# Opposition Brief — Cline v. Rogers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1008

## Text

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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I MN tooo. OS ckacha Gen bag seee ee,
ST Sa 0” SSR ae RB Ss el ea 1, 2, 6, 7,9
A OD O.05. foo. Fico aes dase sacs. 7
NM Oe isc i cisadeddtias oda icea 7,9

er SR eS ee. 8

iv

TABLE OF AUTHORITIES — Continued

Page
REGULATIONS CITED:
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Fe Mi ee ED oe WEKA cub Ph Rae ONS Ae eae eee eke 8
eg Sch sR, eS RR eee ey G Mietta7atade Nery een ae AN 7
Rutes Crrep:
ge ee Re re eee ee ee oe 10
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1508%3A2. Public record. Not legal advice.