 S.Ct. at 2517), cert.

denied, __ U.S. __, 115 S.Ct. 2000 (1995); Wood v.

Tompkins, 33 F.3d 600, 604-05 (6th Cir. 1994) (citing Wil-

der); see also “Tony” L. ex rel. Simpson v. Childers, 71 F.3d

1182, 1188 (6th Cir. 1995) (citing Wilder), cert. denied, __

U.S. __, __ S.Ct. ___ (1996); Loschiavo v. City of Dearborn,

33 F.3d 548, 551 (6th Cir. 1994) (citing Wilder), cert. denied,

—_ US. __, 115 S.Ct. 1099 (1995).6 When a statute

imposes no direct obligations on the states, and instead

places “the onus of compliance with the statute’s substan-

tive provisions on the federal government,” there is no

§ 1983 claim. Audette v. Sullivan, 19 F.3d 254, 256-57 (6th

Cir. 1994) (quoting Stowell v. Ives, 976 F.2d 65, 70 (1st Cir.

1992)); Clifton v. Schafer, 969 F.2d 278, 283-85 (7th Cir.

1992),

® A plaintiff bears the burden of proving that the first

exception does not apply, while a defendant bears the burden of

proving that the second exception does apply. Wayne, 36 F.3d at

529 (citing Golden State Transit Corp. v. City of Los Angeles, 493

U.S. 103, 106, 107, 110 S.Ct. 444, 448, 449 (1989)); Wood, 33 F.3d at

605 (citing Golden State Transit).

App. 16

As explained supra, only subsection (b) of 42 U.S.C.

§ 3789¢ is potentially implicated by the allegations of this

plaintiff's complaint, and that subsection imposes com-

pliance obligations only on a federal agency, not upon

these defendants. Further, the purpose of § 3789g(b) is to

provide for the maintenance and accuracy of criminal

history information, with a specific provision included

entitling “an individual who believes that criminal his-

tory information concerning him contained in an auto-

mated system is inaccurate, incomplete, or maintained in

violation” of the statute “to review such information and

to obtain a copy of it for the purpose of challenge or

correction.” 42 U.S.C. § 3789g(b). The only privately

enforceable right created by this subsection of the statute

in an individual such as Cline is the right to receive a

copy of criminal history information maintained pur-

suant to the statute for his review and possible correction

in the event of erroneous information. Title 42 U.S.C.

§ 3789g does not provide a privately-enforceable federal

right to nondisclosure of accurate criminal history infor-

mation; therefore, Cline’s § 1983 claims fail. Rather than

creating a federal right which may be privately enforced

either directly under the statute or through an action

under § 1983, Congress created an administrative scheme

intended to assure that criminal history information,

criminal intelligence information, and research and statis-

tical information be used only for the purposes for which

it was collected. The remedy for violations is provided by

the statute itself, see 42 U.S.C. § 3789g(d), and, with

respect to federal agencies, by the Privacy Act of 1974, 5

U.S.C. § 552a(a)(1). The provision of these remedies is

further proof that Congress intended to foreclose private

App. 17

enforcement of § 3789g. See Polchowski, 714 F.2d at 752.

The district court properly dismissed Cline’s § 1983

claims.

IIl.

Finally, Cline argues that the district court was too

hasty in dismissing his complaint because “[v]ery little

discovery had been undertaken at the time,” the district

court assumed that only subsection (b) of § 3789g applied

in this case, and Cline might have discovered that the

defendants had actually violated another subsection, or

that “a contract existed between the Defendants and the

FBI — the agency that controls the NCIC data base - and

that he may have a cause of action under a contract

theory.” Of course, Cline’s complaint does not make such

allegations, and he appears to have made no effort to

amend it. Although “a complaint should not be dismissed

for failure to state a claim unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief,” see Conley v.

Gibson, 355 U.S. 41, 45-46 (1957), it is “not proper to

assume the [plaintiff could] prove facts [he] had not

alleged or that the defendants had violated applicable

laws in ways that had not been alleged.” Associated Gen.

Contractors v. California State Council of Carpenters, 459

U.S. 519, 526 (1983); Quality Foods de Centro America, S.A.

v. Latin American Agribusiness Dev. Corp., 711 F.2d 989, 995

(11th Cir. 1983); Brennan v. Chestnut, 777 F. Supp. 1469,

1472-73 (D. Minn. 1991), aff’d, 973 F.2d 644 (8th Cir. 1992).

Moreover, although Cline argues that the district

court’s dismissal of his complaint was “premature” and

App. 18

that he should have been afforded the benefit of oral

argument on the motion to dismiss, it was not an abuse of

the district court’s discretion to dismiss the complaint

under Rule 12(b)(6) without first hearing oral argument.

See Mann v. Conlin, 22 F.3d 100, 103 (6th Cir. 1994); Fed. R.

Civ. P. 78.

IV.

Because the plaintiff in this case can prove no set of

facts, consistent with his pleadings, that would entitle

him to relief on any of his claims, the district court did

not err in dismissing with prejudice the entire complaint

against both defendants. The district court’s judgment is

AFFIRMED.

App. 19

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

JACKIE RAY CLINE,

Plaintiff,

V. 1:93-cv-386

GEORGE W. ROGERS,

)

)

)

)

) .

INDIVIDUALLY and IN HIS (Filed

)

)

)

)

CAPACITY AS SHERIFF OF Sept. 12, 1994)

MCMINN COUNTY, and

MCMINN COUNTY,

Defendants.

MEMORANDUM

This action involves a county sheriff’s disclosure of

criminal history information about the plaintiff. The

plaintiff asserts claims under the U.S. Constitution, 42

U.S.C. § 3789g, 42 U.S.C. § 1983, and the Tennessee Con-

stitution. Before the Court is defendant McMinn County’s

motion to dismiss pursuant to Fed. R. Civ. P. 12b(6). For

the reasons that follow, McMinn County’s motion will be

GRANTED.

I. Facts

In late 1992, a private citizen went to the McMinn

County Sheriff’s Department and asked the sheriff,

defendant George Rogers, to check the criminal record of

the plaintiff, Jackie Ray Cline. Rogers allegedly searched

state and local records and requested a computer search

of Federal Bureau of Investigation records. According to

App. 20

Cline, Rogers disclosed the information he obtained on

Cline to the inquiring citizen. In complying with the

request for information on Cline, Rogers purportedly vio-

lated Tennessee Bureau of Investigation rules regarding

disclosure of criminal record information.

In this action Cline asserts five claims against Rogers

and McMinn County: (1) a claim under 42 U.S.C. § 1983

for violation of 42 U.S.C. § 3789g, (2) a claim under 42

U.S.C. § 3789g for violation of the same, (3) a claim under

42 U.S.C. § 1983 for violation of his constitutional right of

privacy, (4) a claim directly under the Constitution for

violation of his right of privacy, and (5) a claim for

violation of his right of privacy under the Tennessee

Constitution. McMinn County moves the Court to dis-

miss the plaintiff’s claims against it for failure to state a

claim upon which relief can be granted pursuant to Fed.

R. Civ. P. 12b(6).

II. Standard of Review

In considering a Fed. R. Civ. P. 12(b)(6) motion, the

Court regards all well-pleaded allegations in the com-

plaint as true, construing them in favor of the plaintiff.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jones v. City of

Carlisle, Ky., 3 F.3d 945, 947 (6th Cir. 1993), cert. denied, 114

S. Ct. 1218 (1994); Song v. City of Elyriz, Ohio, 985 F.2d 840,

843 (6th Cir. 1993); Collins v. Nagle, 892 F.2d 489, 493 (6th

Cir. 1989). Dismissal of a complaint under Fed. R. Civ.P.

12b(6) for failure to state a claim is warranted only when

the plaintiff undoubtedly cannot prove any set of facts

consistent with his allegations which would entitle him to

some relief, i.e., the plaintiff is not entitled to relief

App. 21

despite the facts as pleaded. Haines v. Kerner, 404 U.S. 519,

520-21 (1972); Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

Collins, 892 F.2d at 493.

ITI. Analysis

A. Section 1983 claim for violation of 42 U.S.C.

§ 3789g

Under 42 U.S.C. § 1983, a private cause of action

exists for “the deprivation of any rights, privileges’ or

immunities secured by the Constitution and laws [of the

United States].” 42 U.S.C. § 1983. In Maine v. Thiboutot,

448 U.S. 1 (1980), the U.S. Supreme Court determined that

§ 1983 provides a private cause of action for violations of

federal statutes as well as the Constitution. Thiboutot, 448

U.S. at 4. In decisions subsequent to Thiboutot, the

Supreme Court has determined that two exceptions exist

to this rule. A plaintiff alleging a violation of a federal

statute may enforce the statute under § 1983 unless: (1)

““the statute [does] not create enforceable rights, privi-

leges, or immunities within the meaning of § 1983,’ ”, or

(2) when “ ‘Congress has foreclosed such enforce-

ment... in the enactment itself.’ ” Wilder v. Virginia Hosp.

Ass'n, 496 U.S. 498, 508 (1990) (quoting Wright v. Roanoke

Redevelopment and Housing Authority, 479 U.S. 418 (1987));

see Golden State Transit Corp. v. City of Los Angeles, 493 U.S.

103, 106 (1989); Wood v. Tompkins, __ F.3d __, No.

93-3684, 1994 WL 462382, at *3 (6th Cir. Aug. 29, 1994);

Audette v. Sullivan, 19 F.3d 254, 256 (6th Cir. 1994).

To determine whether a provision creates an

“enforceable right” under the first exception, the Court

must apply a three-part test. The Court must ask (1)

App. 22

whether the provision “ ‘was intend[ed] to benefit the

putative plaintiff.”” Wilder, 496 U.S. at 509 (quoting

Golden State, 493 U.S. at 106)). If answered in the affirma-

tive, the provision creates an enforceable right unless (2)

“it reflects merely a ‘congressional preference’ for a cer-

tain kind of conduct rather than a binding obligation on

the governmental unit,” id. (quoting Pennhurst State Sch.

and Hosp. v. Halderman, 451 U.S. 1, 19 (1981)), or unless (3)

“the interest the plaintiff asserts is ‘too vague and amor-

phous’ such that it is ‘beyond the competence of the

judiciary to enforce.’ ” Id. (quoting Golden State, 493 U.S.

at 106) (some internal quotations omitted); see Wood, 1994

WL 462382, at *3 (setting forth three-part test). The plain-

tiff bears the burden of proof under this exception. Golden

State, 493 U.S. at 106; Wood, 1994 WL 462382, at *3.

With respect to the second exception, Congress may

foreclose enforcement under § 1983 by “providing a com-

prehensive enforcement mechanism for protection of a

federal right.” Golden State, 493 U.S. at 106 (internal quo-

tations omitted); see Wood, 1994 WL 462382, at *3. That the

statute merely makes available administrative protections

is not sufficient. Golden State, 493 U.S. at 106; Wood, 1994

WL 462382, at *3. Instead, the “statutory framework must

be such that allowing a plaintiff to bring a § 1983 action

would be inconsistent with Congress’ carefully tailored

scheme.” Golden State, 493 U.S. at 107 (internal quotations

omitted). The defendant bears the burden of proof under

this exception. Id.; Wood, 1994 WL 462382, at *3.

At issue in this case is whether the plaintiff may

bring a cause of action under § 1983 for a violation 42

U.S.C. § 3789g. Before making this determination, how-

ever, the Court must determine which subsection of

App. 23

§ 3789g that the plaintiff claims the defendants violated.

The plaintiff does not make this clear in his complaint.

This determination is important because the Supreme

Court has instructed that “each statute must be inter-

preted by its own terms” in determining whether the

Statute gives rise to a right enforceable under § 1983.

Suter v. Artist M., ___ US. —— 112 S. Ct. 1360, 1367 n.8,

118 L. Ed. 2d 1, 13 n.8 (1992); see Wood, 1994 WL 462382,

at “9 (considering subsections of 42 U.S.C. 1396n(c)(2)

separately and concluding that some subsections give rise

to enforceable rights under § 1983 while others do not).

Section 3789g generally addresses the confidentiality

of information disseminated pursuant to the Justice Sys-

tem Improvement Act, Pub. L. No. 96-157, 93 Stat. 1167

(1979), which amended the Omnibus Crime Control and

Safe Streets Act of 1968, 42 U.S.C. §§ 3701-3797 (collec-

tively, “the Act”). Subsection (a) of section 3789g pro-

hibits officers or employees of the Federal Government or

recipients of assistance under the Act from revealing, for

any purpose other than for which it was obtained under

the Act, “research and statistical information” that is

identifiable to any specific person. Id. § 3789g(a). Subsec-

tion (b) concerns “criminal history information” and pro-

vides that “the Cffice of Justice programs shall assure

that the security and privacy of all information is ade-

quately provided for and that information shall only be

used for law enforcement and criminal justice and other

lawful purposes.” Id. § 3789g(b). Finally, subsection (c)

concerns “criminal intelligence systems and information”

and provides that all criminal intelligence systems oper-

ating under the Act shall operate in conformance with

policy standards which, among other things, assure that

App. 24

the “systems are not utilized in violation of the privacy

and constitutional rights of individuals.” Id. § 3789g(c).

“Criminal history information” is defined under the

Act as including “records and related data, contained in

an automated or manual criminal justice informational

system, compiled by law enforcement agencies for the

purpose of identifying criminal offenders and alleged

offenders and maintaining as to such persons records of

arrests, the nature and disposition of criminal charges,

sentencing, confinement, rehabilitation, and release.” Id.

§ 3791(a)(9). “Research or statistical information” and

“criminal intelligence systems and information” are not

defined under the Act. Department of Justice regulations,

promulgated in part under the Act, however, do define or

clarify the terms.

Under Department of Justice regulations, “research

or statistical information” is defined as “any information

which is collected during the conduct of a research or

statistical project and which is intended to be utilized for

research or statistical purposes.” 28 C.F.R. § 22.2(d)

(1993). The term “research or statistical project” means

“any program, project, or component thereof which is

supported in whole or in part with funds appropriated

under the Act and whose purpose is to develop, measure,

evaluate, or otherwise advance the state of knowledge in

a particular area.” Id. § 22.2(c).

The Department of Justice regulations define criminal

“intelligence systems” as “the arrangements|[,] equip-

ment, facilities, and procedures used for the continuing

storage, exchange and analysis of criminal intelligence

data.” Id. § 23.3(b). Although the Department of Justice

App. 25

regulations do not define “criminal intelligence informa-

tion,” they do clarify the term by explaining that it refers

to ongoing criminal activity typically related to such

crimes as loan sharkiny, narcotics, trafficking in stolen

property, gambling, extortion, smuggling, bribery, and

corruption of public officials. Id. § 23.2.

After reviewing the record and applicable law, the

Court concludes that the only subsection of 3789g argua-

bly applicable in present case is subsection (b), the sub-

section that addresses the confidentiality of criminal

history information. The plaintiff alleges in his complaint

that a private citizen requested that defendant Rogers

conduct a search to find out if the plaintiff had ever been

arrested. Rogers allegedly conducted the search and dis-

closed to the citizen the plaintiff's criminal record. A

search of a person’s arrest records is consistent with a

search of a person’s “criminal history.” Indeed, the defini-

tion of “criminal history information” includes “records

of arrests[] and the nature and disposition of criminal

charges.” 42 U.S.C. § 3791(a)(9). The plaintiff does not

allege in this case that the private citizen and Rogers

were collecting information pursuant to a research or

Statistical project and intended to utilize the information

for research or statistical purposes, as contemplated

under § 3789g(a). Nor does the plaintiff allege that Rogers

provided “criminal intelligence information” pertaining

to some alleged criminal activity by the plaintiff, as con-

templated under § 3789g(c). For these reasons, therefore,

the plaintiff could only claim in this action that the defen-

dants violated the “criminal history information” provi-

sion of § 3789g(b).

App. 26

Whether § 1983 accords a private cause of action to

plaintiffs alleging a violation of § 3789g(b) is not a ques-

tion of first impression. In Polchowski v. Gorris, 714 F.2d

749 (7th Cir. 1983), a case in which the defendant

allegedly revealed “certain statistical and criminal history

information about the plaintiff, the U.S. Court of Appeals

for the Seventh Circuit determined that § 1983 does not

accord a private cause of action for violations of

§ 3789g(b) or § 3789g(a). With respect to subsection (b),

the court concluded that the subsection does not create an

enforceable right. The court reasoned that the subsection

is administrative in nature in that it imposes obligations

on a federal actor to assure that the information is only

used for the purposes for which it was collected. Pol-

chowski, 714 F.2d at 751. With respect to subsection (a),

the court concluded that the subsection does create an

enforceable right but is not actionable under § 1983

because Congress had foreclosed such an action by creat-

ing a comprehensive remedial scheme under the Privacy

Act of 1974, 5 U.S.C. 552a, a statute separate from

§ 3789g. Id. at 1752.

Although this Court need not determine, for reasons

already discussed, whether the Seventh Circuit reached

the correct result with regard to § 3789g(a), the Court

reaches the same result as the Seventh Circuit with regard

to § 3789g(b). As previously noted, a statute does not

confer an enforceable right if it reflects merely a congres-

sional preference for a certain kind of conduct rather than

a binding obligation on the defendant governmental unit.

Wildler, 496 U.S. at 509; Woods, 1994 WL 462382, at *3. The

defendant governmental unit in this case - McMinn

County - has no binding obligations under § 3789g(b).

App. 27

Section 3789g(b) only imposes obligations on the Office of

Justice Programs, which is a branch of the U.S. Depart-

ment of Justice. 42 U.S.C. §§ 3711, 3789g(b). The Sixth

Circuit has made clear that a plaintiff has no § 1983 right

of action against a state actor for the violation of a federal

statute where the statute is essentially administrative in

nature and imposes an obligation exclusively upon federal,

not state, actors. Woods, 1994 WL 462382, at *7: Audette v.

Sullivan, 19 F.3d 254, 257 (6th Cir. 1994). Whether a state

or federal actor has an obligation under a statute depends

upon whom the statute places the “onus of compliance.”

Woods, 1994 WL 462382, at *7; Audette, 19 F.3d at 256-57.

In this case, the onus of compliance with § 3789g(b)

clearly falls on the Office of Justice Programs. See 42

U.S.C. § 3789g(b) (“[T]he Office of Justice Programs shall

assure that the security and privacy of all information is

adequately provided for. . . . ”). Because the onus of

compliance falls on a federal, rather than state, actor,

§ 3789g(b) cannot confer a right enforceable under § 1983.

Furthermore, the Court agrees with the Seventh Cir-

cuit that § 3789g(b) is essentially administrative in nature.

Although the subsection does provides that the “Office of

Justice Programs shall assure the security and privacy of

all information is adequately provided for,” for subsec-

tion does not entitle individuals to privacy rights with

respect to their criminal history, nor does it reference

individuals’ privacy interests. The subsection, therefore,

may e fairly read to impose only a generalized duty on

the Office of Justice Programs, rather than create a pri-

vate, enforceable right. See Suter, ae aes o ee

at 1370, 118 L. Ed. 2d at 16 (concluding that language in

Statute requiring a state to have a plan providing that

App. 28

“reasonable efforts” will be made to prevent or eliminate

the need for removing a child from h:; home imposes

only a generalized duty upon the state rather than creates

an enforceable right).

Finally, it is worthy of noting that § 3789g(d) sets

forth penalties for persons who violate § 3789g. This

subsection provides that “[a]ny person violating the pro-

visions of this section, or any rule, regulation, or order

issued thereunder, shall be fined not to exceed $10,000, in

addition to any other penalty imposed by law.” Id.

§ 3789g(d). Although this subsection may not amount to a

comprehensive enforcement mechanism that conclusively

evidences congressional intent to foreclose a § 1983 cause

of action for a violation of § 3789g, it does show that the

absence of a § 1983 cause of action for a violation of the

section does not render the section a dead letter. See Suter,

__._ ; U.S. at __, 112 S. Ct. at 1368-69, 118 L. Ed. 2d at 14

(observing that 42 U.S.C. § 671(a)(15) is not a dead letter

without a private cause of action under § 1983 in light of

certain statutory provisions enabling the Secretary of

Health and Human Services to take actions against

states).

For all of the foregoing reasons, therefore, the Court

concludes that § 1983 does not accord the plaintiff a

private cause of action for a violation of § 3789g(b). His

§ 3789g claim brought pursuant to § 1983 will therefore

be DISMISSED.

App. 29

B. Claim Directly Under § 3789g

For similar reasons, plaintiff's claim directly under

§ 3789g(b) will also be DISMISSED. To prove the exis-

tence of an implied cause of action under a statute, the

plaintiff must prove that Congress intended to make a

private remedy available to enforce the provisions of the

Statute. Suter, ___ U.S. at __, 112 S. Ct. at Ware foe” El

2d at 16; see Smith v. Dearborn Fin. Servs., Inc., 982 F.2d

976, 980 (6th Cir. 1993) (noting that congressional intent is

the dispositive factor in determining whether a private

cause of action is implicit in a statute); see also Cort v.

Ashe, 422 U.S. 66, 78 (1975) (setting forth familiar four-

part test). As this Court has already determined,

§ 3789g(b) does not create an enforceable right for the

plaintiff in part because it only imposes a generalized

duty upon the Office of Justice Programs. Additionally,

§ 3789g provides its own enforcement mechanism by way

of the penalties that may be imposed under § 3789g(d). In

light of these statutory provisions, the Court concludes

that Congress did not intend to enforce § 3789g(b) by way

of private rights of action. Cf. Suter, ___ US. at ___, 112 S.

Ct. at 1370, 118 L. Ed. 2d at 16 (“Having concluded that

§ 671(a)(15) does not create a federal enforceable right

-.. under § 1983, the [implied right of action claim] may

be disposed of quickly.”).

C. Constitutional Claim

The plaintiff also claims that his constitutional right

of privacy was violated by the disclosure of his criminal

App. 30

history information. The plaintiff brings this claim both

directly under the Constitution and pursuant to § 1983.

The plaintiff's claim is without merit. In the case of

].P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981), the U.S. Court

of Appeals for the Sixth Circuit determined whether the

dissemination of juvenile delinquents’ “social histories”

violated the juveniles’ constitutional rights of privacy.

The Sixth Circuit acknowledged that the Supreme Court

had made “isolated statements” in Whalen v. Roe, 429 U.S.

589 (1977) and Nixon v. Administrator of General Servs., 433

U.S. 425 (1977) that, when read out of context, lent sup-

port to the juveniles’ claim, but the Sixth Circuit ulti-

mately held that “the Constitution does not encompass a

general right to nondisclosure of private information.”

DeSanti, 653 F.2d at 1090.

In the recent case of Doe v. Wigginton, 21 F.3d 733 (6th

Cir. 1994), the Sixth Circuit confronted the issue of

whether the disclosure of an inmate’s HIV infection vio-

lated the inmate’s constitutional right of privacy. The

Sixth Circuit followed DeSanti and held that the inmate’s

constitutional right of privacy was not violated by the

disclosure. Wingginton [sic], 21 F.3d at 740. The Court

found that the inmate’s privacy interest in his HIV infec-

tion was indistinguishable from the juveniles’ privacy

interest in their social histories. Id.

This Court concludes that DeSanti and Wingginton

[sic] control the present case. The plaintiff’s privacy inter-

est in his criminal background is no greater than the

inmate’s privacy interest in his HIV infection or the

juveniles’ privacy interest in their social histories.

en en connie ne Oren eee

App. 31

Accordingly, plaintiff’s claim his constitutional rights of

Privacy was violated will be DISMISSED.

Because the Court makes this determinations [sic]

based on the substantive constitutional right of privacy, it

matters not whether plaintiff brings his claim directly

under the Constitution or pursuant to § 1983. The result

is the same under either approach. His claim directly

under the Constitution, therefore, will also be DIS-

MISSED.

D. Tennessee Constitutional Claim

The plaintiff also claims that the disclosure of his

criminal background violates the Tennessee Constitution.

Tennessee courts, however, do not recognize a private

cause of action to recover damages for violations of the

state constitution. See Lee v. Ladd, 834 S.W.2d 323, 325

(Tenn. Ct. App.1992) (“We have held . . . in prior case that

we know of no authority for the recovery of damages for

a violation of the Tennessee Constitution by a state offi-

cer.”); see also Bennett v. Horne, No. 89-31-II, 1989 WL

86555, at *2 (Tenn. Ct. App. Aug. 2,1989) (“This court

knows of no authority for the recovery of damages for a

violation of article I, section 7 of the Tennessee Constitu-

tion.”). Accordingly, the plaintiff’s claim under the state

constitution will be DISMISSED.

IV. Conclusion

For the foregoing reasons, defendant McMinn

County’s motion to dismiss pursuant to Fed. R. Civ. P.

12(b) will be GRANTED.

App. 32

Although only defendant McMinn County moves for

dismissal of this action, the Court raises the motion sua

sponte with respect to the other defendant, Sheriff Rogers.

A court may raise a Rule 12(b)(6) motion sua sponte when

the court:

“(1) allow[s] service of the complaint upon the

defendant; (2) notif[ies] all parties of its intent to

dismiss the complaint; (3) give[s] the plaintiff a

chance to either amend his complaint or respond

to the reasons stated by the district court in its

notice of intended sua sponte dismissal; (4) give

the defendant a chance to respond or file an

answer or motions; and (5) if the claim is dis-

missed, state it reasons for dismissal.”

Morrison v. Tomano, 755 F.2d 515, 516 (6th Cir. 1985) (quot-

ing Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983)).

A sua sponte dismissal under Rule 12(b)(6) is not neces-

sarily invalid because of a lack of service on the defen-

dant or a failure to provide the defendant an opportunity

to respond. Id. at 517.

In this case, the requirements of Tomano are met.

Although the Court did not notify the plaintiff of its

intent to dismiss the complaint with respect to defendant

Rogers, McMinn County’s motion to dismiss put the

plaintiff on notice that his complaint was subject to com-

plete dismissal.! This is especially true considering that

1 Although McMinn County only argued in support of its

motion that the plaintiff was not entitled to recover on his claim

that McMinn County had violated 42 U.S.C. § 3789g, the motion

put the plaintiff on notice that his other claims against McMinn

County were subject to dismissal. Indeed, McMinn County

moved that the Court dismiss the plaintiff's “complaint.”

App. 33

the plaintiff brings the same claims against both defen-

dants in this action and that he sues Rogers, in part, in his

official capacity as Sheriff of McMinn County. A suit

against Rogers in his official capacity is indistinguishable

from a suit against the county itself. Furthermore, in light

of McMinn County’s motion, the plaintiff has had an

adequate opportunity to amend or respond to McMinn

County’s proferred reasons for dismissal. Although it is

apparent that defendant Rogers will not have an oppor-

tunity to respond to the Court’s intended dismissal, the

Court is satisfied, in accordance with Tomano, that Rogers

will not be unduly prejudiced by the dismissal.

Thus, for the same reasons that the Court concludes

that the Plaintiff’s claims against McMinn County will be

DISMISSED, the Court also concludes that plaintiff’s

claims against Rogers will be DISMISSED.

An order will enter.

/s/ R. Allan Edgar

R. ALLAN EDGAR

UNITED STATES

DISTRICT JUDGE