STUMM et al v. TOWN OF PITTSBORO

Filing 24

ORDER - The Plaintiffs in this case - Matthew Stumm, Jason Stumm, and Brian Helmer - are current or former Pittsboro Police officers who allege that the Chief of Police and a Police Major recorded their conversations without their knowledge and wi thout a court order in violation of the Fourth Amendment to the U.S. Constitution. Relatedly, Plaintiffs allege that Carri Weber, a Captain with the Plainfield Police Department, violated the Federal Wiretap Act, 18 U.S.C. § 2510, et seq., wh en she used and disclosed the recorded conversations while conducting an investigation into alleged misconduct on the part of Matthew Stumm. Presently pending before the Court is a Motion to Dismiss filed by Captain Weber. [Filing No. 12 .] For t he reasons that follow, the Motion is GRANTED IN PART and DENIED IN PART. For the reasons explained herein, Captain Weber's Motion to Dismiss 12 is GRANTED IN PART and DENIED IN PART, as follows: (1) the Motion is GRANTED as to Mr. Helmer and Jason Stumm, and their claims against her are DISMISSED WITHOUT PREJUDICE, and (2) the Motion is DENIED as to Matthew Stumm's claim. Plaintiffs have thirty days to move to amend their Complaint if they intend to continue to pursue the cl aims that have been dismissed without prejudice. Failure to file an amended complaint within this time period will result in a dismissal WITH PREJUDICE with respect to such claims. (See Order). Signed by Judge Jane Magnus-Stinson on 3/8/2018. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JASON A STUMM,
MATTHEW W STUMM,
BRIAN T HELMER,

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Plaintiffs,
v.
TOWN OF PITTSBORO,
CHRISTI PATTERSON,
LIEUTENANT SCOTT KING,
CARRI WEBER,1
Defendants.

No. 1:17-cv-04296-JMS-MJD

ORDER
The Plaintiffs in this case – Matthew Stumm, Jason Stumm, and Brian Helmer – are current
or former Pittsboro Police officers who allege that the Chief of Police and a Police Major recorded
their conversations without their knowledge and without a court order in violation of the Fourth
Amendment to the U.S. Constitution. Relatedly, Plaintiffs allege that Carri Weber, a Captain with
the Plainfield Police Department, violated the Federal Wiretap Act, 18 U.S.C. § 2510, et seq.,
when she used and disclosed the recorded conversations while conducting an investigation into
alleged misconduct on the part of Matthew Stumm. Presently pending before the Court is a Motion
to Dismiss filed by Captain Weber. [Filing No. 12.] For the reasons that follow, the Motion is
GRANTED IN PART and DENIED IN PART.

Although Plaintiffs listed “CARRI WEBER” in the caption of their initial Complaint, [Filing No.
1], they listed her on the docket as “CARRIE WEBER,” see ECF 1:17-cv-04296. In her Motion
to Dismiss, Captain Weber refers to herself as the former. As such, the Clerk is directed to update
the docket to reflect the correct spelling of Captain Weber’s name as “CARRI WEBER.”
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I.
STANDARD OF REVIEW
Under Rule 12(b)(6), a party may move to dismiss a claim that does not state a right to
relief. The Federal Rules of Civil Procedure require that a complaint provide the defendant with
“fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). In reviewing
the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all
permissible inferences in favor of the plaintiff. See Active Disposal Inc. v. City of Darien, 635
F.3d 883, 886 (7th Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether the complaint
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The
Court will not accept legal conclusions or conclusory allegations as sufficient to state a claim for
relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations
must plausibly state an entitlement to relief “to a degree that rises above the speculative level.”
Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id.
II.
BACKGROUND
The following are the factual allegations in the Complaint, which the Court must accept
as true at this time:
Sometime prior to the end of 2016, Pittsboro Chief of Police Christi Patterson directed
Major Scott King to install video surveillance cameras in the front area of the building that houses
the Pittsboro Police Department (the “Department”). [Filing No. 1 at 3.] Chief Patterson and

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Major King then informed members of the Department that the front area of the building would
be monitored by cameras, but the area would not be subject to audio recording because the cameras
were not capable of recording audio. [Filing No. 1 at 3.] For over a year, Chief Patterson and
Major King surreptitiously recorded and listened to conversations that occurred in the front area
of the Department building between the Department’s officers, including Plaintiffs Matthew
Stumm, Jason Stumm, and Brian Helmer. [Filing No. 1 at 4.] Chief Patterson and Major King did
so without a warrant, a court order, or consent on the part of Plaintiffs. [Filing No. 1 at 5.]
Meanwhile, in late 2016, Matthew Stumm, who was then employed by the Department,
became concerned that Chief Patterson and Major King were being paid for hours that they did
not work, and began obtaining documents in an effort to confirm his suspicion. [Filing No. 1 at
3.]
In February 2017, Chief Patterson prepared a report accusing Matthew Stumm of defaming
a fellow officer and making statements that were damaging to morale, and she placed him on
administrative leave. [Filing No. 1 at 3.] Chief Patterson then requested that Captain Carri Weber
of the Plainfield Police Department conduct an investigation into Matthew Stumm’s misconduct.
[Filing No. 1 at 4.]
As part of her investigation, Captain Weber conducted an interview of Matthew Stumm,
during which he acknowledged making derogatory statements about Chief Patterson and Major
King. [Filing No. 1 at 4.] Captain Weber informed Matthew Stumm that she had listened to
recordings of his comments about Chief Patterson and Major King and that he could obtain copies
of the conversations from the Pittsboro Police Commission’s attorney. [Filing No. 1 at 4.]
Matthew Stumm subsequently obtained the recordings. [Filing No. 1 at 4.]

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In October 2017, Chief Patterson informed the Pittsboro Police Commission that she would
seek Matthew Stumm’s termination. [Filing No. 1 at 4.]
On November 16, 2017, Plaintiffs filed suit against the Town of Pittsboro acting by and
through the Department, Chief Patterson in her official and individual capacities, and Major King
and Captain Weber in their individual capacities. [Filing No. 1.] With respect to Pittsboro,
Plaintiffs allege that the city maintains an unconstitutional and illegal policy of intercepting,
recording, and disclosing conversations. [Filing No. 1 at 5.] In addition, Plaintiffs contend that
Chief Patterson and Major King’s actions in intercepting, recording, and disclosing their private
conversations constitute an illegal search in violation of the Fourth Amendment and the Federal
Wiretap Act. [Filing No. 1 at 5.] Plaintiffs further allege that Captain Weber violated the Federal
Wiretap Act by using and disclosing Plaintiffs’ recorded conversations. [Filing No. 1 at 5.]
Captain Weber filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) alleging that the allegations in the Complaint do not state a cause of action against her
and her Motion is now ripe for the Court’s review.
III.
DISCUSSION
Captain Weber makes two arguments in support of her Motion to Dismiss, one in relation
to Brian Helmer and Jason Stumm’s claim against her, and the other pertaining to Matthew
Stumm’s claim against her. The Court will discuss each argument, in turn.
A.

Brian Helmer and Jason Stumm’s Claim against Captain Weber

Captain Weber first argues that Plaintiffs have not alleged any facts upon which Mr.
Helmer or Jason Stumm could assert a claim against her. [Filing No. 13 at 5.] In response,
Plaintiffs acknowledge that “the Complaint does not expressly allege” that Captain Weber used or
disclosed recordings of Mr. Helmer or Jason Stumm, but they argue that they should receive the
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“benefit of imagination.” [Filing No. 20 at 3.] Plaintiffs “believe that discovery will show” that
Mr. Helmer and Jason Stumm were involved in many of the conversations at issue and argue that
they have stated a claim against Captain Weber because they “hypothesize” that Captain Weber
listened to hours of conversations between Matthew Stumm and either Mr. Helmer or Jason
Stumm. [Filing No. 20 at 4.] In her reply brief, Captain Weber argues that this Court should not
accept Plaintiffs’ “‘hypothesis’ because it is not an inference that can be reasonably drawn from
the allegations in the Complaint.” [Filing No. 21 at 4.] Captain Weber further contends Plaintiffs
should amend their Complaint if they have evidentiary support for such claims, or believe they
could have such support after discovery. [Filing No. 21 at 4.]
At the outset, the Court notes that Federal Rule of Civil Procedure 15(a)(1)(B) permits a
plaintiff to amend a complaint once as a matter of course in response to a motion to dismiss. Brown
v. Bowman, 2011 WL 1296274, *16 (N.D. Ind. 2011). The 2009 notes to that rule emphasize that
this amendment “will force the pleader to consider carefully and promptly the wisdom of amending
to meet the arguments in the motion.” Here, Plaintiffs chose not to revise their allegations
regarding Mr. Helmer or Jason Stumm despite being aware of Captain Weber’s arguments in
support of dismissal, and chose instead to brief the current Motion to Dismiss.
Plaintiffs rely upon Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251
(7th Cir. 1994), in arguing that they should receive the benefit of imagination so long as any
hypotheses they present are consistent with the complaint. The same line Plaintiffs quote from
Sanjuan was also quoted by the Supreme Court in Twombly in holding that “once a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the allegations
in the complaint.” Twombly, 550 U.S. at 563. But Twombly also teaches that there is both a line
between possibility and plausibility of entitlement to relief, as well as a “need at the pleading stage

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for allegations plausibly suggesting (not merely consistent with)” relief. Id. at 557 (holding that
such a requirement “reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’
possess enough heft to ‘sho[w] that the pleader is entitled to relief.’”).
In this case, the Complaint does not contain allegations that plausibly suggest that Mr.
Helmer or Jason Stumm are entitled to relief from Captain Weber. Such a defect could have likely
been efficiently and effectively cured had Plaintiffs opted to amend their Complaint as a matter of
course pursuant to Rule 15(a)(1)(B). As it now stands, Captain Weber’s Motion to Dismiss is
GRANTED as to Mr. Helmer and Jason Stumm, and their claims against her are DISMISSED
WITHOUT PREJUDICE.
B.

Matthew Stumm’s Claim against Captain Weber

With respect to Matthew Stumm, Captain Weber argues that her use and disclosure of the
recording falls within an exemption to the Federal Wiretap Act “for law enforcement officers who
use the contents of any oral communication within the performance of the officer’s official duties.”
[Filing No. 13 at 6 (citing 18 U.S.C. § 2517(2)).]
In their response brief, Plaintiffs contend that the two exceptions in the Federal Wiretap
Act pertaining to investigative or law enforcement officers apply “only to knowledge obtained ‘by
any means authorized by this chapter.’” [Filing No. 20 at 4 (quoting 18 U.S.C. § 2517(1) and 18
U.S.C. § 2517(2)).] Plaintiffs therefore argue that such exceptions “have no application to the case
at bar” because the recordings were made “unlawfully and for improper purposes.” [Filing No. 20
at 4.]
In her reply brief, Captain Weber argues that the Federal Wiretap Act “only prohibits the
use or disclosure of information when the person ‘know[s] or [has] reason to know that the
information was obtained through the interception of a wire, oral, or electronic communication in

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violation of [the Federal Wiretap Statute].’” [Filing No. 21 at 2 (quoting 18 U.S.C. § 2511).]
Because the Complaint does not allege any facts to show that Captain Weber knew or had reason
to know the recording was in violation of the Federal Wiretap Statute, Captain Weber contends
that the Complaint fails to allege a critical element necessary to state a claim against Weber.
“Congress enacted the Federal Wiretap Act for the dual purpose of protecting the privacy
of wire and oral communications, and delineating the conditions under which such
communications may be intercepted.” Abbott v. Vill. of Winthrop Harbor, 205 F.3d 976, 980 (7th
Cir. 2000) (citations omitted). The Act provides that any person who “(c) intentionally discloses,
or endeavors to disclose, to any other person . . . or (d) intentionally uses, or endeavors to use, the
contents of any wire, oral, or electronic communication, knowing or having reason to know that
the information was obtained through the interception of a wire, oral, or electronic communication
in violation of this subsection” shall be found in violation of the statute and subject to civil or
criminal penalties. 18 U.S.C. § 2511. The two exceptions to §2511 violations that Captain Weber
highlights are found in 18 U.S.C. § 2517 and “merely describe[] the limited purposes for which
information concerning electronic communications received by authorized means may be
disclosed under the Wiretap Act.” United States v. Rice, 2017 WL 5495584, at *3 (3d Cir. Nov.
16, 2017). The relevant subsections of § 2517 provide that any investigative or law enforcement
officer who has obtained knowledge of the contents of any wire, oral, or electronic communication,
or evidence derived therefrom, “by any means authorized by this chapter,” may “disclose such
contents to another investigative or law enforcement officer” and “use such contents to the extent
such use is appropriate to the proper performance of his [or her] official duties.” 18 U.S.C. §
2517(1); 18 U.S.C. § 2517(2). However, a circuit split exists as to what constitutes “any means
authorized by this chapter” in § 2517(1) and (2).

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In Forsyth v. Barr, 19 F.3d 1527 (5th Cir. 1994), the Fifth Circuit concluded that
information disclosed or used under subsections (1) and (2) of § 2517 “need not be only that which
is intercepted ‘in accordance with’ the Act.” Id. at 1543. Instead, under “the unique facts and
circumstances” of Forsyth, where “the appellees did not participate in or procure the interception,”
the Fifth Circuit held that the disclosure and use of communications was authorized by §2517(1)
and (2). Id. at 1545.
The D.C. Circuit disagreed with the reasoning in Forsyth, and held that government
investigators “were not shielded by the law enforcement exception when they used a tape they had
reason to know was illegally intercepted.” Berry v. Funk, 146 F.3d 1003, 1013 (D.C. Cir. 1998)
(“We simply do not understand the Fifth Circuit’s use of . . . legislative history to justify a broader
knowing use of illegally intercepted conversations against one of the speakers.”). Similarly, the
Ninth Circuit held that “[t]here are situations where law enforcement officers could gain knowledge
of the contents of a wiretap by authorized means, even though the interception was not in accordance
with the law. One way is lack of scienter.” Chandler v. U.S. Army, 125 F.3d 1296, 1300 (9th Cir.
1997).
This Court has not found, and the parties do not suggest, any Seventh Circuit case on the issue
of what constitutes “any means authorized by this chapter” in 18 U.S.C. § 2517(1) and (2).2 Captain
Weber cites the Fifth Circuit’s opinion in Forsyth to support her argument that her use and disclosure

of recordings was authorized by § 2517 despite Plaintiffs’ allegation that the recordings were not
intercepted in accordance with the Federal Wiretap Act. Notably, however, Captain Weber does

Plaintiffs cite United States v. Dorfman in arguing that an invasion of privacy under the Federal
Wiretap Act “is not simply ‘over and done with’ when an unlawful intrusion has been effected.
Rather, the disclosure or use of information obtained through such an intrusion amounts to a
separate injury to the victim’s privacy interest.” 690 F.2d 1217, 1228 (7th Cir. 1982). However,
Dorfman does not address what constitutes “any means authorized by this chapter” under 18
U.S.C. § 2517(1) or (2).
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not argue that this Court should hold that her disclosure and use of the recordings were permitted
because she did not participate in or procure the interception. Rather, Captain Weber argues that
“[t]he Complaint does not allege any facts to show that [she] knew or had reason to know the recording
was in violation of the Federal Wiretap Statute.” [Filing No. 21 at 2.] As such, this Court need not
delve into the Circuit split, but instead considers the narrower question of whether Plaintiffs’
Complaint plausibly alleges that Captain Weber knew or had reason to know that the recordings were
illegally intercepted.
In this case, Captain Weber is correct that Plaintiffs did not specifically include language in
their Complaint suggesting that she knew or should have known that the recordings at issue were
illegally intercepted. But that is not the standard to which this Court must hold Plaintiffs’ Complaint.
On this point, the Seventh Circuit’s recent discussion in Chapman v. Yellow Cab Coop. is instructive:
To the extent the district court demanded that complaints plead facts—not only facts
that bear on the statutory elements of a claim, but also facts that bear on judicially
established standards—it was mistaken. Ever since their adoption in 1938, the Federal
Rules of Civil Procedure have required plaintiffs to plead claims rather than facts
corresponding to the elements of a legal theory. . . . Because complaints need not
identify the applicable law, it is manifestly inappropriate for a district court to demand
that complaints contain all legal elements (or factors) plus facts corresponding to each.
875 F.3d 846, 848 (7th Cir. 2017) (citations omitted).
The Court finds that, consistent with the allegations contained in the Complaint, it is plausible
that Captain Weber knew or had reason to know that the recordings were illegally intercepted. For
example, Plaintiffs’ Complaint alleges that Captain Weber began her investigation at the request of
Chief Patterson and that she later “informed” Matthew Stumm that his conversations had been
recorded. [Filing No. 1 at 4.] It is therefore plausible that Captain Weber possessed the requisite
scienter such that her use and disclosure of the documents were not permitted by 18 U.S.C. § 2517(1)
and (2). Put another way, Plaintiffs’ claim against Captain Weber relating to Matthew Stumm is

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plausible under the standards set forth in Iqbal and Twombly. Accordingly, Captain Weber’s Motion
to Dismiss is DENIED as to Matthew Stumm’s claim.

IV.
CONCLUSION
For the reasons explained herein, Captain Weber’s Motion to Dismiss [12] is GRANTED
IN PART and DENIED IN PART, as follows: (1) the Motion is GRANTED as to Mr. Helmer
and Jason Stumm, and their claims against her are DISMISSED WITHOUT PREJUDICE, and
(2) the Motion is DENIED as to Matthew Stumm’s claim.
Plaintiffs have thirty days to move to amend their Complaint if they intend to continue to pursue
the claims that have been dismissed without prejudice. Failure to file an amended complaint within
this time period will result in a dismissal WITH PREJUDICE with respect to such claims.

Date: 3/8/2018

Distribution via ECF only to all counsel of record.

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