Cooper et al v. Hutcheson

Filing 73

MEMORANDUM AND ORDER re: 69 MOTION to Dismiss Case filed by Defendant Securus Technologies, Inc., Defendant Cory Hutcheson. IT IS HEREBY ORDERED that Defendant Securus Technologies, Inc.'s Motion to Dismiss (Doc. 69), is GRANTED in part. IT IS FURTHER ORDERED that Count V of Plaintiffs' Second Amended Complaint is DISMISSED without prejudice. Signed by District Judge John A. Ross on 7/13/20. (CSG)

Case: 1:17-cv-00073-JAR Doc. #: 73 Filed: 07/13/20 Page: 1 of 12 PageID #: 231

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

WILLIAM T. COOPER, et al.,
Plaintiffs,
vs.
CORY HUTCHESON, et al.,
Defendants.

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Case No. 1:17-cv-00073-JAR

MEMORANDUM AND ORDER
This matter is before the Court on a Motion to Dismiss filed by Defendant Securus
Technologies, Inc. (“Securus”). (Doc. 69.) Securus seeks to dismiss all claims against it. (Id.)
Plaintiffs William T. Cooper, Jay R. Holcomb, Jeffery D. Johnson, Jeremy S. Stoelting, and James
D. Patton filed a response in opposition (Doc. 70), and Securus has replied (Doc. 71).

Background
Plaintiff allege the following in their Second Amended Complaint (Doc. 53): Securus is a
telecommunications company that offers, among other services, “Location Based Services”
(“LBS”)—individual tracking that works by sending a “ping” to that individual’s cellular
telephone and triangulating which cell tower reacts. Before each search, the LBS program prompts
users to upload documentation showing that the search is authorized.
The Sheriff’s Department for Mississippi County, Missouri, contracted for LBS from
Securus. Defendant Cory Hutcheson was the Sheriff for Mississippi County and had access to the
Securus LBS program and used it to conduct unauthorized searches on Plaintiffs and others. To
skirt the requirement to submit authorizing documentation, Hutcheson routinely uploaded
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unrelated documents including a copy of his health insurance policy, pages from the Mississippi
County Sheriff’s training materials, forged consents, and documents he had notarized himself. The
document upload requirement is the only safeguard against misuse of the LBS system and Securus
does not independently verify or otherwise ensure that the documents are legitimate.
Plaintiffs allege that Hutcheson’s use of the LBS program constituted an unreasonable
search in violation of the Fourth Amendment. Plaintiffs argue that Securus is liable under 42
U.S.C. § 1983 for Hutcheson’s abuse of the program due to its failure to properly safeguard against
misuse. In addition, they advance state law claims for invasion of privacy and negligence against
Securus.
Securus now moves to dismiss the claims against it, arguing that the § 1983 claim fails
because Securus is not a state actor and that Hutcheson’s actions were not unconstitutional. (Doc.
69.) In addition, Securus argues that Plaintiffs did not have an enforceable right to privacy related
to their cell phone location data. (Id.) Finally, it argues that Plaintiffs’ negligence claim fails
because Securus had no duty to prevent Hutcheson’s misuse. (Id.)

Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), “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 claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “While 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
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of

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the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration
in original) (citations omitted). “When ruling on a motion to dismiss [under Rule 12(b)(6)], the
district court must accept the allegations contained in the complaint as true and all reasonable
inferences from the complaint must be drawn in favor of the nonmoving party.” Young v. City of
St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).

Discussion
Plaintiffs’ 42 U.S.C. § 1983 Claim
In Count II of their Second Amended Complaint, Plaintiffs allege that Securus is liable
under § 1983. (Doc. 53 at ¶¶ 48-57.) “The essential elements of a § 1983 claim are (1) that the
defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived the
plaintiff of a constitutionally protected federal right.” Schmidt v. City of Bella Villa, 557 F.3d 564,
571 (8th Cir. 2009) (citing DuBose v. Kelly, 187 F.3d 999, 1002 (8th Cir. 1999)).
a. State Actor
Securus argues that it cannot be liable under § 1983 because it is not a state actor. “A
public official ‘acts under color of law when he misuses power possessed by virtue of . . . law and
made possible only because he was clothed with the authority of . . . law.’” Ramirez-Peyro v.
Holder, 574 F.3d 893, 900 (8th Cir. 2009) (quoting United States v. Colbert, 172 F.3d 594, 596
(8th Cir. 1999)). The United States Supreme Court has recognized several circumstances in which
a private party may also be characterized as a state actor, including: (1) where the state has
delegated to a private party a power “traditionally exclusively reserved to the State,” see Jackson
v. Metro. Edison Co., 419 U.S. 345, 352 (1974); (2) where a private actor is a “willful participant
in joint activity with the State or its agents,” see Adickes v. S.H. Kress & Co., 398 U.S. 144, 151
(1970); and (3) where there is “pervasive entwinement” between the private entity and the
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state, see Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 291 (2001). In
every case, Plaintiff must show that there is a “close nexus” between the state and the private party
as well as between the state and the alleged deprivation itself. Meier v. City of Saint Louis, 934
F.3d 824, 829 (8th Cir. 2019) (quoting Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th
Cir. 2007)).
The parties devote substantial argument to whether Securus’s provision of LBS amounts
to a delegation of a traditional government function. (See Docs. 69 at 4-5, 70 at 4.) But the Court
concludes that, at this stage of the proceeding, Plaintiffs have alleged sufficient facts from which
the Court could reasonably conclude that Securus was a “willful participant in joint activity with
the State or its agents.” Adickes, 398 U.S. at 151. Put simply, the Mississippi County Sheriff’s
Department could not conduct LBS tracking without Securus and Securus—which asserts that its
users are “exclusively law enforcement personnel” (Doc. 69 at 1)—sells a product designed to be
used in tracking individuals for criminal investigation. Securus is a willing participant in the joint
activity of conducting LBS searches. For the same reasons, the Court concludes that Plaintiffs’
allegations, accepted as true, illustrate a close nexus between the Mississippi County Sheriff’s
Department and Securus and between the Sheriff’s Department and the alleged deprivation. See
Meier, 934 F.3d at 829.
b. Constitutional Violation
Securus also argues that Plaintiffs’ allegations do not amount to a constitutional violation
because LBS is not an unreasonable search under the Fourth Amendment. (Doc. 69 at 6.) The
Fourth Amendment prohibits warrantless searches that implicate information in which a person
would have a reasonable expectation of privacy. See, e.g., United States v. Wells, 648 F.3d 671,
678 (8th Cir. 2011).
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Securus argues that Plaintiffs do not have a reasonable expectation of privacy in their
location. (Doc. 69 at 7.) It cites United States v. Knotts, 460 U.S. 276, 282 (1983), for the
proposition that “there is no expectation of privacy in public places.” (Doc. 69 at 6.) The Supreme
Court has long held that physically surveilling and tracking suspects is permissible and that the
use of technology does not necessarily transform a valid search into a Fourth Amendment
violation: “Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory
faculties bestowed upon them at birth with such enhancement as science and technology afforded.”
Knotts, 460 U.S. at 282. To that end, Securus notes that the 6th Circuit has held that the use of
cell site information to track an individual is not significantly different than constitutional visual
surveillance. United States v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012).
Plaintiffs point to Carpenter v. United States, 138 S. Ct. 2206, 2218 (2018), a more recent
case dealing directly with the use of cell phone tower data to track an individual’s location. The
Carpenter Court distinguished “the unique nature of cell phone location records” from other
surveillance and found that “an individual maintains a legitimate expectation of privacy in the
record of his physical movements as captured through [cell-site location information
(‘CSLI’)]”. Id. at 2217.
Securus responds that the tracking in Carpenter implicated a different technology and
“addressed a situation in which law enforcement extensively mapped out a private citizen’s past
movements over a period of more than four months, obtaining over 100 data points every day on
the individual.” (Doc. 71 at 2 (citing Carpenter, 138 S. Ct. at 2217).) It asserts these differences
are too great to make Carpenter a fair benchmark.
The Court concludes that, while there are factual differences between the long-term
continuous monitoring through CSLI used in Carpenter and the use of cell-tower pings present in

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this case, the similarities are sufficient to survive dismissal. Like in Carpenter, Securus’s LBS
technology allows police to locate and track, on demand, any individual carrying a cellphone.
Hutcheson may have used the technology sporadically, but the privacy interest is the same. At
this early stage, the Court concludes that plaintiffs have alleged sufficient facts to allow the Court
to conclude that the use of LBS is a Fourth Amendment search. As such, the warrantless search
of LBS data could amount to a Fourth Amended violation sufficient to support a § 1983 claim.
c. Damages
Securus also argues that Plaintiffs have failed to allege compensable damages stemming
from the purported constitutional violation. (Doc. 69 at 12.) In their complaint, Plaintiffs allege
that Securus’s lack of oversight allowed Hutcheson to violate their “clearly established statutory
and constitutional rights,” and that, “[a]s a direct and proximate result of Securus’s conduct . . .
Plaintiffs have suffered damages, including but not limited [to] emotional distress, anxiety and
humiliation associated with being illegally monitored and being the subject of the investigation
and prosecution of Mr. Hutcheson.” (See Doc. 53 at ¶¶ 56, 57, 75.)
Securus argues as a basic matter that Plaintiffs cannot prove damages because they cannot
prove a constitutional violation. Having found that Plaintiffs alleged sufficient facts to survive
dismissal on that point, the Court rejects Securus’s argument. Moreover, the Court concludes that
Plaintiffs’ alleged emotional injury is enough.

“[C]ompensatory damages [for civil rights

violations] may be awarded for humiliation and emotional distress established by testimony or
inferred from the circumstances.” Mo. Comm’n on Human Rights v. Red Dragon Rest., Inc., 991
S.W.2d 161, 171 (Mo. Ct. App. 1999) (quoting Johnson v. Hale, 940 F.2d 1192, 1193 (9th Cir.
1991) (first alteration added).

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Punitive damages, meanwhile, are available in § 1983 claims “when defendant’s conduct
is shown to be motivated by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983).
Plaintiffs assert that the Fourth Amendment violation was “committed with reckless and/or callous
indifference.” (See Doc. 53 at ¶¶ 57, 76.) The reckless or callous nature of Securus’s actions, if
proven, may be a fact question reserved for the factfinder at a later date.
Accordingly, the Court will deny Securus’s Motion to Dismiss Count II.
Plaintiffs’ Invasion of Privacy Claim
In Count IV, Plaintiffs allege that Securus’s LBS technology was used by Hutcheson to
invade their privacy in violation of Missouri Law. (Doc. 52 at ¶¶ 64-69.) The Missouri Supreme
Court has long recognized a general right of privacy, see Barber v. Time, Inc., 159 S.W.2d 291
(1942), and specifically the unreasonable intrusion upon the seclusion of another, Hester v.
Barnett, 723 S.W.2d 544, 562 (Mo. Ct. App. 1987); see also, (Doc. 52 at ¶ 66). To state a claim
for invasion of privacy for the unreasonable intrusion upon the seclusion of another, the plaintiff
must show “(1) the existence of a secret and private subject matter; (2) a right in the plaintiff to
keep that subject matter private; and (3) the obtaining by the defendant of information about that
subject matter through unreasonable means.” St. Anthony’s Med. Ctr. v. H.S.H., 974 S.W.2d 606,
609-10 (Mo. Ct. App. 1998).
Securus first argues that Plaintiffs “do not enjoy a clear right to privacy in their cell phone
LBS data under Missouri law, which is at best unsettled.” (Doc. 69 at 8.) It asserts that Missouri
courts “frequently consult the Fourth Amendment” to determine when given subject matter interest
could reasonably be considered secret and private, and then references its § 1983 argument that
LBS is not a constitutional violation. (Id. at 8-9.) Having already decided that obtaining LBS data

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could reasonably support a Fourth Amendment violation, the Court finds Securus’s reliance on
that argument unavailing.
Securus also directly argues that an individual’s travel through public space has never been
considered secret or private. It offers cases from District Courts in New Jersey, 1 Florida, 2
Maryland, 3 and New York 4 for the proposition that “no person has a reasonable expectation of
privacy in cell phone location information.” (Id. at 9.) In addition, it argues that “intrusions”
under Missouri law typically relate to physical trespasses into private areas rather than collecting
information. (Id.)
Plaintiffs respond that, in the absence of binding authority, the reasonableness of a given
intrusion is a fact question for the jury. (Doc. 70 at 6-7.) They reiterate that recent Supreme Court
precedent illustrates the continual expansion of privacy rights surrounding cell phone usage—

1

The Court notes that the District Court for the District of New Jersey dismissed the Fourth
Amendment claim without prejudice because the allegations were “vague and conclusory” and not
because it found that there is no reasonable expectation of privacy in cell phone location data.
Braxton v. Lenhardt, No. CIV.A. 12-5155 RBK, 2013 WL 3336685, at *5 (D.N.J. July 2, 2013).
2

In United States v. Madison, No. 11-60285-CR, 2012 WL 3095357, at *9 (S.D. Fla. July 30, 2012),
the District Court for the Southern District of Florida concluded that “society is not prepared to
recognize as legitimate any subjective expectation” that cell-tower location data would be private,
based on the third-party doctrine.
3

In United States v. Graham, 846 F. Supp. 2d 384, 403 (D. Md. 2012), aff’d but criticized in, 796
F.3d 332 (4th Cir. 2015), adhered to in part on reh’g en banc, 824 F.3d 421 (4th Cir. 2016), and
aff’d, 824 F.3d 421 (4th Cir. 2016), the District Court for the District of Maryland concluded that,
despite the significant pace of development of privacy law and cell phones, the third-party doctrine
precluded a finding that cell-tower location data could reasonably be expected to remain private.

4

The District Court for the Southern District of New York held in United States v. Navas, 640 F.
Supp. 2d 256, 264 (S.D.N.Y. 2009), rev’d in part, 597 F.3d 492 (2d Cir. 2010), that the plaintiff
did not have a reasonable expectation of privacy in cell phone location data because the phone was
used only in public, he was not the owner of the phone, and “[if he] intended to keep the cell
phone’s location private, he simply could have turned it off.”
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Carpenter was decided after all four of Securus’s cited cases—and rejects Securus’s suggestion
that Missouri limits invasion of privacy claims to physical trespasses. (Id.)
Neither Plaintiffs nor Securus has provided the Court with binding precedent directly on
point. As Securus notes, when it comes to privacy and LBS, Missouri law “is at best unsettled.”
(Doc. 69 at 8.) Moreover, the state of the law continues to evolve with each new opinion from the
United States Supreme Court even while the technology used to surveil individuals is itself rapidly
changing. Ultimately, this Court concludes that Carpenter is the most recent and most relevant
authority, and it will again apply its reasoning to find that Plaintiffs have alleged sufficient facts
from which the Court could reasonably conclude they had a protected privacy interest in their celltower data. Once again, the Court notes that there are relevant factual differences between the
long-term continuous monitoring through CSLI used in Carpenter and the use of cell-tower pings
present in this case, but concludes that, at this early stage, those differences do not mandate
dismissal. Put simply, the Court cannot say as a matter of law that “no person has a reasonable
expectation of privacy in cell phone location information.” (Doc. 69 at 9.)
Still, Securus argues, Hutcheson’s use of Securus’s LBS platform was not an intrusion that
would be “highly offensive to a reasonable person.” (Id. (quoting Sofka v. Thal, 662 S.W.2d 502,
510 (Mo. 1983)).) On this point, the Court agrees with Plaintiffs that the degree to which a

reasonable person would find the intrusion offensive is a fact question unsuitable for resolution in
a motion to dismiss. The same holds true of whether Securus’s participation in Hutcheson’s
alleged misuse of its platform is itself highly offensive; both issues are properly reserved for the
factfinder at a later stage.
Securus argues that Plaintiffs have not alleged a compensable injury because Hutcheson’s
use of Securus’s platform was not an invasion of privacy. (Doc. 69 at 12.) The Court rejects that

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argument based on its conclusion that Plaintiffs’ allegations are sufficient to support a plausible
invasion-of-privacy claim.
Accordingly, the Court will deny Securus’s Motion to Dismiss Count IV.
Plaintiffs’ Negligence Claim
Lastly, in Count V, Plaintiffs allege that Securus was negligent in allowing Hucheson to
misuse its LBS platform. (Doc. 52 at ¶¶ 70-76.) To state a negligence claim under Missouri law,
plaintiffs must show: “(1) a legal duty of the defendant to protect the plaintiff from injury, (2)
breach of the duty, (3) proximate cause, and (4) injury to the plaintiff.” Nickel v. Stephens Coll.,
480 S.W.3d 390, 400 (Mo. Ct. App. 2015) (citing Thornburg v. Fed. Express Corp., 62 S.W.3d
421, 427 (Mo. Ct. App. 2001)).
Although Plaintiffs plead Count V as a basic negligence claim, their only asserted injury is
emotional distress, making it, in essence, a claim of negligent infliction of emotional distress. (See
Doc. 53 at ¶ 75 (“Plaintiffs have suffered damages, including but not limited [to] emotional
distress, anxiety and humiliation associated with being illegally monitored and being the subject
of the investigation and prosecution of Mr. Hutcheson.”).) The Court therefore construes Count
V as a claim for negligent infliction of emotional distress.
The Eighth Circuit has held that it is a required element of claims alleging negligent
infliction of emotional distress “that the emotional distress or mental injury must be medically
diagnosable and must be of sufficient severity so as to be medically significant.” Couzens v.
Donohue, 854 F.3d 508, 518 (8th Cir. 2017) (quoting Thornburg v. Fed. Express Corp., 62 S.W.3d
421, 427 (Mo. Ct. App. 2001)); see also, Amburgy v. Express Scripts, Inc., 671 F. Supp. 2d 1046,
1055 (E.D. Mo. 2009) (“Nor can plaintiff recover damages for emotional distress inasmuch as he
does not allege that he suffers any medically diagnosed condition that resulted from defendant’s
negligent act.”) (citing State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 568 (Mo. banc 2006)).
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Securus argues that Count V must be dismissed based on Plaintiff’s failure to allege a
“medically diagnosed condition.” (Doc. 69 at 12.) In response, Plaintiffs cite State ex rel. Dean
v. Cunningham, 182 S.W.3d 561, 567-68 (Mo. banc 2006), for the proposition that “evidence of
[a plaintiff’s] medically or psychologically diagnosable mental or physical condition is irrelevant
to the question of whether she suffered ‘garden variety’ emotional distress”—the sort of distress
“that an ordinary person would suffer under the circumstances.” (Doc. 70 at 8 (quoting Dean, 182
S.W.3d at 564).) But Dean and other cases using similar language relate to the discovery or
admissibility of evidence of the plaintiff’s past medical or psychiatric treatment rather than proving
the damages element itself. See, e.g., Molina v. City of St. Louis, No. 4:17-CV-2498-AGF, 2020
WL 3489350, at *2 (E.D. Mo. June 26, 2020) (“[T]he defendant was entitled to obtain any preclaim records regarding the plaintiff’s psychological issues but not regarding her physical health,
as that information had no bearing on her claims.”); State ex rel. BNSF Ry. Co. v. Neill, 356 S.W.3d
169, 173 (Mo. 2011) (when a plaintiff has not alleged psychological injury beyond “garden
variety” emotional distress, psychiatric records are not subject to discovery in connection with the
issue of damages.”); Cunningham, 182 S.W.3d at 568 n.8 (“[A] plaintiff's claim for ‘emotional
distress’ damages constitutes a waiver of the psychotherapist-patient privilege[.]”).
The Court therefore concludes that Missouri law requires evidence of a medically
diagnosable injury in this case. Because Plaintiffs do not allege that any of them suffered such an
injury, the Court concludes that they have failed to state a viable negligent-infliction-of-emotionaldistress claim. Accordingly, the Court will grant Securus’s motion to dismiss Count V.

Conclusion
For the foregoing reasons, the Court concludes that Plaintiffs have alleged sufficient facts
to allow the Court to reasonably infer that Securus’s LBS platform violated the Fourth Amendment

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and Missouri privacy laws. See Iqbal, 556 U.S. at 678. The Court concludes that Plaintiffs have
failed to allege a compensable injury stemming from Securus’s alleged negligence.
Accordingly,
IT IS HEREBY ORDERED that Defendant Securus Technologies, Inc.’s Motion to
Dismiss (Doc. 69), is GRANTED in part.
IT IS FURTHER ORDERED that Count V of Plaintiffs’ Second Amended Complaint is
DISMISSED without prejudice.
Dated this 13th Day of July, 2020.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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