Ervin v. South Central Kentucky Community College
Filing
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MEMORANDUM OPINION by Chief Judge Joseph H. McKinley, Jr. on 10/3/2013. The Court will enter a separate Order dismissing this action for failure to state a claim upon which relief may be granted. cc: Plaintiff, pro se; Defendants; General Counsel, J&PSC (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
ANTONIO M. ERVIN
PLAINTIFF
v.
CIVIL ACTION NO.1:13CV-P104-M
SOUTH CENT. KY. CMTY. COLL. et al.
DEFENDANTS
MEMORANDUM OPINION
Pro se Plaintiff, Antonio M. Ervin, proceeding in forma pauperis, has filed a complaint
and two amendments (DNs 1, 13 & 14). This matter is before the Court for screening pursuant
to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on
other grounds by Jones v. Brock, 549 U.S. 199 (2007). For the reasons set forth below, this
action will be dismissed.
I.
Plaintiff brings this action against three Defendants: (1) South Central Kentucky
Community College [SCKCC]; (2) Phillip W. Neal, the Provost of SCKCC; and (3) “2nd
unknown employeer.” It appears that Plaintiff desires to bring this action against the individuals
in both their individual and official capacities. The relief Plaintiff seeks is monetary damages for
“my worring/Brech of trust,” “my identity Ben leak also my confidentially,” and “Pain and
Suffering, on top of wat an already goin threw.” Plaintiff also seeks “the indenitity of the other
employer who receive my personal information.”
In his amendment to the complaint which includes the most detailed statement regarding
the facts about which he complains (DN 14), Plaintiff states as follows:
On May 16, 2013 I Antonio Ervin received a document from Southcentral Kentucky
Community and Technical College stateing “that they are comitted to protecting my
privacy. Furthermore Southcentral Kentucky Community and Technical College
allowed one of their employee account become compromised. Therefore my
personal Information including my name, Social Security number, test scores, Credit
Card number were obtained by another employee email. Kentucky Community and
Technical College Informed me that I Should contact the Credit-reporting agecies
and place a “Fraud Alert on my Credit bureau account. In Observation my personal
information is at risk of Indenitiy theft due to the action of The Kentucky
Community and Technical College.
Plaintiff further states that even though SCKCC stated they were committed to protecting his
privacy, “that didn’t happan” (DN 13). He states that he feels SCKCC could have done “a Better
Job of protecting my personal informaion which Is very valuable to me” (DN 13).
Plaintiff has filed a copy of the May 16, 2013, document to which he refers. This letter
indicates that it is from Southcentral Kentucky Community and Technical College [College] and
is signed by Phillip W. Neal, Provost. The letter is addressed to “Dear Sir or Madam.” The
letter assures Plaintiff that the College goes “to great lengths to assure that [his] personal
information is secure.” Thereafter, Defendant Neal states, “However, we just learned that one of
our employee user accounts was compromised. Your personal information was found in a
document in the employee’s email.” The letter goes on to state the information the document
contained, Plaintiff’s name, social security number, and test score, and encourages him to place a
“Fraud Alert” on his credit bureau account.
II.
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the complaint, or any
portion of it, if it determines that the complaint is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
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from such relief. 28 U.S.C. § 1915A; McGore v. Wrigglesworth, 114 F.3d at 604. A claim is
legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams,
490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as frivolous where it is
based on an indisputably meritless legal theory or where the factual contentions are clearly
baseless. Id. at 327. In order to survive dismissal for failure to state a claim, “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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not
require [it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or to create a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir. 1975). To command otherwise would require the Court “to explore exhaustively all
potential claims of a pro se plaintiff, [and] would also transform the district court from its
legitimate advisory role to the improper role of an advocate seeking out the strongest arguments
and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
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III.
Plaintiff brings this action under 42 U.S.C. § 1983. “Section 1983 creates no substantive
rights, but merely provides remedies for deprivations of rights established elsewhere.” Flint ex
rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th Cir. 2001). Two allegations are required
to state a claim under § 1983. Gomez v. Toledo, 446 U.S. 635, 640 (1980). First, “a plaintiff
must allege the violation of a right secured by the Constitution and laws of the United States,”
West v. Atkins, 487 U.S. 42, 48 (1988), and second, he “must show that the alleged deprivation
was committed by a person acting under color of state law.” Id. “Absent either element, a
section 1983 claim will not lie.” Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
Plaintiff states that “his privacy was violated.” Further, the May 16, 2013, letter to
Plaintiff indicates that Plaintiff’s “[n]ame, social security number, and test score . . . could
possibly have been seen by another . . . .” Essentially, Plaintiff is complaining that his private
information may have been viewed by people unauthorized to view it, thus placing him at risk of
identity theft. A claim in which allegedly protected private information is improperly released to
others is often referred to as an informational-privacy interest claim. Initially, the Court notes
that, unlike informational-privacy interest claims, the facts presented by Plaintiff state only that
there is the possibility that his information has been viewed by an unauthorized viewer. Further,
according to the complaint and amendments, there appears to be no allegation that Defendants
have willingly provided Plaintiff’s information to another. However, given the Court’s
responsibility to view the complaint in the light most favorable to Plaintiff, the Court will
presume, but not decide, that Plaintiff alleges an informational-privacy interest claim. Even so
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presuming, Plaintiff fails to allege the violation of a right secured by the Constitution or laws of
the United States.
Plaintiff fails to state a claim under the Privacy Act, 5 U.S.C. § 552a, because the Sixth
Circuit has held that the Privacy Act only applies to federal agencies. Schmitt v. City of Detroit,
395 F.3d 327, 331 (6th Cir. 2005). As a constitutional claim, his action also fails. The Sixth
Circuit has recognized “an informational-privacy interest of constitutional dimension in only two
instances: (1) where the release of personal information could lead to bodily harm, and (2) where
the information released was of a sexual, personal, and humiliating nature.” Wiles v. Ascom
Transp. Sys., Inc., 478 F. App’x 283, 295 (6th Cir. 2012) (citations omitted). The facts set forth
by Plaintiff do not fall into either of these two instances. Further, the Constitution does not
provide Plaintiff a right to privacy in his social security number or the other information he
alleges may have been improperly released. See Paul v. Davis, 424 U.S. 693 (1976) (finding that
the police chiefs’ actions of distributing a flyer captioned “Active Shoplifters” which contained
plaintiff’s photograph and name did not violate any constitutional right to privacy); Lambert v.
Hartman, 517 F.3d 433, 445 (6th Cir. 2008) (finding that the Clerk of Court’s providing of
“unfettered internet access to people’s Social Security numbers was unwise,” but not
unconstitutional); Cassano v. Carb, 436 F.3d 74, 75 (2d Cir. 2006) (“We also agree . . . that the
Constitution does not provide a right to privacy in one’s SSN. Like the Seventh Circuit and
other federal courts to address this question, we decline to expand the constitutional right to
privacy to cover the collection of SSNs.”) (citing McElrath v. Califano, 615 F.2d 434, 441 (7th
Cir. 1980) and Doyle v. Wilson, 529 F. Supp. 1343, 1348 (D. Del. 1982)).
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For these reasons, the Court will enter a separate Order dismissing this action for failure
to state a claim upon which relief may be granted.
Date:
October 3, 2013
cc:
Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4414.003
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