BARKER v. BAY COUNTY SHERIFF'S OFFICE et al

Filing 25

ORDER granting 23 Motion to Dismiss for Failure to State a Claim. Count I of Plaintiff's First Amended Complaint as it relates to Defendant McKeithen, only, is DISMISSED without prejudice. Signed by JUDGE RICHARD SMOAK on 10/6/2014. (jcw)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MATTHEW BARKER,
Plaintiff,
v.

CASE NO. 5:14-cv-102-RS-GRJ

BAY COUNTY SHERIFF’S OFFICE, et al.,
Defendants.
_________________________________________/
ORDER
Before me are Defendant McKeithen’s Motion to Dismiss First Amended
Complaint (Doc. 23), Plaintiff’s Response in Opposition to Defendant’s Motion to
Dismiss (Doc. 24), and Plaintiff’s First Amended Complaint (Doc. 21).
On August 25, 2014, I granted Defendant McKeithen’s Motion to Dismiss
Complaint (Doc. 10), and I dismissed without prejudice Count I of Plaintiff’s
Complaint (Doc. 1) as it relates to Defendant McKeithen only. In that Order, I
dismissed Count I pursuant to our local Rule 7.1 for Plaintiff’s failure to file a
responsive memorandum in opposition to Defendant’s motion to dismiss. In
response, on August 28, 2014, Plaintiff filed his First Amended Complaint (Doc.
21), and on September 15, 2014, Defendant McKeithen moved to dismiss. Doc. 23.
Again, Plaintiff failed to file a responsive memorandum with citations of
authorities in opposition to Defendant’s motion. Doc. 24. Instead, Plaintiff not

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only re-filed the memorandum of an unrelated intervenor from an unrelated case,
but he re-filed his entire June 20, 2014, (see id. at 3) response in opposition
without complying with our local rules. Id. I reiterate, the attached exhibit is not a
document central to or referenced in the complaint, and I may not take judicial
notice of it. See La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.
2004). Further, “[f]ailure to file a responsive memorandum may be sufficient cause
to grant the motion.” N.D. Fla. Loc. R. 7.1.
“A fundamental and longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of the necessity of
deciding them.” Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445
(1988). I find it unnecessary to reach the constitutional question here. To overcome
a motion to dismiss, a plaintiff must allege sufficient facts to state a claim for relief
that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007). In support of Plaintiff’s claims under the Driver’s Privacy Protection Act
(DPPA),18 U.S.C. § 2721 et seq., Plaintiff alleges that Defendant Garrison,
without a legitimate law enforcement purpose, used the Driver and Vehicle
Information Database (DAVID) to conduct inquiries regarding Plaintiff’s
information six times on January 5, 2011, and January 6, 2011.
Pursuant to 18 U.S.C.A. § 2724, “A person who knowingly obtains,
discloses or uses personal information, from a motor vehicle record, for a purpose

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not permitted under this chapter shall be liable to the individual to whom the
information pertains[.]”18 U.S.C.A. § 2724. Plaintiff’s First Amended Complaint
(Doc. 21) clearly alleges that Defendant Garrison obtained Plaintiff’s information
with no legitimate law enforcement or official purpose. Although Plaintiff alleges
that Defendants both intentionally obtained, disclosed, or used his driver’s license
information without an authorized purpose, and that they each invaded Plaintiff’s
legally protected interests under DPPA, Plaintiff has failed to allege any facts –
other than Defendant Garrison is employed with the Sheriff’s office – that suggest
Defendant McKeithen violated Plaintiff’s interests under the DPPA. A conclusory
recitation of the elements of a cause of action is insufficient. See Bell Atlantic
Corp., 550 U.S. at 555.
Accordingly, the relief requested in Defendant McKeithen’s Motion to
Dismiss First Amended Complaint (Doc. 23) is GRANTED. Count I of Plaintiff’s
First Amended Complaint as it relates to Defendant McKeithen, only, is
DISMISSED without prejudice.

ORDERED on October 6, 2014.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE

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