Leach v. District Board of Trustees of Palm Beach et al

Filing 45

ORDER AND OPINION granting 15 Motion to Dismiss. Signed by Judge Kenneth A. Marra on 3/24/2017. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-80703-CIV-MARRA/MATTHEWMAN
PATRICK LEACH,
Plaintiff,
vs.
DISTRICT BOARD OF TRUSTEES
OF PALM BEACH d/b/a PALM
BEACH STATE COLLEGE;
and CYNTHIA A. ARCHBOLD,
Defendants.
____________________________/
ORDER AND OPINION GRANTING MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Cynthia Archbold’s Motion to
Dismiss [DE 15]. The Court has carefully considered the entire Court file and is
otherwise fully advised in the premises.
INTRODUCTION
Plaintiff Patrick Leach (“Plaintiff”), a former student at Palm Beach State
College, has filed a seven count complaint against the District Board of Trustees of
Palm Beach d/b/a Palm Beach State College, and his composition instructor Cynthia
A. Archbold (“Archbold”). Plaintiff alleges that he has difficulty reading due to a
disability,1 and that therefore, the act of asking Plaintiff to read in front of the class

1

Plaintiff alleges, verbatim, that he “has been diagnosed with Photophobia,
an autoimmune disease by which he sustained trauma to his right eye[.] . . .[A]s a
result[, Plaintiff’s] right eye is extremely sensitive to light, [he] is required to wear
protective sunglasses and [he] has great difficulty reading, especially small fonts and

constituted the intentional infliction of emotional distress as well as invasion of
privacy. Archbold asserts that Plaintiff fails to state adequately a claim for either
tort for multiple reasons.
LEGAL STANDARD
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and plain
statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P.
8(a)(2). The Supreme Court has held that "[w]hile a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Factual allegations must be enough to raise a right to relief above
the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).
"To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotations and citations omitted). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the

lettering. Plaintiff does not have a left eye and thus is total[ly] blind on the left
side.” Compl. ¶ 11. Plaintiff had the assistance of a note taker in the class. Compl.
¶¶ 21, 23.
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misconduct alleged." Id. Thus, "only a complaint that states a plausible claim for
relief survives a motion to dismiss." Id. at 1950. When considering a motion to
dismiss, the Court must accept all of the plaintiff's allegations as true in determining
whether a plaintiff has stated a claim for which relief could be granted. Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984).
DISCUSSION
I.

Intentional Infliction of Emotional Distress
In Count IV, Plaintiff alleges that on Wednesday, February 24, 2016, during her

composition class in front of 20 or more students, Archbold intentionally or recklessly
requested that Plaintiff read aloud to his classmates when she knew of his disability
or should have known that Plaintiff could not perform the requested task of reading
and that emotional distress would likely result. Compl. ¶ 66. It is further alleged
that Archbold intentionally or recklessly responded to Plaintiff in such a manner as to
force Plaintiff to disclose his disability to his classmates when Archbold knew or
should have know that emotional distress would likely result. Compl. ¶ 67. Plaintiff
then asserts that on Monday, February 29, 2016, Archbold again intentionally or
recklessly requested that Plaintiff read aloud in class when Archbold knew of
Plaintiff’s disability and knew or should have known Plaintiff could not perform the
requested task of reading and that emotional distress would likely result. Compl. ¶
68. On Wednesday, March 16, 2016, Plaintiff claims that during the class, Archbold
intentionally and recklessly requested that Plaintiff recite an essay which was typed
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in fine print when Archbold knew of Plaintiff’s disability and knew or should have
known Plaintiff could not perform the requested task of reading and that emotional
distress would likely result. Compl. ¶ 69. Subsequently during that class, after
Plaintiff did not read the essay as instructed, Archbold intentionally and recklessly
stated to Plaintiff, “I am trying to give you an equal opportunity to participate in this
class,” in front of a giggling audience of students when Archbold knew of Plaintiff’s
disability and knew or should have known Plaintiff could not perform the requested
task of reading and that emotional distress would likely result. Compl. ¶ 70. Plaintiff
alleges feeling severe emotional distress, humiliation and embarrassment due to
Archbold’s conduct. Compl. ¶¶ 25, 73.
Under Florida law, to state a claim for intentional infliction of emotional
distress, the following four elements must be shown: (1) extreme and outrageous
conduct; (2) an intent to cause, or reckless disregard to the probability of causing,
emotional distress; (3) severe emotional distress suffered by the plaintiff; and (4)
that the conduct complained of caused the plaintiff's severe emotional distress. Hart
v. United States, 894 F.2d 1539, 1548 (11th Cir.), cert. denied, 498 U.S. 980 (1990).
In Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985), the Florida
Supreme Court recognized the tort of intentional infliction of emotional distress, and
adopted the standard of § 46, Restatement (Second) of Torts as the appropriate
benchmark for the cause of action. Id. at 278–79. The comment to § 46 adds the
following to this definition:
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Liability has been found only where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which
the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to exclaim,
“Outrageous!”
Metropolitan Life, 467 So.2d at 278–79 (quoting Restatement (Second) of Torts § 46
cmt. d (1965)). The question of what constitutes outrageous conduct is judged by an
objective test. Id. Moreover, the issue is ordinarily one of law to be resolved by the
court, rather than a question of fact to be resolved by a jury. Metropolitan Life, 467
So.2d at 279; Dependable Life Ins. Co. v. Harris, 510 So.2d 985, 988 (Fla. Dist. Ct.
App. 1987).
Florida courts have construed the parameters of this cause of action extremely
narrowly. Whether a claim for intentional infliction of emotional distress will be held
is highly dependent on the allegations in the particular case. Gillis v. Sports
Authority, Inc., 123 F. Supp. 2d 611, 616 (S.D. Fla. 2000). In Doe v. Board of County
Commissioners, Palm Beach County, Florida, 815 F.Supp. 1448, 1450 (S.D. Fla. 1992),
the court held that where a plaintiff alleges a handicap, the Restatement specifically
provides that outrageous conduct:
may arise from the actor's knowledge that the other is peculiarly
susceptible to emotional distress, by reason of some physical or mental
condition or peculiarity. The conduct may become heartless, flagrant,
and outrageous when the actor proceeds in the face of such knowledge,
where it would not be so if he did not know.
Id. at 1450. In Doe, the Court found that the plaintiff had sufficiently stated a claim
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for intentional infliction of emotional distress because she alleged that her supervisor
knew of her mental handicap, harassed plaintiff for absences caused by the handicap,
harassed plaintiff for tardiness that resulted from treatment necessary for the
handicap; and, maliciously pestered Doe with intrusive questions about the nature
and extent of the handicap. Id. The plaintiff further alleged that her supervisor's
conduct was “outrageous” and that such conduct caused her to suffer severe
emotional distress. The Court held that absent plaintiff's mental handicap, the
defendant's alleged harassment and pestering of plaintiff would not qualify as
extreme and outrageous conduct in a work environment. Id.
In this case, Plaintiff alleges that Archbold asked him to read aloud in a college
course on multiple occasions despite knowing that Plaintiff suffered from a visual
disability. Compl. ¶¶ 66-69. Plaintiff also alleges that Archbold’s conduct forced
Plaintiff to disclose his disability to his classmates. Compl. ¶ 67. Finally, Plaintiff
alleges that Archbold stated that she was trying to give Plaintiff an equal opportunity
to participate in the class. Compl. ¶ 70. Plaintiff claims that these acts, when
Archbold knew he suffered from a visual disability, was outrageous beyond all bounds
of decency.
Plaintiffs’ complaint, taken as true and viewed in the light most favorable to
Plaintiff, does not allege “outrageous” conduct sufficient to state a claim for
intentional infliction of emotional distress against Archbold. The facts as a matter of
law are not so outrageous in character, and so extreme in degree, as to go beyond all
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possible bounds of decency.• Bilbrey v. Myers, 91 So.3d 887, 892 (Fla. Dist. Ct. App.
2012) (affirming dismissal of claim for intentional infliction of emotional distress
based on allegations that over an almost-two-year-period, defendant repeatedly and
falsely told various people that plaintiff was a homosexual with an immoral
character, and tried to break up his relationship with his fiancé). Therefore, because
the conduct alleged by Plaintiff does not rise to the level necessary to support a
claim for intentional infliction of emotional distress, Count IV fails to satisfy Rule 8(a)
and is dismissed. Haberski v. Bufano, 2017 WL 661546, at *9 (S.D. Fla. Feb. 17, 2017);
Khan v. BankUnited, Inc., 2017 WL 111604, at *2 (M.D. Fla. Jan. 11, 2017). The Court
concludes that leave to amend this claim would be futile, hence the claim for
intentional infliction of emotional distress is dismissed with prejudice.
II.

Invasion of Privacy - Public Disclosure of Private Facts
In Count VI, Plaintiff alleges that Archbold published a private fact (Plaintiff’s

visual disability) to a class “of 20 or more” college students. Compl. ¶ 22. Archbold
argues that Plaintiff’s claim against her for public disclosure of a private fact must
fail because she did not publish the fact to enough people. Plaintiff responds that
publishing to even one person is enough to satisfy the “publish” element of the claim.
Florida has adopted the Restatement's test of invasion of privacy based on
publication of private facts. Cape Publ’ns, Inc. v. Hitchner, 549 So.2d 1374 (Fla.
1989). To state a public disclosure of private facts claim, a plaintiff must allege (1)
the publication, (2) of private facts, (3) that are offensive, and (4) are not of public
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concern. Id. at 1377; Pierre-Paul v. ESPN Inc., 2016 WL 4530884, at *1 (S.D. Fla.
2016).
Publication
The publicity given to the private fact must be more than mere publication.
The fact must be made public by communicating it to the public at large or to so
many people that the matter must be regarded as substantially certain to become
one of public knowledge. Restatement (Second) of Torts § 652D cmt. a (1977)
(emphasis added). The difference is not one of the means of communication, which
may be oral, written or by any other means. It is one of a communication that
reaches, or is sure to reach, the public. “Thus it is not an invasion of the right of
privacy . . . to communicate a fact concerning the plaintiff's private life to a single
person or even to a small group of persons. On the other hand, any publication in a
newspaper or a magazine, even of small circulation, or in a handbill distributed to a
large number of persons, or any broadcast over the radio, or statement made in an
address to a large audience, is sufficient to give publicity within the meaning of the
term . . . The distinction, in other words, is one between private and public
communication.” Id.
There is no precise number that constitutes a large number of persons, and the
facts and circumstances of each case must be taken into consideration in determining
whether the disclosure was sufficiently public to support an invasion of privacy claim.
9 American Law of Torts § 30:31, Situations in Which Recovery Has Been Denied Page 8 of 13

Published Matter Disseminated to Few or Limited Number of Persons. In Lewis v.
Snap-on Tools Corp., 708 F.Supp. 1260, 1261-62 (M.D. Fla. 1989), a dealer sued a
manufacturer for invasion of privacy, alleging, among other things, that the
defendant told the plaintiff's customers that the plaintiff was stealing their payments
and told other dealers that the plaintiff was a bad influence. The court granted the
defendant's motion to dismiss, stating that the mere conclusory allegation that the
alleged disclosure was to large numbers of persons did not meet the requirement for
the cause of action that the publication be to the general public in such a manner as
to be outrageous and certain to become public knowledge. The court added that the
plaintiff's complaint did not sufficiently allege the disclosure of private facts. Id.
In this case, it is alleged that in front of a class of “20 or more students,”
Archbold three times asked Plaintiff to read aloud when he could not because of his
visual disability, that she responded to Plaintiff in such a manner as to force him to
disclose his disability to his classmates, and that she stated in front of the class, “I
am trying to give you an equal opportunity to participate in this class.” There are no
allegations that Plaintiff’s visual disability was made known to the general public, or
to so many people that it was substantially certain that his disability would become
public knowledge.
In Dancy v. Fina Oil & Chemical Co., 3 F. Supp. 2d 737 (E.D. Tex. 1997), a
jurisdiction that also follows the Restatement (Second) of Torts, an employer's
alleged conduct in publishing a list of employees with excessive absences did not
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constitute an actionable invasion of privacy, since the alleged facts were made
known only to some other employees, not to the general public, and the fact of
absenteeism could be gleaned by casual observation. See also, Bilbrey v. Myers, 91
So.3d 887, 892 (Fla. Dist. Ct. App. 2012) (affirming dismissal of invasion of privacy
tort because disclosure of plaintiff’s sexual orientation did not establish enough
publicity because the disclosure was only made to members of church); Eddy v.
Brown, 715 P.2d 74 (Okla. 1986) (disclosure to limited number of co-workers that
plaintiff was undergoing psychiatric treatment was not publication); Wells v. Thomas,
569 F.Supp. 426, 437 (E.D. Pa. 1993) (publication to community of employees at staff
meetings is not “publication” required by invasion of privacy cases).
Plaintiff does not disagree that the disclosure must be made public, but relies
upon Williams v. City of Minneola, which states that “a defendant may become liable
through revealing the matter to only one person, from whom the information
predictably goes to many - as in Beaumont v. Brown, 401 Mich. 80, 257 N.W.2d 522
(Mich. 1977) . . .”2 575 So.2d 683, 689 (Fla. Dist. Ct. App. 1991).

2

In Beaumont, the Michigan Supreme Court discussed the “Invasion of Privacy
in Michigan and Elsewhere.” Beaumont, 401 Mich. at 93-95. Later, in Bradley v.
Saranac Community Schools Bd. of Educ., 455 Mich. 285 (1997), the Michigan Supreme
Court considered “whether the personnel records of public school teachers and
administrators are exempt from disclosure under [Michigan's] Freedom of Information
Act[,]” and held that “the requested records must be disclosed because they are
public records and are not within any exemption under the FOIA.” Bradley, 455 Mich.
at 288-289. In so doing, the Court overruled Beaumont to the extent it conflicted
with the FOIA. Bradley, 455 Mich. at 302.
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In Beaumont, a former employee of the Department of Labor brought an action
against the director and the personnel director of the Department of Labor seeking to
recover for the alleged invasion of privacy based upon derogatory statements in a
letter written by the personnel director to the army reserve, allegedly resulting in
the plaintiff being subjected to military review. The Michigan Supreme Court held
that summary judgment for defendants was precluded by the existence of genuine
issues of material fact as to whether embarrassing private facts about plaintiff were
involved and whether there was public disclosure made through the letter being
passed through many hands in the army bureaucracy and being unnecessarily or
unreasonably included in a Civil Service Commission transcript of the case against
plaintiff.
The facts of Beaumont are inapposite to the situation presented in the instant
matter. There is no allegation that Plaintiff’s disability was revealed to persons from
“whom the information predictably goes to many.” Plaintiff argues in response to the
motion to dismiss that publication to 20 or more college students is sufficient to
allege publication to the public at large because college students regularly engage in
social media such as Facebook and Twitter. However, Plaintiff does not allege that
any of the students dispersed his allegedly private information on social media, or
that they were likely to do so. The allegation that Plaintiff’s visual impairment was
disclosed only to the students in the class, as a matter of law, fails to meet the
threshold for publication, as such a disclosure is not “substantially certain to become
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public knowledge.” Bilbrey v. Myers, 91 So.3d 887, 892 (Fla. Dist. Ct. App. 2012).3
CONCLUSION
Even when viewing the evidence in the light most favorable to Plaintiff, it is
clear Plaintiff has failed to state an actionable claim for invasion of privacy against
Archbold. Therefore, it is hereby
ORDERED AND ADJUDGED that Defendant Cynthia Archbold’s Motion to Dismiss
[DE 15]is granted. Count IV is dismissed with prejudice as any amendment to the
claim of intentional infliction of emotional distress would be futile. Count V is
dismissed without prejudice with leave to amend if Plaintiff can allege facts to
support the conclusion that his visual disability was communicated by Archbold to the
public at large or to so many people that the matter must be regarded as

3

The Court notes that the dialogue alleged in the Complaint does not
demonstrate that Archbold’s alleged statements disclosed any facts about Plaintiff’s
disability. Moreover, even if the interaction between Plaintiff and Archbold could be
considered to disclose Plaintiff’s disability, it is questionable whether this interaction
would be considered to invade Plaintiff’s privacy in a manner that a reasonable
person would consider highly offensive. When intimate details of a person’s life (for
example, sexual relations, or humiliating illnesses, or the most intimate personal
letters) “are spread before the public gaze in a manner highly offensive to the
ordinary reasonable man, there is an actionable invasion of his privacy, unless the
matter is one of legitimate public interest.” Restatement (Second) of Torts § 652D
cmt. b (1977). The Court also questions whether Plaintiff’s disability would be
considered a private fact given that he was blind in one eye, wore protective eye
wear, and had a personal note taker. Compl. ¶¶ 11, 21, 23. “[T]here is no liability for
giving further publicity to what the plaintiff himself leaves open to the public eye . .
.” Restatement (Second) of Torts § 652D cmt. b (1977).

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substantially certain to become one of public knowledge.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 24th day of March, 2017.
_________________________
KENNETH A. MARRA
United States District Judge

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