Marriott et al v. Unified School District No. 204, Bonner Springs-Edwardsville et al
MEMORANDUM AND ORDER granting 8 Motion to Dismiss. The federal claims are dismissed with prejudice and the state claims are dismissed without prejudice. Signed by District Judge Carlos Murguia on 9/8/17. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROB MARRIOTT, et. al.,
Case No. 17-2045
USD 204, BONNER SPRINGSEDWARDSVILLE, et. al.,
MEMORANDUM AND ORDER
Plaintiff Rob Marriott, along with his wife Dawn Marriott and their son B.M., a minor, bring
this suit against defendants USD 204 Bonner Springs-Edwardsville, and USD 204 administrators
Robert J. Van Maren, Kristi Hoffine, Jerry Abbott, and Joe Hornback. Plaintiffs are pursuing a variety
of state and federal claims all related to defendants’ alleged installation of a secret video camera in Rob
Marriott’s classroom. This matter is currently before the court on defendants’ Motion to Dismiss
(Doc. 8). Defendants argue plaintiffs have failed to state a claim because they had no reasonable
expectation of privacy in a public school classroom, and that defendants are entitled to qualified
immunity. For the reasons stated below, the court grants defendants’ motion.
The following facts are summarized from those set forth in plaintiffs’ complaint. Plaintiff Rob
Marriott was employed by USD 204 as a science teacher and track and cross country coach at Bonner
Springs High School from 2007–2015. During his tenure at Bonner Springs High School, defendant
Robert Van Maren was superintendent of USD 204, defendant Kristi Hoffine was employed as the
Directory of Secondary Instruction, and defendants Jerry Abbott and Joe Hornback both, at separate
times during Rob Marriott’s tenure, served as principal of Bonner Springs High School.
Rob Marriott resigned from Bonner Springs High School in 2015 and accepted a position at
Leavenworth High School. In early 2016, Rob Marriott learned that in 2009, USD 204 IT staff had
installed a camera in his science classroom and that Bonner Springs administrators had been secretly
taping him throughout his tenure at Bonner Springs High School. Rob Marriott alleges that the camera
was secretly installed at the direction of defendant Van Maren and defendant Hoffine because Van
Maren’s son and Hoffine’s daughter were students in his classroom during the 2008-2009 school year.
Rob Marriott is married to plaintiff Dawn Marriott and they have a son, B.M. Throughout Rob
Marriott’s employment at Bonner Springs High School, he, Dawn Marriott and B.M. used the
classroom to change their clothes for after-school activities. Rob Marriott alleges that whenever he or
his family used his classroom to change, he would always lock and secure the door to ensure privacy.
Upon discovery of the alleged secret camera, plaintiffs filed this suit in Wyandotte County
District Court asserting the following causes of action:
1) Intrusion Upon Seclusion Invasion of Privacy
3) Negligent Supervision of Employees (Defendant USD 204)
4) Negligent Supervision of a Child
5) Negligent Infliction of Emotional Distress
6) Intentional Infliction of Emotional Distress
7) Section 1983 Deprivation of Constitutional Rights Privacy Violation
Defendants removed the case to this court pursuant to 28 U.S.C. § 1331 and now move to
dismiss all claims.
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which
relief can be granted.” Rule 8(a)(2) states that a pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” To withstand a motion to dismiss under
12(b)(6), a complaint must contain “enough allegations of fact, taken as true, ‘to state a claim to relief
that is plausible on its face.’” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is plausible when “the
pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). When the complaint contains
well-pled factual allegations, a court should “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
a. Federal Claim
Plaintiffs have asserted a claim under 42 U.S.C. § 1983 for deprivation of their right to privacy
under the Fourth and Fourteenth Amendments to the United States Constitution. Defendants argue this
claim should be dismissed because plaintiffs have not established they had a reasonable expectation of
privacy in a public school classroom. Defendants further claim that they are entitled to qualified
immunity because it is not clearly established that video recording in a public classroom is a violation
of constitutional rights.
Claims brought under § 1983 allow “an injured person to seek damages against an individual
who has violated his or her federal rights while acting under color of state law.” Henderson v. Glanz,
813 F.3d 938, 951 (10th Cir. 2015). To succeed, a claimant must prove (1) a deprivation of a federally
protected right (2) by an actor acting under color of state law. Schaffer v. Salt Lake City Corp., 814
F.3d 1151, 1155 (10th Cir. 2016).
Here, plaintiffs claim their privacy rights, protected by the Fourth and Fourteenth Amendments,
have been violated by defendants’ alleged surreptitious videotaping and viewing of their undressed
bodies. Indeed, courts have found that video surveillance is an “extraordinarily intrusive method of
searching,” and that video surveillance in places of “heightened privacy” violates an individual’s
constitutional rights. See United States v. Mesa-Rincon, 911 F.3d 1433, 1442 (10th Cir. 1990);
Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 498 (6th Cir. 2008). Establishing that video
surveillance has violated an individual’s constitutional rights, however, requires that a party show they
had a “reasonable” or “legitimate” expectation of privacy. For example, the Fourteenth Amendment
protects an individual from “disclosure of information where the individual ‘has a legitimate
expectation of privacy [in that information].’” Stidham v. Peace Officer Standards & Training, 265
F.3d 1144, 1155 (10th Cir. 2001). Similarly, the Fourth Amendment protects against unreasonable
searches only when an individual has a reasonable expectation of privacy. United States v. Maestas,
639 F.3d 1032, 1035 (10th Cir. 2011) (“A defendant invoking the protection of the Fourth Amendment
must demonstrate that he personally has an expectation of privacy in the place searched, and that his
expectation is reasonable.”). This expectation of privacy must be both subjective and objectively
reasonable, meaning, the individual, by his conduct, must exhibit “an actual (subjective) expectation of
privacy,” and that that subjective expectation of privacy is “one that society is prepared to recognize as
‘reasonable.’” Smith v. Maryland, 442 U.S. 735, 740 (1979); see also O’Connor v. Ortega, 480 U.S.
709, 715 (1987) (determining when society may recognize a reasonable expectation of privacy requires
considering “the intention of the Framers of the Fourth Amendment, the uses to which the individual
has put a location, and our societal understanding that certain areas deserve the most scrupulous
protection from government invasion”).
While plaintiffs may have a right to be free from the government recording them in a private
state of undress, plaintiffs had no reasonable expectation of privacy in the place they chose to
undress—the public school classroom. Public employees can have a reasonable expectation of privacy
in their place of work, however, “some government offices may be so open to fellow employees or the
public that no expectation of privacy is reasonable.” Ortega, 480 U.S. at 718. In Ortega, the United
States Supreme Court found that a state hospital doctor had a reasonable expectation of privacy in his
desk and file cabinets, as they were not shared or accessible to anyone other than him. Id. The Court
noted, however, that “[g]iven the great variety of work environments in the public sector, the question
whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case
basis.” Id. Importantly, video surveillance in public places does not violate the Fourth Amendment as
“police may record what they normally may view with the naked eye.” Thompson v. Johnson Cnty.
Cmty. Coll., 930 F. Supp. 510, 507 (D. Kan. 1996) (quoting United States v. Taketa, 923 F.2d 665, 667
(9th Cir. 1991)). In Thompson, the court found that plaintiffs had no reasonable expectation of privacy
in a security personnel locker area because the area was not enclosed and was not designated for
exclusive use by security personnel. 930 F. Supp. at 509.
Here, plaintiffs claim they had a reasonable expectation of privacy in plaintiff Rob Marriott’s
classroom because they locked the classroom door when changing their clothes. Plaintiffs note that
employees have a reasonable expectation of privacy in their office and in areas of the workplace where
an individual takes actions to maintain his privacy. See United States v. Anderson, 154 F.3d 1225,
1230, 1233 (10th Cir. 1998) (recognizing an employee had a reasonable expectation of privacy in a
room at his place of employment, other than his own personal office, because he took his personal
possessions into the room, shut the door behind him, and covered the window.) In response to
defendants’ motion to dismiss, plaintiffs claim that while they were in the locked classroom they had
an expectation of privacy because the classroom was “for his exclusive use and other school personnel
did not have access.” (Doc. 15, at 7.) Yet plaintiffs did not plead any facts in their complaint to
establish that Rob Marriott had exclusive use of his public classroom, or that the school district had
explicitly provided the classroom for his private use. Instead, as defendants point out, Rob Marriott’s
classroom was not the same as his own personal office—it was a classroom in a public school, open to
students, administrators, other staff, custodial staff, and sometimes other members of the public. See
Plock v. Bd. of Educ. Pf Freeport Sch. Dist. No. 145, 545 F. Supp. 2d 755, 758 (N.D. Ill. 2007) (noting
“[a] classroom in a public school is not the private property of any teacher. A classroom is a public
space in which government employees communicate with members of the public.”). Plaintiffs do not
complain about defendants’ general placement of the camera in the classroom, as, presumably, they
recognize there is no expectation of privacy while a teacher is performing his public school teaching
duties. Plaintiffs’ only complaint is that the video camera placed in the public classroom also recorded
them undressing when they assumed they had secured their privacy by locking the classroom door.
Plaintiffs cannot reasonably expect that simply locking a door would transform a public school
classroom into a secured area suitable for undressing. This, the court finds, is not a subjective
expectation of privacy that society would be willing to recognize as reasonable. The cases cited by
plaintiffs supporting their argument are all easily distinguishable as they recognize a right to privacy
from video surveillance in areas reserved traditionally for changing clothes—restrooms and locker
rooms. See, e.g., Brannum, 516 F.3d at 498; Williams v. City of Tulsa, Okla., 393 F. Supp. 2d 1124,
1130 (N.D. Okla. 2005). For these reasons, the court finds there was no expectation of privacy in Rob
Marriott’s classroom, and therefore, plaintiffs’ claims under § 1983 must fail.
Even if plaintiffs could establish a reasonable expectation of privacy, they have failed to
overcome defendant’s assertion of qualified immunity.
Qualified immunity recognizes “the need to protect officials who are required to exercise their
discretion and the related public interest in encouraging the vigorous exercise of official authority.”
Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). It protects “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
When a defendant has moved for summary judgment based on qualified immunity, the court
must “view the facts in the light most favorable to the non-moving party and resolve all factual
disputes and reasonable inferences in its favor.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th
A defendant is entitled to qualified immunity unless the plaintiff can show “(1) a
reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly
established at the time of the defendant’s conduct.” Id. The Supreme Court has held a court has the
discretion to consider “which of the two prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223,
Here, plaintiffs have failed to show that their right to not be videotaped in a public school
classroom is clearly established. Determining when a law is clearly established ordinarily requires “a
Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from
other courts must have found the law to be as plaintiff maintains.” Booker, 745 F.3d at 427. Plaintiffs
claim that Tenth Circuit precedent put defendants on notice that “six years of warrantless, surreptitious
videotaping of people undressing would not be tolerated under the Constitution.” (Doc. 15, at 17.)
Yet, as noted above, defendants allegedly placed a video camera in a public school classroom—not in
an area designated for undressing. Plaintiffs have not cited any authority that would clearly establish a
right to not be video recorded in a public school classroom. For these reasons, the court finds
defendants are entitled to qualified immunity on plaintiffs’ § 1983 claim.
b. State Claims
Plaintiffs bring six different state law torts against defendants, all related to the alleged video
recording. Federal district courts have supplemental jurisdiction over state law claims that are part of
the “same case or controversy” as federal claims. 28 U.S.C. § 1367(a). “[W]hen a district court
dismisses the federal claims, leaving only the supplemental state claims, the most common response
has been to dismiss the state claim or claims without prejudice.” United States v. Botefuhr, 309 F.3d
1263, 1273 (10th Cir. 2002) (quotation marks, alterations, and citation omitted). Whether to assert
supplemental jurisdiction is within the court’s discretion. Brinkman v. State Dept. of Corr., 863 F.
Supp. 1479, 1488 (D. Kan. 1994).
Because plaintiffs’ federal claim has been dismissed, the court finds it has no supplemental
jurisdiction over the remaining state claims. These claims are therefore dismissed without prejudice.
IT IS THEREFORE ORDERED that defendants’ Motion to Dismiss (Doc. 8) is granted.
The federal claims are dismissed with prejudice and the state claims are dismissed without prejudice.
This case is closed.
Dated September 8, 2017, at Kansas City, Kansas.
s/ Carlos Murguia
United States District Judge
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