Petition for Writ of Certiorari — Troyer v. Boomtown LLC of Delaware (No. 05-1164)

and Madeline Manuior.

Troyer has never been convicted of any criminal

conduct. In 1982, the United States made a charge against

Tate Troyer, then it subsequently dismissed the charge.

However, despite the passage of time, the record of the

charge has been maintained by the FBI in the NCIC database.

Twenty-one years later, in 2003, Tate Troyer was

working for Boomtown Casino. Upon information and

belief, Boomtown had a practice of illegally purchasing

NCIC information from various individuals. In Apmil of

2003, Boomtown hired a St. Charles Parish deputy to access

the NCIC record of Troyer. Accordingly, without authority

or legitimate purpose, a St. Charles Parish Sheriff's deputy,

who happens to be the head of Internal Affairs, Michael

Manuior, lied to the FBI and wrongfully used his position as

an officer to obtain the NCIC record of plaintiff, Troyer.

After obtaining the NCIC record of Troyer, Manuior

publicized the contents of the report by forwarding the NCIC

record to Troyer’s employer, Boomtown Casino. Madeline

Manuior, the officer’s wife, was a subordinate to Troyer at

the relevant time, and she was making efforts to have Troyer

fired so that she could replace him for a substantially higher

seid FY.

Troyer’s position in this case is that Boomtown,

Manuior and the various defendant-actors violated his

constitutional nght to privacy by illegally obtaining

possession of his NCIC record, then illegally publicizing the

information contained therein. Information in an NCIC

report can effect a person’s ability to obtain a job, obtain a

license, pursue an education or pursue other interests. Those

facts contained in an NCIC report are personal and intimate.

Wrongful seizure and publication of non-conviction

information on an NCIC report is a violation of an

individual's right to privacy and gives rise to a claim under

S

42 USC § 1983. The federal courts have federal question

junsdiction.

Also important to note is that the plaintiff suffered

from depression and a stroke as a result of the misconduct of

the defendants. Troyer is perman-ntly paralyzed at age 42.

This is an appeal from the United States Fifth Circuit

Court of Appeals. Jurisdiction is invoked under Rule 10(c).

The Fifth Circuit has decided as important question of federal

law that has not been , but should be decided by this Court.

ARGUMENT WITH REASONS TO ACCEPT WRIT

In this case, the age of high technology computers

converges with the American citizen’s demand for privacy.

Can a police officer indiscriminately publish a nonconvicted

person’s background records for profit? This is a case of first

impression. The petitioners, Cindy and Tate Troyer, request

that writs be granted to address the malfeasance which has

occurred in this case.

This Court should not and must not condone illegal

conduct of a police officer. First, the officer lies to the FBI

using false pretenses to gain access to the NCIC database,

breaching a prior wnitten agreement. Then, the officer

illegally gains access and possession of confidential

government documents. Then, in the ultimate breach of trust,

he publishes the secret information to the victim’s employer.

The victim is terminated. Subsequently, it is discovered that

the officer and his wife stood to gain economically for the

illegal conduct. This Court is the only opportunity for redress

for the victim. NCIC records contain confidential

information. Particularly, as in this case, twenty-year old,

non-conviction information contained in an NCIC report is

6

extremely personal and can directly effect a person's

livelihood. Publication of such information can, and did,

effect a person's ability to work, enjoy leisure activities by

obtaining licenses, effect a person’s ability to be accepted

into an institution of higher education, and various other

activities. Further, the information can be embarrassing to a

law-abiding citizen who has had no encounter with law

enforcement other than the old incident, where there was no

conviction. Consequently, the illegal accessing of the NCIC

report for the purpose of embarrassing and hurting the

individual before his employer and his peers is a violation of

a person’s right to privacy.

Procedural History

On August 5, 2004, defendants, Boomtown,

Robertson, Jones, and Madeline Manuior, filed a 12(b)(6)

Motion to Dismiss asserting that there was no constitutional

violation alleged by the plaintiff sufficient to establish a

federal claim. A hearing and oral arguments were had on

September 29, 2004. Subsequent thereto, on September 30,

2004, after filing an Answer, the defendants, Greg

Champagne and Michael Manuior, filed a Motion to Adopt

and Incorporated Memorandum In Support asserting the

arguments of Boomtown.. Finally, after filing an Answer and

Affirmative Defenses, Paul Connick and Terry Richard

moved for dismissal] on the basis asserted by the Boomtown

defendants.

On January 12, 2005S, the trial court rendered a

Judgment dismissing the federal claims of plaintiffs, with

prejudice, as to all parties. The trial court dismissed the state

law claims without prejudice. The Fifth Circuit affirmed.

-

ISSUE ONE RESTATED:

DOES 42 U.S.C. §1983 CREATE A CAUSE OF ACTION

WHEN A POLICE OFFICER STEALS “NON-

CONVICTION” INFORMATION FROM THE

DATABASE OF THE NATIONAL CRIME

INFORMATION CENTER AND PUBLISHES THAT

INFORMATION TO THIRD PARTIES FOR NO

LEGITIMATE PURPOSE?

The enumerated rights to privacy are found in U.S.

Const. Amends. I, I, IV, and V.'

The makers of our Constitution

undertook to secure conditions

favorable to the pursuit of

happiness... They knew that

only a part of the pain, pleasure

and satisfactions of life are to

be found in material things.

They sought to protect

Americans in their beliefs,

their thoughts, their emotions

and their sensations. They

conferred , as against the

Government, the right to be

let alone — the most

comprehensive of rights and

the right most valued by

civilized men.

' The right to associate includes the right to

anonymity. NAACP v, Alabama, 357 U.S. 449 (1958).

8

Olmstead, et al v. United States, 277 U.S. 438, 478 (1928)

(emphasis added).

The Supreme Court has increased the privacy

protections over the past fifty years in light of the increase in

technology and the use of computers. In Roe v. Wade, 410

U.S: 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme

Court expressly recognized the existence of the nght to

privacy, but left its scope undefined.

In Whalen v. Roe, the Supreme Court expressly

recognized that the constitutional nght to privacy

encompasses an “individual interest in avoiding disclosure of

personal matters.” 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51

L.Ed.2d 64 (1977). “(T]he right to privacy consists of two

interrelated strands: One is the individual interest in avoiding

disclosure of personal matters, and another is the interest in

independence in making certain kinds of important

decisions.” Fadjo v. Coon, 633 F.2d 1172, 1175 (5" Cir.

1981) (citing Whalen, infra). The first strand, described as

the “night to confidentiality,” is broader than the second. Id.

(citing Plante v. Gonzales, 575 F.2d 1119, 1132 (5" Cir.

1978), cert denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d

90 (1979). Matters falling outside the scope of

decisionmaking may implicate the individual's interest in

non-disclosure or confidentiality. Id.

Troyer has alleged civil rights claims which include 42

U.S.C. §§ 1983 and 1985. Section 1983 provides a private

nght of action against parties acting “under color of any

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

to redress the deprivation of rights secured by the United

States Constitution or federal law.” Bauer v. Texas, 341

F.3d 352, 357 (5" Cir. 2003) (citing City of St. Louis v.

9

Praprotnik, 485 U.S. 112 (1988)).-

No case has ever addressed the issue of whether the

illegitimate, indiscnminate dissemination of a twenty-year

old, non-conviction, indictment, of a co-defendant, not easily

accessible to the public, and only available in the NCIC

database, invokes constitutional protection where the

individual loses his job and suffers permanent disability. In

Tosh v. Buddies Supermarkets, the Fifth Circuit refused to

address the issue presented here. 482 F.2d 329, 332 (5" Cir.

1973). “Whether this yet embryonic constitutional nght

restricts the indiscriminate release of arrest records to the

merely curious is a question we need not and do not decide in

this case.” Id.

A. The trial court erred in finding that an

NCIC report containing twenty year old,

non-conviction information does not

contain “intimate” facts.

1. Chilling Effects:

The non-conviction information in an NCIC report

could have a devastating effect, not just on Troyer but, on

anyone similarly situated. Because a “criminal record”

* The defendants neither allege any type of

immunity, nor do they dispute that Troyer is a United States

citizen. Likewise, the defendants do not dispute that there

was State action in this case. The defendants only argue that

there was no Constitutional right violated.

10

“Violates his dignity as a human being”? and can have a

“chilling effect” on an individual's liberty interest to pursue

employment’ and first amendment right to speak freely’, a

nonconviction, criminal history, must invoke the nght of that

individual to keep that information private and must be

considered fundamental and those facts intimate. In the

words of J.Edgar Hoover, Director of the F.B.1.: “In the

hands of an inexperienced person who is unfamiliar with

its purpose, an F.B.I. report can be a dangerous

instrument of injustice.” 46 N. Dame L. 827,803 (1971)

(R.110). And whether or not the information is disclosed, the

fear of the subject person that it will be or may be

[disseminated] is always there.” United States v. Dooley,

364 F. Supp. 75, 79 (E.D.Penn. 9/28/73).

2. Substantial Privacy Interest:

In United States Department of Justice v. Reporters

Committee for Freedom of the Press, the United State

Supreme Court ruled that “[t]he privacy interest in a rap

sheet is substantial.” 489 U.S. 749, 770 (1989). The

Supreme Court rejected the contention that an individual does

not have a privacy interest in F.B.I. maintained criminal

history records simply because it was public at one time.

‘ United States v. Kalish, 271 F.Supp. 968, 970

(U.S. D-P.R. 1967).

: Menard v. U.S., 430 F.2d 486, 490 (D.C.App.

1970).

, Right of Police to Retain Arrest Records, 49

N.C.L. Rev. 509, 516 (1971) (R.99).

isin

1]

Important points made by the Supreme Court are:

The very fact that federal

funds are spent to prepare, index

and maintain these criminal history

files demonstrates... the information

is not otherwise freely available. Id.

at 764.

[T)here is a vast difference

between the public records that

might be found after a diligent

search of courthouse files,...and a

computerized summary located in a

single clearinghouse of information.

Id.

This conclusion is supported

by the web of federal statutory and

regulatory provisions that limits the

disclosure of rap-sheet information.

Id.°

This careful and limited

pattern of authorized rap-sheet

disclosure fits the dictionary

definition of privacy as involving a

restniction of information ‘to the use ;

of a particular person or class of

persons.” Id.

Also supporting our

conclusion that a strong privacy

. The FBI’s NCIC records may be accessed for

only three legitimate purposes: criminal justice; justice

employment; and security clearance.

12

interest inheres in the nondisclosure

of compiled computenzed

information is the Privacy Act of

1974. Id. at 766.

Given this level of federal

concern over centralized data bases,

the fact that most States deny the

general public access to their.

criminal-history summaries should

not be surprising. Id.’

The difference between

scattered bits of criminal history and

a federal compilation, federal

statutory provisions, and state

policies, our cases have also

recognized the privacy interest

- inherent in the nondisclosure of

certain information even where the

information may have been at one

time public. Id. (citing Department

of Air Force v. Rose, 425 U.S. 352

(1976)).

We have also recognized

the privacy interest in keeping

personal facts away from the

public eye.” Id. at 769 (citing

Whalen v. Roe, 429 U.S. 589

(1977)).

In Louisiana, cnminal history is not public

record, and not to be disclosed except for law enforcement

purposes. See Ellerbe v. Andrews; 92-1376 (La.App. Ist Cir.

7/2/93); 623 So.2d 41, 42-44.

13

In sum, the fact that ‘an

event is not wholly ‘private’ does

not mean that an individual has no

interest in limiting disclosure or

dissemination of the

information.Id. at 769-770 (citing

Renquist, Js an Expanded P.-ht of

Privacy Consistent with Fair and

Effective Law Enforcement?,

Nelson Timothy Stephens

Lectures, University of Kansas

Law School, pt.1, p. 13 (Sept. 26-

27, 1974).

Accordingly, we hold as a

categorical matter that a third

party’s request for law

enforcement records or

information about a private citizen

can reasonably be expected to

invade that citizen’s privacy, and

that when that request seeks no

‘official information’ about

Government agency, but merely

records that the Government

happens to be storing, the invasion

of privacy is ‘unwarranted. Id. at

780.

3. The trial court made an improper analysis relying

on cases involving “criminal” conduct, without

intimate facts:

In addressing the issue of whether Troyer has a

constitutional nght of privacy in his NCIC report, the trial

Js

court erroneously discussed cases involving “criminal”

conduct. Troyer has no record of “criminal” conduct. The

FBI maintains a record of charging him and dismissing the

charges.

In Cline v. Rogers, the court examined the limited

issue of whether a convicted criminal had a “right to pnvacy”

in his “criminal” records. 87 F.3d 176 (6" Cir. 1996). With

very little, if any analysis, the court cited Paul v. Davis, 424

U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), for the

proposition that criminal records are not a personal matter.

“Moreover, one’s criminal history is arguably not a private

‘personal matter” at all, since arrest and conviction

information are a matter of public record.” Id. (emphasis

added). Troyer has no conviction.

In Cline, 87 F.3d at 179, the Sixth Circuit expressly

rejected the Fifth Circuit’s rulings: “although there may be a

dispute among the circuit courts regarding the existence and

extent of an individual privacy nght to nondisclosure of

‘personal matters,’ see Slayton v. Willingham, 726 F.2d 631

(10" Cir. 1984); Fadjo v. Coon, 633 F.2d 1172, 1176 (5® 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.”

At least two other courts have addressed the issue of

whether an individual has a privacy interest in criminal

conviction records. See Nilson v. Layton City, 45 F.3d 369,

‘ Also see Polchowski v. Gorris, the court did

not address the constitutional “right to privacy” issue. It

strictly looked at whether a private right of action existed

under 42 U.S.C. §§ 3789g(a) and (b).

15

372 (10" Cir. 1995)(finding that a person convicted of a

crime has no expectation of pnvacy because enacted law

places a citizen on notice that a violation of the law is not

private)’; Eagle v. Morgan, 88 F.3 620, 625 ( 8" Cir. 1996)

(finding that criminal activity, despite expungement, Is not

private)'®. No case has addressed whether a person who has

never been convicted has an expectation of privacy.

Further, even if Troyer was convicted, the other circuits are in

disagreement with the Fifth Circuit.

In al] of the cases cited by the defendants and the mal

court, the various courts ruled that “criminal” conduct was

not protected. The key word being “cnminal.” There is no

allegation or indication that Troyer committed any “cnminal”’

conduct. He has the nght to expect that if the FBI is going to

maintain a record of a charge, that the record will be kept

undisclosed to third parties.

Further, the tnal court’s comparison of the instant case

to Zaffuto v. City of Hammond, 308 F.3d 485 (5" Cir. 2002),

is misplaced. In Zaffuto, the information published by the

defendants was not intimate. “The Court concluded that the

‘substance’ of the Zaffuto’s conversation revealed only that

‘Zaffuto disliked some of his bosses,” and the disclosure in

this case, though deliberate, did not reveal the type of

intimate facts to constitute a constitutional violation.”

(R.35)(Citing Zaffuto, 308 F.3d at 490-91). One can

. Also, in Nilson, the plaintiff was convicted,

was a public official and “public person under the law, the

defendant was the press. Further, expungement does not

private a criminal act.

as The Eagle court commented that a guilty plea

is by its very nature public.

16

understand that such information is not private. Everyone at

some point makes a disparaging comment about his

superiors. On the contrary, Troyer’s career, reputation and

livelihood were at stake. After the passage of twenty years,

he expected that report would be kept confidential and used

only for legitimate purposes.

“The retention by police of an individual’s arrest

record was considered a humiliation to which he must submit

for the benefit-of society.” 46 N. Dame L. 827 (1971) (citing

Fernicola v. Keenan, 136 N.J.Eq. 9, 10, 39 A.2d 851

(1944)). Previously held to be constitutional, courts have

consistently acknowledged that maintaining records of those

not convicted is a “necessary intrusion” upon an individual’s

right to privacy. This authority of the government gives law

enforcement agencies the resources to keep track of

individuals in an ever moving society.

Courts across the Country have consistently

recognized a distinction between records of those who have

been arrested with convictions and those who have no

conviction. See Right of Police to Retain Arrest Records, 49

N.C.L. Rev. 509, 510-514 (1971); and The F.B.1.’s Right to

Retain and Disseminate Arrest Records of Persons Not

Convicted of a Crime May Be Limited by the First and Fifth

Amendments, 46 N.DameLaw 825 (1971). (Attached hereto).

The challenge of the courts has been the balance of a

person’s nght to privacy versus the government's interest in

maintaining cnminal histories all of people arrested. “(T]he

retention by police of an innocent individual's arrest record

creates a stigma which can directly bear on the functions

which that person can perform.” Id.

Information denominated in a

record of arrest, if it becomes

known, may subject an individual

to serious difficulties. Even if no

17

direct economic loss 1s involved,

the injury to an individual's

reputation may be substantial.

Economic losses themselves may

be both direct and serious.

Opportunities for schooling,

employment, or professional

licenses may be restricted or

nonexistent as a consequence of

the mere fact of an arrest, even if

followed by acquittal or complete

exoneration of the charges

involved. ‘

Menard v. Mitchell, 430 F.2d 486, 490 (D.C.App.

1970).

In the case at hand, because Troyer was never

convicted of a crime, he had a constitutional nght to expect

that the records would remain confidential.

Since its inception, courts have battled with the task of

balancing a person’s privacy interest against the

government’s authority to maintain non-conviction records.

The courts have always expressed concerns that employers

might gain access to non-conviction information and not

hire, or terminate, a person based upon that information

alone. In fact, the Supreme Court has indicated that an

employer has no nght to FBI maintained criminal history:

United States Department of Justice v. Reporters

Committee for Freedom of the Press, 489 U.S. 749, 771

(1989).

In this Country, a person is innocent unless proven

guilty. It follows that a person not proven guilty is innocent.

To categonze innocent, but indicted, people with convicted

individuals, creates an inappropriate classification in which

18

the innocent will not be provided equal protection under the

laws. “Yet it is clear that the government may not, wittingly

or unwittingly, engage in wanton defamation of individuals

and groups, and there is a limit beyond which the government

may not tread in devising classifications that lump the

innocent with the guilty.” Menard v. Mitchell, 430 F.2d 486,

492(D.C.App. 1970) (citing Watkins v. United States, 354

U.S. 178, 187 (1967); Joint Anti-Fascist Refugee

Committee v. McGrath, 341 U.S. 123, 153 (1951); and

Boorda v. Subversive Activities Control Board, 421 F.2d

1142 (1969), cert denied, 397 U.S. 1042 (1970). “Therefore,

in weighing the public interest in disclosure, we must weigh a

different quantity: since innocent members may easily be

separated from guilty ones, the public interest in exposure of

the guilty cannot be used'to justify exposure of the innocent.”

Boorda, 421 F.2d at 1149.

In United States v. Dooley, 364 F. Supp. 75, 77,

(E.D.Penn. 9/28/73), the Court recognized that the retention

of an indictment without a conviction served no legitimate

purpose. Even “authorized” release of this information has

no law enforcement value since the case was resolved by

acquittal. Id. The simple retention of arrest and indictment

records may advance a compelling government interest of

law enforcement which outweighs the individual’s right to

pnvacy. However, the violation of the constitutional night to

privacy will exist if the indictment information is

indiscnminately disseminated.

Even assuming that the adverse

information never falls into

“unauthonzed hands,” the fact

remains (1) that the information is

valueless if its retention is based

upon some theory of law

enforcement assistance to the police

19

at any level since it has been

determined to be unfounded in law;

(2) that it cannot form the basis for

any legitimate law enforcement

investigation; (3) that the use of this

information by “authorized”

agencies w ace the subject

person at a distinct disadvantage

with other citizens; (4) that the use

of the information would of

necessity be prejudiced specifically

to the rights of t ubject person

as compared with the right

by all ot itizens;

and that such an unfair state of

a Vv a a

violation of the constitutional right

to priv as well a

presumption of innocense and is

an affront to our sense of justice.

Any citizen, even one with an

absolutely clean lifetime record of

not violating the law, through a

series of circumstances could find

himself charged with a violation of

the law, even though he may be

entirely innocent of the charges. Our

system of criminal justice will in due

course bring out the truth and he will

be cleared. But, his record will not

be cleared. And although he has

been cleared under our laws, at any

future time the cloud of the

20

prosecution against him will

remain to all who one way or

another gain access to it: be it

inquines concerning employment,

security clearance, political office or

investigation concerning other

criminal offenses. Id. at 79

(emphasis added).

In United States v. Rosen, 343 F.Supp.804, 807

(1972), the court recognized a person’s nght to privacy in

information, particularly if he was not subsequently

convicted. The court ruled that public interest of the

government in law enforcement outweighed the individual’s

interest to keep the information private. Id. However, the

court went on to say that the nght to privacy may be violated

where the information of a person not convicted was

improperly published. Id. at 809. “However, if law

enforcement officials clearly abuse their discretion in the use

of retained arrest records and other matenials of identification,

then the court might well order the return of such records or

restrain such use.” Id.

The Code of Federal Regulation differentiates

conviction records from nonconviction records. 28 C.F.R.

20.21(b). “Limitations on dissemination. Insure that

dissemination of nonconviction data has been limited,

whether directly or through any intermediary only to: (1)

Cnminal justice agencies, for purposes of the administration

of criminal justice and criminal justice agency

employment...(2) ...by appropriate State or local officials or

agencies ...(3) ...pursuant to a specific agreement with a

criminal justice agency...(4)... The dissemination limitations

21

do not apply to conviction data.” Id. '' Troyer has never

been convicted and he was no longer an applicant because he

had been hired for an extended penod.

Maintaining Troyer’s record may have been a

legitimate purpose outweigbing his nght to pnvacy.

However, the defendants violated that right to privacy and

equal protection of the laws when they disseminated the

private facts with ill motive. As stated in Dooley, supra, this

information placed him at an extreme disadvantage as other

nonconvicted citizens. Certainly, if the information did not

exist, Troyer would not have been terminated.

B. The trial court should have utilized the

balancing test in Tosh.

Plante, Fadjo and Tosh require the court to balance

the privacy interest against the state interest.'* In weighing a

" La.Rev.Stat. 44:3(A)(4)(a) excludes

nonconviction records as public records and prohibits their

disclosure. “The records of the arrest of a person, other than

the report of the officer or officers investigating the

_ complaint, until a final judgment of conviction...” Further,

La.Rev.Stat. 15:587 prohibits an employer from obtaining

non-conviction information. “An employer or his

representative shall be entitled to obtain conviction records

of an applicant seeking employment directly from the Bureau

of Cnminal Identification and Information in order to further

qualify the applicant for the position being sought...”

La.Rev.Stat. 15:587(E) (emphasis added).

se The balancing test imposed on this court by

the Fifth Circuit in Fadjo, supra, is nearly the same as the

99

plaintiff's claim, “the district court must balance the invasion

of privacy alleged by [plaintiff] against any legitimate state

interests proven by the state.” Fadjo v. Coon, 633 F.2d 1172,

1176 (5" Cir. 1981). “This court noted in Plante, supra, that

where the privacy right is invoked to protect confidentiality. a

balancing test is appropriate as opposed to the compelling

state interest analysis involved when autonomy of

decisionmaking is at issue. Id. (citing Plante v. Gonzales,

575 F.2d 1119, 1134 (5 Cir. 1978).

In order to recover, the plaintiff must show that: he had

a legitimate expectation of privacy in the material; and his

privacy interest outweighs the public need for the disclosure.

Slayton v. Willingham, 726 F.2d 631, 635 (10" Cir. 1984).

In the case at hand, there was absolutely no legitimate reason

for the invasion of privacy and improper conversion of FBI]

and NCIC records.

In Tosh v. Buddies Supermarkets, Inc., the Fifth

Circuit did not address the “nght to privacy” of arrest records

because it found that the government had a legitimate

purpose for its conduct.

At the mal level, the defendants argue that they had a

legitimate purpose for accessing Troyer’s NCIC records

because Boomtown was Troyer’s employer. However, in the

United States Supreme Court case, discussed immediately

below, the Court stated that an employer has no purpose to

receive NCIC records. “[T]he rights of the two press

respondents in this case are no different from those that might

Freedom of Information Act (“FOLA) implemented in U.S.

Dept. Of Justice v. Reporters Committee for Freedom of the

Press, supra. Both require a balance between the privacy

interest of the individual and the purpose behind the state’s

disclosure of the private information.

23

be asserted by any other third party, such as a neighbor or

prospective employer.” United States Department of Justice

vy. Reporters Committee for Freedom of the Press, 489 U.S.

749, 771 (1989). Further, Louisiana law prohibits disclosure

of nonconviction information to employers, even with a

waiver. Further, because Troyer had already been hired and

performing his job exceptionally, any pre-employment

screening was irrelevant. Had the mal] court utilized the

balancing test, Troyer’s claim would not have been

dismissed. His expectation was extremely high that the

twenty year old charge would be kept confidential. Further,

there was no legitimate purpose.

c. The trial court erred in finding that there

was no pledge of confidentiality such to

invoke a constitutional right.

The Defendants, Michael Manuior, Officer Finn and

Terry Richard breached their contract and positions of trust.

In Alexander v. Peffer, the court ruled that a defendant

violates a plaintiff's Constitutional nght of pnvacy if he

commits a “flagrant bre[a]ch of a pledge of confidentiality

which was instrumental in obtaining the personal i

information.” 993 F.2d 1348, 1350 (8" Cir. 1993) (citing

Davis III v. Bucher, 853 F.2d 718 (9" Cir. 1988)).

The defendant agencies who have access to the NCIC

database are required to enter into a contract, or agreement,

with the Justice Department in return for access to the

database. 28 C.F.R. 20. In the agreement, the law

enforcement agencies agree to comply with all regulations

regarding the accessing and disseminating of criminal history

information. The defendants flagrantly breached this position

of trust.

In United States v. Pedersen, 3 F.3d 1468, 1471 (11"

24

Cir. 1993), the court found that the defendant officer

breached his position of trust by wrongfully publicizing

NCIC reports:

In this case, the computer

information accessed by Pedersen,

or by officers he recruited, was

highly personal and confidential. In

order to maintain the integrity and

privacy of the NCIC records, the

FBI keeps logs detailing for which

of three permissible purposes each

individual’s records were accessed:

criminal justice, justice

employment, or secunty clearances.

Access to this information was

entrusted to Pedersen in his capacity

as a sworn police officer, and he

was given training and instructions

regarding permissible access to and

dissemination of the information in

order to safeguard its

confidentiality. It was not error for

the district court to conclude that in

addition to the position of trust

Pedersen occupied in society as a

police officer, he was specially

entrusted with maintaining the

confidentiality of the information

accessible through the police

department computers.

In the present case, the conduct of the defendants

mirrors the conduct of the defendant in Pedersen. In fact, the

defendant, Manuior, had a heightened position of trust

25

- because he was, at the time of his offenses, the Supervisor of

Internal Affairs for the St. Charles Parish Shenff's Office.

ISSUE TWO RESTATED:

IF THE PRIVACY ACT DOES APPLY TO

PLAINTIFFS WHO SEEK TO ENFORCE

VIOLATIONS OF 42 U.S.C. § 3789g, DOES IT APPLY

WHEN THE VIOLATOR IS A STATE OR LOCAL

AUTHORITY.

The analysis in Polchowski v. Gorris,714 F.2d 749,

751 (7th Cir. 1983), is that the Pnvacy Act, 5 U.S.C. $52(a),

forecloses the use of § 1983 to enforce a violation under

Section 3789g. However, in Wright v. City of Roanoke

Redevelopment Housing Authority, 479 U.S. 416 (1987),

the Supreme Court made clear that a party is only foreclosed

from using § 1983 to remedy a federal statutory violation

“where Congress has foreclosed such enforcement of the

statute in the enactment itself.” 479 U.S. at 423.

In Middlesex County Sewage Authority v.

National Sea Clammers Ass’n, 453 U.S. 1 (1981), the court

found an intent to preclude a §1983 action because of

“unusually elaborate enforcement provisions” in the statutes

in question, including authonty of the government to seek

both civil and cnminal penalties, individual nghts to seek

judicial review of agency action, and citizen suit provisions.

453 U.S. 1. Thus, the issue sub judice is whether the Privacy

Act provides sufficiently comprehensive enforcement

provisions to foreclose the use of 1983 to remedy violations

of 3789g. In the case at bar, however, and in Polchowski, no

such ‘elaborate enforcement provisions’ exist.

Contrary to the holding in Polchowski, the Ninth

Circuit held in Keaukaha-Panaewa Community v. Hawaiian

26

Homes that the statute in question, the Hawaiian Admissions

Act, provided only a public remedy in that the Act expressly

permitted suit only by the federal government. 739 F.2d

'1467(9th Cir. 1984). The Court concluded that Congress had

“not provided a comprehensive enforcement scheme which

included ary: private-administration or judicial remedy.” 739

F.2d. at 1471. The Court therefore held that under the Nat’!

Sea Clammers Ass’n test, the Plaintiff had a federal cause of

action under §1983 of Title 42. 739 F.2d at 1471-1472.

As was the case with the Hawaiian Admissions Act in

Keaukaha- Panaewa, in the present case the Privacy Act

would provide solutions for the federal government but not

for non-federal authorities. The Privacy Act is not

comprehensive enough to cover actions against state and

local authorities for deprivation of the nghts granted by §

3789g. Thus, the Privacy Act cannot foreclose Troyer’s night

- to seek relief through § 1983.

Indeed, as the courts have said, § 1983 serves as a

safety net to allow a party to enforce violations when no other

remedy is available. In the present case, § 1983 is the

‘remedial remedy’ that should be available to Troyer and his

search to prosecute the deprivation of the nght granted unto

him by the Congress at § 3789g.

Denial of Due Process and Equal Protection

Troyer maintains his position that he was denied due

process under the law and equal protection of the laws. The

Due Process Clause of the Fifth and Fourteenth Amendments

prohibit the federal and state governments from depriving a

person of life, liberty or property without “due Process of

law.” Lomax v. City of New Orleans, 04-0461 (J. Duval)

(E.D.La. July 14, 2004); 2004WL1586539. Individuals

whose life, liberty and property are at stake are entitled to

27

“notice and opportunity to be heard.” Id. To prevail under a

§1983 claim, the issue becomes whether there is some

conduct of the defendants which deprived the plaintiff of life,

liberty or property without due process of law. Id.

In the case at bar, the plaintiff has alleged sufficient

facts to sustain a cause of action for violation of due process

of the law. His private facts were illegally seized and

publicized causing him a direct loss of reputation, good name

and employment. At no time was Troyer afforded the

opportunity to protect his nghts under the law.

In order to prevail on a claim against the defendants

based upon a violation of the equal protection clause, it must

be proved: that there are two or more classifications of

similarly situated persons who were treated differently; and

the classification had no rational relation to any legitimate

government objective. Toga Society, Inc. v. Lee, 03-2981 (J.

Duval) (E.D.La. June 18, 2004); 323 F.Supp.2d 779 (citing

Stefanoff v. Hays County, Texas, 154 F.3d 523,526 (5” Cir.

1998)). The Supreme Court recognizes a “class of one”

where the plaintiff alleges the he has intentionally been

treated differently from others similarly situated and that

there 1s no rational basis for the difference in treatment.

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

“The purpose of the equal protection of the Fourteenth

Amendment is to secure every person within the State’s

junsdiction against intentional and arbitrary discrimination,

whether occasioned by express terms of a statute or by its

improper execution through duly constituted agents.” Id.

“To state a claim sufficient for relief, a single plaintiff must

allege that an illegitimate animus or ill-will motivated by her

intentional different treatment from others similarly situated

and that no reasonable basis existed for such treatment.”

Shipp v. McMahon, 234 F.3d 907, 915 (5" Cir. 12/5/00)

(citing Olech, supra).

28

Since its inception, courts have battled with the task of

balancing a person’s privacy interest against the

government’s authority to maintain non-conviction records.

The courts have always expressed concerns that employers

might gain access to non-conviction information and not hire,

or terminate, a person based upon that information alone. In

fact, the Supreme Court has indicated that an employer has

no right to FBI maintained criminal history. United States

Department of Justice v. Reporters Committee for Freedom

of the Press, 489 U.S. 749, 771 (1989).

In this Country, a person is innocent unless proven

guilty. It follows that a person not proven guilty is innocent.

To categorize innocent, but indicted, people with convicted

individuals, creates an inappropmiate classification in which

the innocent will not be provided equal protection under the

laws. “Yet it is clear that the government may not, wittingly

or unwittingly, engage in wanton defamation of individuals

and groups, and there is a limit beyond which the government

may not tread in devising classifications that lump the

innocent with the guilty.” Menard v. Mitchell, 430 F.2d 486,

492(D.C.App. 1970) (citing Watkins v. United States, 354

U.S. 178, 187 (1967); Joint Anti-Fascist Refugee

Committee v. McGrath, 341 U.S. 123, 153 (1951); and

Boorda v. Subversive Activities Control Board, 421 F.2d

1142 (1969), cert denied, 397 U.S. 1042 (1970).

“Therefore, in weighing the public interest in disclosure, we

must weigh a different quantity: since innocent members may

easily be separated from guilty ones, the public interest in

exposure of the guilty cannot be used to justify exposure of

the innocent.” Boorda, 421 F.2d at 1149.

Vv. CONCLUSION

In sum, Troyer did not plead guilty, nor was he

29

convicted in a public tal. More than twenty years have

passed since the charges were dismissed. The wrongful

publication of the private information has caused him

irreparable damage. Immediately following the publication,

he lost his job. Later, he was unable to find re-employment

in the casino business because of the publication. He fel] into

a deep depression and suffered a paralyzing stroke at age 42.

Private information that he was entitled to believe was in his

past caused him extreme loss. With no legitimate purpose,

and only because Michael] Manuior was a trusted officer, was

the information accessed and improperly disclosed. A great

injustice has occurred.

In return for the people of this Country authorizing the

maintenance of such a database, the government has given its

commitment that thesé records will be maintained accurately

and kept confidential with limited access for three legitimate

purposes. If the information is readily available, why is the

information kept in a database? If the information is not

private, why is access so limited? If the information is

worthless, why does the government spend millions of dollars

gathering, collecting and storing it?

In accordance with the above discussion, the

defendants violated the appellants’ constitutional nights to

privacy, equal protection of the laws, due process, liberty, and

they breached their positions of trust in society. For the

foregoing reasons, the plaintiffs-appellants, Cindy and Tate

Troyer, respectfully request that this Honorable Court reverse

the trial court’s decisions and remand this case for further

proceedings.

Respectfully submitted,

BURGOS & EVANS, L.L.C.

ROBERT B. EVANS, III (Bar No. 23473)

la

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30127

TATE TROYER; CINDY TROYER,

Plaintiffs — Appellants,

Versus

BOOMTOWN LLC OF DELAWARE; LOUISIANA-

GAMING APIC; GREG CHAMPAGNE, St. Charles

Parish Sheriff; MICHAEL MAUNOIR;

MADELINE MAUNOIR; THOMAS JONES;

JOSEPH ROBERTSON;OFFICER FINN; TERRY

RICHARD; PAUL D. CONNICK, JR..

in his capacity as District Attorney of Jefferson Parish

Defendants — Appellees,

Appeal from the United States District Court

for the Eastern District of Louisiana

(3:04-CV-1084)

Before KING, Chief Judge, and BARKSDALE and PRADO, Circuit

Judges, PER CURIAM:

Essentially for the reasons stated in the distnct court’s Minute

entnes entered 22 December 2004 and 13 January 2005, the

judgment is

AFFIRMED.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circurnstances set forth in STH CIR. R. 47.5.4.

2a

MINUTE ENTRY

DUVAL, J.

December 16, 2004

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TATE AND CINDY TROYER — CIVIL ACTION

VERSUS No. 04-1084

- BOOMTOWN, LLC. Et al. SECTION "K"(5)

Before the Court is Defendant’s Motion to Dismiss

Pursuant to Federal Rule of Civil Procedure 12(B)(6) filed by

Boomtown, L.L.C., Louisiana-I Gaming, APIC, Madeline

Maunoir, Thomas Jones, and Joseph Robertson, (Boomtown

employees)(Rec. Doc. No. 20 ). Also before this Court is a

Motion to Adopt And Incorporated Memorandum In Support

filed by defendants, Greg Champagne, Michael Maunoir,. and

Officer Finn, requesting the Court to allow them to adopt the

Motion to Dismiss filed by the Boomtown employees. Oral

arguments on the Motion to Dismiss were heard on September

29, 2004. The Court has reviewed the pleadings, memorandum,

and the relevant law and finds as follows.

- FACTUAL ALLEGATIONS

Plai *Ci hts Ca

Plaintiffs, Tate and Cindy Troyer, filed suit against

several defendants for damages “arising out of an unlawful use

and publication of private and confidential information” of Tate

Troyer. (Plaintiffs’ First Supplemental and Amended Complaint

Doc. No. 11). Tate Troyer was an employee of Boomtown

Casino from September 2002 through July 2003. During his

employment, plaintiff had to “write up” employee, Madeline

Maunoir, whose husband, Office Maunoir, works as a police

3a

officer with the St. Charles Parish Sheriff's Office. (Rec. Doc.

No. 11 § 19, 25). After this incident, Madeline Maunoir and

other Boomtown employees conspired along with Office

Maunoir and Officer Finn, St. Charles Parish Deputy, to have

Troyer fired. (Rec. Doc. No. 11 § 24). Plainuffs claim the

conspiracy involved the officers performing an illegal and

unauthorized search of Tate Troyer by running a background

check via the National Crime Information Center (“NCIC”).

(Rec. Doc. No. 11 § 26). The NCIC report contained a record of

a 1982 indictment of Tate Troyer which was dismissed in 1984;

thus, no arrests or convictions exist. (Rec. Doc. No. 11 4 28).

After obtaining the records, Boomtown employees, Madeline

Maunoir, Thomas Jones, and Joseph Robertson provided this

information to Troyer’s superiors. (Rec. Doc. No. 4 30).

Thereafter, Boomtown gave Troyer the option of being fired or

quitting. Troyer chose to quit, resulting in a constructive

discharge. (Rec. Doc. No. 11 4 29). Following the termination,

Troyer suffered a stroke claimed to be related to the stress and

depression he suffered from the wrongful termination. (Rec.

Doc. No. 11 $33). Cindy Troyer, wife of Tate Troyer, suffered

damages including loss of support from her husband, loss of

affection and society, and continues to suffer stress and

depression. (Rec. Doc. No. 11 4 36).

Plaintiffs’ complaint includes twenty-two different

claims against the Boomtown defendants and defendants

associated with St. Charles Parish Sheriff's Office and the

Jefferson Parish District Attorney’s Office. These claims

include violation of Constitutional rights under the Fourth, Fifth,

Eighth, and Fourteenth Amendments, violation of 42 U.S.C. §§

1983, 1985, 1988, conspiracy to violate Constitutional and

Statutory nghts, violation of mnghts under the Louisiana

Constitution, respondent superior liability, independent liability,

wrongful conversion and publication of private facts, intentional

infliction of emotional distress, negligence, and RICO claims.

4a

Plaintiffs seek $5 million in damages for their federal claims.

RICO claims, and state law claims.

U1. STANDARD OF REVIEW

A motion to dismiss an action for failure to state a claim

“admits the facts alleged in the complaint, but challenges

plaintiffs right to relief based upon those facts." Crowe v. Henry,

43 F.3d 198, 203 (Sth Cir.1995)(quoting Ward v. Hudnell, 366

F.2d 247, 249 (Sth Cir.1996)."The district court may not dismiss

a complaint under rule 12(b)(6) ‘unless it appears beyond a doubt .

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

which would entitle him to relief.”’ Collins v. Morgan Stanley

Dean Witter, 224 F.3d 496, 498 (Sth Cir.2000)(quoting Conley v.

Givson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2L.Ed.2d 80 (1957).

"In order to avoid dismissal for failure to state a claim, however,

a plaintiff must plead specific facts, not mere conclusory

allegations.” Jd. see also Kaiser Aluminum & Chemical Sales v.

Avondale Shipyards, 677 F.2d 1045 (Sth Cir. 1982). That being

said, it 1s well established that courts do not have to accept every

allegation in the complaint as true in considering its sufficiency.

Wnght & Miller, Federal Practice & Procedure § 1357, at 311;

see also Associated Builders, Inc. v. Alabama Power Co., 505

F.2d 97, 100 (Sth Cir. 1974)(conclusory allegations and

unwarranted deductions of fact are not admitted as true). Courts

do not have to accept “legal conclusions,” “unsupported

conclusions,” “unwarranted references,” or “sweeping legal

conclusions cast in the form of factual allegations.” Wright &

Miller at 315-318.

Tl. ANALYSIS

Plaintiffs provided no authority for a federal cause of

action pursuant to the Fourth, Fifth, and Eighth Amendments of

Sa

the United States Constitution. Nor did plaintffs provide any

authority for a federal cause of action under 42 U.S.C. § 1985.

See Kush v. Rutledge, 460 U.S. 719, S.Ct. 1483, 75 L.Ed.2d 413

(1983) for a discussion of 42 U.S.C. § 1985. The Court finds

these claims are without merit under the law and facts pleaded in

plaintiffs’ case.

Plaintiffs allege a deprivation of their due process nghts.

In order to establish a claim of denial of procedural due process,

they must prove that there was a constitutionally protected

property or liberty interest that has been infringed by the

defendant. Plaintiffs allege that their liberty interest at stake is

Troyer’s employment. The Court finds this claim without merit

as Troyer was not a public employee. Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487,

1491, 84 LEd2d 494 (1985). See Wallace v. Shreve

Mem.Library, 97 F.3d 746,747 (Sth Cir.1996)(public employees

with protected property interest in their jobs are those who may

be fired only for cause and those who are permanent classified

employees); Moore v. Mississippi Valley State University, 871

F.2d 545, 548. Plaintiffs also allege that Troyer was denied

equal protection of the laws under the Equal Protection Clause.

The plaintiffs have provided no authority to potentially state a

federal cause of action under the Equal Protection Clause.

Plaintiffs have not identified two separate classes in order for the

Court to properly analyze the claim. Thus, the Court finds that

plainuffs’ federal claims other than their night to privacy under

the Fourteenth Amendment are without merit and, therefore,

dismissed with prejudice.

As stated in the Amended Complaint, plaintiffs seek

“damages arising out of violations of the civil rights of Tate

Troyer resulting in his wrongful termination, loss of

employment, personal injuries, pain and suffering, and other

6a

unconstitutional policies and actions, and state law claims

arising out of an unlawful use and publication of private and

confidential information.” (emphasis added). Defendants in

their Motion to Dismiss stated that while plainnffs alleged

violations of mghts under the United States Consntution, the

Louisiana Constitution, laws of the United States and the State of

Louisiana, “all of these claims revolve around the alleged

violation of Troyer’s nght to privacy through the improper

accessing of his rap sheet.”” Moreover, during oral argument, the

Court addressed the right to privacy in the context of the

Fourteenth Amendment and a 42 U.S.C. § 1983 tort claim.

Thus, the issue appropriately before the Court is whether the

plaintiffs” have a claim under the Fourteenth Amendment

sufficient to establish a 42 U.S.C. § 1983 tort claim. In the

second part of this opinion, the Court will consider plaintiffs’

RICO claims against defendants.

A. Plaintiffs’ Civil Rights Claims

To state a claim under section 1983, the plaintiff must

allege that the defendants “deprived him of a nght secured by the

‘Constitution and laws’ of the United States” and that they did so

“under color of any statute, ordinance, regulation, custom, or

usage of any State.” Fadjo v. Coon, 633 F.2d 1172, 1175 (5*

Cir. Unit B Jan.1981)(citing United States v. Price, 383 U.S.

787, 794, 86S.Ct. 1152, 16 L.Ed.2d 267 (1966)). Plaintiffs have

alleged enough facts for the requisite state action on the part of

all defendants. Acting “under color’ of law does not require that

the accused be an officer of the State if the accused is a willful

participant in joint activity with the state or its agents. Fadjo,

633 F.2d at 1175 (citing United States v. Price, 383 U.S. at 794).

The question then becomes whether there is a

deprivation of a constitutional right. Fadjo, 633 at 1175. As

7a

stated in their complaint, plaintiffs’ claims are based upon the

alleged “unlawful use and publication of private and

confidentia] information” which implicates the Fourteenth

Amendment’s protection of the “individual interest in avoiding

disclosure of personal matters” as described in the Supreme

Court decision Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869,

51] L.Ed.2d 64 (1977). In Whalen, the Supreme Court separated

the nght to privacy into two separate strands: “[o]ne is the

individual interest in avoiding disclosure of personal matters, and

another is the interest in independence in making certain kinds of

important decisions.” /d. This case involved a New York statute

which required that prescriptions for certain dangerous drugs be

prepared on official forms to be sent to the state health

department. /d. at 592-94. A group of patients who were being

treated with drugs covered by the New York statute challenged

the act as a violation of their constitutional nght to privacy

because it required disclosure of the patient’s name, address,

‘age, drug and dosage, and prescribing physician. /d. The

Supreme Court held that this record of information did not

“establish an invasion of any nght or liberty protected by the

Fourteenth Amendment.” Jd. at 606. This Court will focus on

the first strand of privacy as established in Whalen to determine

whether the dissemination of plainuff's rap sheet revealing a

1982 indictment that was dismissed two years later constitutes

“an invasion of any right or liberty protected by the Fourteenth

Amendment.” ~

Plaintiffs rely upon the Fifth Circuit case in Josh v.

Buddies Supermarket, Inc., 482 F.2d 329 (5" Cir. 1973). In

Tosh, plaintiffs, union organizers, sought relief under Section

1983 because a detective of the police department provided rap

sheets to the security personnel of Buddies supermarket who

disseminated this information to the public. /d. at 330. The

8a

Court held that the “records” released to the store personnel was

“devoid of any evidence” to support that plaintiffs were depnved

of constitutional rights. /d. at 332. Three years later, the United

States Supreme Court decided Paul v. Davis, 424 U.S. 693, 96

S.Ct. 1155, 47 L.Ed.2d 405 (1976). In this case, plaintiff brought

a 1983 claim under the Fourteenth Amendment because two

police officers distributed to local merchants fliers containing

mug shot photos and naming them as active shoplifters. Jd. at

695. The plaintiff had_been arrested on a charge of shoplifting

when his name and mug shot were disclosed; shortly after the

circulation of the flyer, the charge was dismissed. /d. The Court

held that publicizing “a record of an official act such as an arrest”

was not recognized by any of their substantive pnvacy decisions.

Id. at 713.

The Fifth Circuit recently discussed the second branch of

privacy established in Whalen in Zuffuto v. City of Hammond,

308 F.3d 485 (Sth Cir.2002). This case is instructive in terms of

its analytical framework and the clear limits placed upon claims

of this nature. In Zuffuto, police officer Zuffuto placed a call

from his private office to his wife expressing his approval of a

department re-structuring adversely affecting his superiors. /d. at

487. The conversation was surreptitiously taped and was played

for two police officers. Jd. Subsequently, Zaffuto was listed as a

witness in a co-worker’s sex discrimination lawsuit and was

suspended 240 hours for allegedly failing to accurately report an

officer assault. Jd. Among other complaints, Zaffuto filed a

1983 action, claiming that his nght to privacy under the

Fourteenth Amendment was violated. /d. at 489.

The Fifth Circuit held that “the disclosure in this case,

though deliberate, did not reveal the type of intimate facts to

constitute a constitutional violation.” Jd. at 490. The Fifth

Circuit has never explicitly determined what types of disclosures

9a

are ‘personal’ enough to create a constitutional cause of action,”

but turned to other courts that “have clearly been limiting the

scope of confidentiality branch actions.” Jd. The Court

discussed Davis II] v. Bucher, 853 F.2d 718, 720 (9th Cir.1988)

in which a corrections officer showed nude photos of an inmate’s

wife to at least two other inmates. Zaffuto, 308 F.3d at 490. The

Fifth Circuit, citing Davis II/, stated the following: “The court

said that the case presented ‘two isolated instances of poor

judgment’ and that ‘elevating them to constitutional dimension

would tend to trivialize the Fourteenth Amendment by making it

a magnet for all claims involving personal informaton, state

officers, and unfortunate indignities.”” /d. The Court noted

further that “‘[t]he constitutional nght to pnvacy is generally

limited to only the most intimate aspects of human affairs.’”’ Jd.

(citing Wade v. Goodwin, 843 F.2d 1150, 1153 (8th Cir.1988).

The Court concluded that the “substance” of the Zaffuto’s

conversation revealed only that “Zaffuto disliked some of his

bosses,” and “(t]he disclosure in this case, though deliberate, did

not reveal the type of intimate facts to constitute a constitutional

violation.” Zaffuto, 308 F.3d at 490-491.

In Cline v. Rogers, 87 F.3d 176 (6" Cir.1996), cert.

denied, 519 U.S.1008, 117 S.Ct.510, 136 L.Ed.2d 400(1996),

the Sixth Circuit considered a 1983 claim for improper

disclosure of arrest records. Plaintiff alleged that a private

citizen obtained his arrest record from the sheriff's department

via the NCIC database and that he had been deprived of his

constitutional night to privacy. /d. at 178. The Court stated,

“there is no violation of the United States Constitution in this

case because there is no constitutional right to privacy in one’s

criminal record.” Jd. at 179. The Court cited Paul v. Davis in

proposing that one’s criminal history is arguably “not a private

‘personal matter’ at all, since arrest and conviction information

if

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WeibHIHe HHe IHIMRIUH UF BHides amalliet HHe Lemitttiate Plitfeee

iit iwicliswtttic the titfiottttattion as etttisliwed be the Fifth Ciretuit tt

Past ) Buetitier, 482 Ft at 292 ated Uiliet cases it the Fifth

Cirewit. The Court notes that 2efiee analvoed this strand of

prveey un the context of a (O83 clan without « balancing test.

308 F 3 485, 489-401 ( Sth Cir 2002). ln Cnet » Conmie&, 15

F Se | 33R, 1342-1 3A (S™ Ca 1 988), core denied, 523 U.S. 86K

[ISS Ce 1 8® 130 Lele 1 27 + 1984), che Fifty Crrenie used? the

satenicne (eS on one Forbert smmendiment orfivacy Clam

NONE ME LE I LOS SE A SH ON The eee

nea Phe Nit fe ate a hale

Me Mh te AM igh) Poole - ete - PE yale

A ASAED hai sty DP tits EA ti

Li Ciel Mai. a esata 0 Maas sispbbsyalaiy! wee

po! snvolve apamale Gesails. . . dius, dbese dacs .

insufficient 40 stale a claun tor a gepnvauon ef his ainiemtaes

ngot 40 pnvacy” Jd at 1342. However, when the Court

consicered the disclosure of sexually onentec matenals found in

the planuff's room. the Cour considered the govermmment’s

unierest. Jd The Faith Curcurt a Cine! and Zaffuto declined 40

engage wp the balancing test when the alieged invasion did not

met the consttupend threshold. Thus Cour finds that the

aliegec umvasion bere Goes meet the consutubena! threshold of 2

sec tesisar ligys Tasit mano papage 9 pont psaielbs auc

a one ata Mr Dat Niet as peas see Vf

13a

“UHEHAIHAT (S ander the Fourteenth Amendment; therefore,

Hele (6 Gd HUANEY Gf fundamental rights to balance.

Ful (He '@asons stated above, the Court dismisses all

claittis Uitte the federal laws and the United States Constitution

with preiidice — PYaintiffs also raise a claim under 42 U.S.C. §

}ORS witch alles the recovery of attorney's fees; having

disttisseet plamt{tS’ claims, this statute is not applicable.

& Paineiffs’ RICO Claims

Paintiffs’ RICO Case Statement

MaimtifS allege violations of 18 U.S. C.A 1962(aXb\c)

wd (2) seams BSomtown Casino, Madeline Maunoir, Joseph

*oherser. ate’ Tom Jones and possibly others. Plaintiffs allege

1 ee LS nts engaged in a pattern of illegal conduct

TAPE” > \oyees to illegally access the NCIC database

"#OY® e. Doc. No. 11 $101). Plaintiffs allege that

6A O”\egalty retrieved criminal background reports

YSIS 0% the NCIC, and sold information for

; and entities, including, but not limited to

VADOUS sO0ivIGU

Boomtown Casan

RICO Generally

cok Bye enacted .. RICO ... for the purpose of

Sones” Bat yy lication of organized crime in the United

qusaetions od eh PIS, 529 U.S. 494, 496 (2000)internal

of which apply it ons omitted). RICO has eight sections, four

W9621a)4d) sens ¢etly to the case before this Court 18 U.S.C. §

“th the four activities prohibited by the statute.

PPT). a3 ©) were designed to work together to

“4 otha, “*e different ways in which organized crime

OT MOD Pts legitimate organizations.” David B. Smith

“sed, Civil RICO, § 5.02, p. 5- 2 (Matthew

- hock» ,

l4a

Bender & Co.2000). Subsection (d) is an inchoate offense,

prohibiting conspiracy to violate sections (a), (b), or ©).

Plaintiffs allege violations of Section 1962(a)-(d).

"Common elements are present in al] four [RICO]

subsections." Crowe v. Henry, 43 F.3d 198, 204 (Sth Cir.1995).

"These common elements teach that any RICO claim

necessitates "(1) a person who engages in (2) a pattern of

racketeering activity, (3) connected to the acquisition,

establishment, conduct or control of an enterpnse." Jd. (citing

Delta Truck & Tractor, Inc. v. J.L.Chase Co., 855 F.2d 241, 241

(Sth Cir.1998)); see also Keith A. Langley & Mark Chevallier,

Civil RICO, 21 Tex.Tech. L.Rev.185 (1990). Once those

fundamental prerequisites are satisfied, the court "may then

continue to the substantive requirements of each respective

subsection." St. Paul Mercury Insurance Co. v. Willimson, 224

F.3d 425, 439 (Sth Cir.2000).

A RICO person is the defendant. Crowe, 43 F.3d at 204.

18 U.S.C. § 1961(3) defines a RICO person as "any individual or

entity capable of holding a legal or beneficial interest in

property.” Recognizing that the statute provides a very broad

definition, the Fifth Circuit has clarified the definition, requiring

that "the RICO person must be one that either poses or has posed

a continuous threat of engaging ir the acts of racketeering.”

Crowe, 43 F.3d at 204(quoting Delt: Truck & Tractor,855 F.2d

at 242. The panel in Crowe expounded upon the requirement by

Stating that "(t]he continuous threat requirement may not be

satisfied if no more is pled than that the person has engaged in a

lumited number of predicate racketeering acts." Jd. In Plaintiffs’

Opposition, they state that defendants, Thomas Jones, Joseph

Robertson, Does 1-3, and Madeline Maunoir (al] Boomtown

employees) are the RICO persons. In their RICO Case

Statement, plainnffs alleged that on April 25, 2003 and on May

16, 2003 police officers at St. Charles Parish Sheriff's Office

performed NCIC searches on Troyer. Plaintiffs also alleged that

15a

on June 26, 2003 and ‘August 6, 2003, police officers searched

records for another Boomtown employer, Troyer’s successor.

Plaintiffs name the Boomtown employees as the RICO person,

but use the acts of the police officers to establish a “continuous

threat.” Furthermore, performing a search on two separate

persons only shows a limited number of “predicate acts.” Thus,

based on this sparse evidence, the Court finds there is no RICO

person who poses a “continuous threat.”

The final element common to all RICO claims is the

existence of an enterprise. Thus, "[a] plainnff asserting a RICO

claim must allege the existence of an enterprise." Crowe, 43 F.3d

at 204. A RICO enterprise is “a group of persons associated

together for a common purpose" and “is proved by evidence of

an ongoing organization and by evidence that the various

associates function as a continuing unit." United States v.

Turkette, 452 U.S. 576, 583 (1981). The statute defines an

enterprise as "any individual, parmership, corporation,

association, or other legal entity, and any union or group of

individuals associated in fact although not a legal ennty.” 18

U.S.C. § 1961(4). Thus, a RICO enterprise can either be a legal

entity or an association in fact. St. Paul Mercury Insurance Co.,

224 F.3d at 439; Manax v. McNamara, 842 F.2d 808,811(5th

Cir.1988). “While a RICO enterprise can be formal or informal,

some type of organizational structure is required." Stachon v.

United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir.2000).

The Fifth Circuit has determined that an "association in fact"

“enterprise (1) must have an existence separate and apart from

the pattern of racketeering, (2) must be an ongoing organization,

and (3) its members must function as a continuing unit as shown

by a hierarchical or consensual decision making structure."

Crowe, 43 F.3d at 205.

Plainuffs claim that an “association in fact” enterprise

exists. Plaintiffs state that the officers at St. Charles Parish

Sheriff's Office and certain employees at Boomtown Casino

16a

compnsed the RICO enterpnse. Plainnffs state that the

“enterprise is two fold.” Plaintiffs allege that Officers Maunozr,

Finn, and Richard provided illegal information to Boomtown

employees for profit and Boomtown Casino, through certain

employees, profited from the illegal] enterprise and gained an

unfair advantage over employees and other casinos by soliciting

the illegally obtained information.

Upon reviewing plaintiffs’ descnption of the enterprise

in the RICO Statement, the Court finds that the plaintiffs fail to

satisfy even the first element required for an “association in

fact”—an existence separate and apart from the pattem of

racketeering. The question of whether the enterprise has a

"separate existence" from the pattern of activity through which it

is conducted ought to be the focus of inquiry in every

illegitimate enterprise case." David B. Smith & Terrance G.

Reed, Civil RICO, § 3.06, p. 3-50 (Matthew Bender &

Co.2000). The United States Supreme Court has instructed that

"(t]he “enterprise” is not the "pattern of racketeering activity”; it

is an entity separate and apart from the pattern of activity in

which it engages." Turkette, 452 U.S. at 583; see also Elliot v.

Foufas, 867 F.2d 877, 881 (Sth Cir.1989). Therefore, proof of a

pattern of racketeering does not necessarily prove the existence

of an enterprise, and vice versa. Jd. Moreover, "the plaintiff must

plead specific facts which establish that the association exists for

purposes other than simply to commit the predicate acts." Jd. If

the association has as its raison d'etre a single, discrete goal

toward which al] its energies are directed, the association is not a

RICO enterprise.” Household Bank FSB v. Metro Associates,

1992 WL 350239 (E.D.La.1992), Plaintiffs do not provide any

evidence that the enterprise exists for purposes other than to

commit the alleged acts. It appears that the alleged single goal in

mind of this “two fold enterprise” is the production of NCIC

reports for a gainful advantage over other employees in the

casino business. The plaintiffs fail to establish that this

17a

enterprise made up of Boomtown Casino employees and officers

at St. Charles Parish is an entity separate and apart from the

pattern of illegal acnvity. Because the first element of an

“association in fact” enterprise is not satisfied, the Court finds

that there 1s no enterpnise.

The Court need not investigate the validity of the alleged

predicate acts because plaintiffs fail to meet two of the three

elements common to al] RICO claims. The Court finds that

there are no RICO person and no established enterpnse. Thus,

plainnffs’ RICO claims are dismissed with prejudice.

The Court notes that there are federal claims pending

against Terry Richard and Paul Connick Therefore, any

dismissal of state claims would be premature. Accordingly,

IT IS ORDERED that the defendants Greg

Champagne, Michae] Maunoir, and Officer Finn's Motion To

Adopt And Incorporated Memorandum In Support is

GRANTED.

IT IS FURTHER ORDERED that plaintiffs’ federal

law claims are DISMISSED WITH PREJUDICE against

defendants Boomtown L.L.C., Louisiana I-Gaming, APIC,

Madeline Maunou, Thomas Jones, Joseph Robertson, Greg

Champagne, Michael Maunoir, and Officer Finn.

IT IS FURTHER ORDERED that plaintiffs’ RICO

clams are DISMISSED WITH PREJUDICE against

defendants Boomtown Casino L.LC., Louisiana I-Gaming,

APIC, Madeline Maunoir, Thomas Jones, and Joseph

Robertson

18a

MINUTE ENTRY

DUVAL, J.

January 12, 2005

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TATE TROYER. ET AL. CIVIL ACTION

VERSUS No. 04-1084

BOOMTOWN, LLC., ET. AL SECTION "K"(5)

Before the Court is defendants, Jefferson Pansh Distnct

Attorney Paul Connick and Terry Richard’s Motion To Dismiss

And Incorporated Memorandum In Support (Rec.Doc.32) and

Plaintiffs’ Memorandum In Opposition To Pau] Connick And

Terry Richards’s 12(b6) Motion to Dismiss (Rec.Doc. 33).

For the reasons stated below, the Court grants defendants’

mouon.

I. BACKGROUND

Plainuffs, Tate and Cindy Troyer, filed suit against

several defendants for damages “‘ansing out of an unlawful use

and publicanon of private and confidential information” of Tate

Troyer. (Plainuffs’ First Suppiementa] and Amended Complaint

Doc. No. 11). Tate Troyer was an employee of Boomtown

Casino from September 2002 through July 2003. During his

employment, plainnff had to “wnte up” employee, Madeline

Maunou, whose husband, Office Maunoir, works as a police

officer with the St. Charles Parish Sheriff's Office. (Rec. Doc.

No. 11 § 19, 25). After this incident, Madeline Maunoir and

19a

other Boomtown employees conspired along with Office

Maunoir and Officer Finn, St. Charles Pansh Deputy, to have

Troyer fired. (Rec. Doc. No. 11 § 24). Plainnffs claim the

conspiracy involved the officers performing an illegal and

unauthorized search of Tate Troyer by running a background

check via the National Cnme Information Center (“NCIC”).

(Rec. Doc. No. 11 § 26). The NCIC report contained a record of

a 1982 indictment of Tate Troyer which was dismissed in 1984;

thus, no arrests or convictions exist. (Rec. Doc. No. 1] § 28).

After obtaining the records, Boomtown employees, Madeline

Maunoir, Thomas Jones, and Joseph Robertson provided this

information to Troyer’s superiors. (Rec. Doc. No. § 30).

Thereafter, Boomtown gave Troyer the option of being fired or

quiting. Troyer chose to quit, resulmng in a constructive

discharge. (Rec. Doc. No. 11 § 29). Following the termination,

Troyer suffered a stroke claimed to be related to the stress and

depression he suffered from the wrongful termination. (Rec.

Doc. No. 11 § 33). Cindy Troyer, wife of Tate Troyer, suffered

damages uicluding loss of support from her husband, loss of

affection and society, and continues to suffer stress and

depression. (Rec. Doc. No. 11 § 36).

Plaintiffs’ complaint includes twenty-two different

claims against the Boomtown defendants, police officers

Mauno1r, Finn, and Sheriff Champagne, and defendants Paul

Connick and Terry Richard with the Jefferson Parish District

Attomey’s Office. Plaintiffs seek $5 million in damages for

tueir federal claims, RICO claims, and state law claims. RICO

claims were not brought against defendants Paul Connick and

Terry Richard.

I. LEGAL STANDARD

20a

A motion to dismiss an action for failure to state a claim

‘“‘admits the facts alleged in the complaint, but challenges

plaintiff's night to relief based upon those facts." Crowe v. Henry,

43 F.3d 198, 203 (5th Cir.1995)(quoting Ward v. Hudnell, 366

F.2d 247, 249 (5th Cir.1996)."The district court may not dismiss

a complaint under rule 12(b)(6) ‘unless it appears beyond a doubt

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

which would enttle him to relief.”’ Collins v. Morgan Stanley

Dean Witter, 224 F.3d 496, 498 (Sth Cir.2000)(quoting Conley v.

Givson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2L.Ed.2d 80 (1957).

"In order to avoid dismissal for failure to state a claim, however,

a plainuff must plead specific facts, not mere conclusory

allegations.” Jd. see also Kaiser Aluminum & Chemical Sales v.

Avondale Shipyards, 677 F.2d 1045 (Sth Cir. 1982). That being

said, it is well established that courts do not have to accept every

allegation in the complaint as true in considering its sufficiency.

Wnght & Miller, Federal Practice & Procedure § 1357, at 311;

see also Associated Puilders, Inc. v. Alabama Power Co., 505

F.2d 97, 100 (5th Cir. 1974Xconclusory allegations and

unwarranted deductions of fact are not admitted as true). Courts

do not have to accept “legal conclusions,” “unsupported

conclusions,” “unwarranted references,” or “sweeping legal

conclusions cast in the form of factual allegations.” Wright &

Miller at 315-318.

TM. ANALYSIS

On December 22, 2004, the Court dismissed plaintiffs’

claums against defendants Boomtown LLC, Louisiana-] Gaming,

APIC, Madeline Maunoir, Thomas Jones and Joseph Robertson

for failure to state a cause of action (Rec.Doc.30). Except for the

RICO claims, plaintiffs allege the identical claims that were

previously dismissed by the Court against defendants herein.

2la

Plaintiffs oppose the instant matter on the same grounds as those

set forth in their Memorandum in Opposition to Boomtown’s

Motion to Dismiss. Thus, for the reasons stated in the Court's

Minute Entry (Rec.Doc.30) dated December 22, 2004, the Court

dismisses plaintiffs’ federal claims against defendants Paul

Connick and Terry Richard with prejudice.

IV. PENDING STATE LAW CLAIMS

Movers in the instant motion were the only two remaining

defendants in these proceedings who had pending federal law

claims against them. Thus, this Court’s finding that plaintiffs

have no viable claims under federal law against all named

defendants deprives this Court of the foundation for its subject

matter junsdiction. Although the several state law counts were

properly asserted pursuant to 28 U.S.C. § 1367, the the Court

must decide whether to retain those causes of action pursuant to

its pendent jurisdiction. Pendent junsdiction is a "doctrine of

discretion, not of plainuffs nght." Carnegie-Mellon University

v. Cohill, 484 U.S.343, 350 108 S.Ct. 614, 619, 98 L.Ed.2d 720

(1988)(quoting Mine Workers v. Gibbs, 383 U.S.715, 86 S.Ct.

1130, 16 L.Ed.2d 218 (1966)). Although there are several

factors to consider in making this determination, the Court has

instructed that "when the federal claims have dropped out of the

lawsuit in its early stages and only state law claims remain, the

federal court should decline the exercise of junsdiction by

dismissing the case without prejudice." /d.; See also Parker &

Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580 (5*

Cir.1992)(general rule is to dismiss pendent state claims after

federal claims dismissed); Rhyne v. Henderson County, 973 F.2d

386,395 (5" Cir.1992)district court properly dismissed state

claims after dismissal of federal questions); Rahr v. Grant

Thornion LLP, 142 F.Supp.2d 793 (N.D.Tex.2000\same).

22a

Thus, federal courts shouid avoid deciding needless decisions of

state law. Noble v. White, 996 F.2d 7°7 (Sth Cir.1993)(citing

Mine Workers, 383 U.S. 715)). Here. the federal claims have

been dismissed at an early stage of the linganon. As of this date,

there has been no trial date set in this matter. Furthermore, state

law claims remain, some of which involve the Louisiana State

Consntuton. Based on these factors, judicial economy,

convenience, fairness and comity require this Court to dismiss

the pendent state law claims as well. Accordingly,

| IT IS ORDERED that defendants, Jefferson Parish

District Attorney Paul Connick and Terry Richard’s Motion To

Dismiss And Incorporated Memorandum In Support

(Rec.Doc.32) is HEREBY GRANTED; thus, federal claims

against defendants are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that state law claims

existing against all defendants in the lawsuit are DISMISSED

WITHOUT PREJUDICE.

~ UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TATE TROYER, ET AL. CIVIL ACTION

VERSUS 3 No. 04-1084

BOOMTOWN, LLC., ET. AL - SECTION "K"(5)

JUDGMENT

Considering the Court’s Minute Entries dated December

22, 2004 (Rec.Doc.30) and January 12, 2005,

IT IS ORDERED, ADJUDGED AND DECREED

that judgment be entered in favor of defendants Boomtown,

L.L.C. Louisiana-1Gaming, APIC, Greg Champagne, Michael

Maunoir, Officer Finn, Madeline Maunoir, Thomas Jones,

Joseph Robertson, Terry Richard, Paul Connick dismissing

plaintiffs’ federal law claims with prejudice and dismissing

plainnffs’ stat law claims without prejudice with each party to

bear its/his own costs.

New Orleans, Louisiana, this 12TH day of January,

2005.

/s/

STANWOOD R. DUVAL JR

UNITED STATES DISTRICT JUDGE