Berry v. Federal Bureau of Investigation et al

Filing 41

///ORDER granting 35 Motion to Dismiss for Failure to State a Claim. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason Berry
v.

Civil No. 17-cv-143-LM
Opinion No. 2018 DNH 142

Federal Bureau of
Investigation, et al.
O R D E R
Jason T. Berry brings claims for violation of the Privacy
Act, 5 U.S.C. § 552a, against the Federal Bureau of
Investigation (“FBI”) and one of its agents, Mark Hastbacka,
alleging that Hastbacka improperly disclosed information about
him to third parties.

Berry also brings a Bivens claim against

Hastbacka based on the same alleged conduct.

See Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).

Defendants move to dismiss Berry’s second amended

complaint (doc. no. 34), arguing that Berry’s claims fail as a
matter of law.

Berry objects.
STANDARD OF REVIEW

Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff's complaint set forth a
plausible claim upon which relief may be granted.”

Foley v.

Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(internal quotation marks omitted).

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.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).
BACKGROUND
I.

Factual Background1
Berry is a former probation and parole officer for the

state of New Hampshire.

In this role, Berry assisted members of

the FBI’s Safe Streets Task Force in arrests and other tasks.
On February 23, 2017, Berry sent a request under the Freedom of
Information Act (“FOIA”) to the FBI office in Bedford, New
Hampshire, seeking “any information regarding his personal
information and historical documentation of his past involvement
in the activities of the Safe Streets Task Force in New
Hampshire.”

Doc. no. 34 at ¶ 16.

In response to Berry’s FOIA request, Hastbacka called
Berry’s parents and left a voicemail on their home phone.

In

that voicemail, Hastbacka said that he was calling about some
correspondence that Berry had sent.

Hastbacka added that he had

The allegations in this section are taken from Berry’s
second amended complaint, which is the operative complaint in
this action. See doc. no. 34.
1

2

“tried to call [Berry] a couple of times, he’s not picking up,
and there’s no voicemail.”

Doc. no. 34 at ¶ 21.

Hastbacka

requested that he be called back and left a telephone number
where he could be reached.
Berry’s parents were not aware that he had sent a FOIA
request to the FBI.

Upon hearing the voicemail, Berry’s parents

“were confused and concerned about being contacted by the
Federal Bureau of Investigation about their son.”
at ¶ 23.

Doc. no. 34

Berry wrote Hastbacka and informed him that his call

“has resulted in a ‘confusing’ effect on him and his parents.”
Id. at ¶ 26.

In that letter, Berry also requested that

Hastbacka tell him how he knew the identity of his parents and
their contact information.

Hastbacka, however, did not respond

to this letter.
II.

Procedural Background
Berry filed this lawsuit, proceeding pro se, against the

FBI and Hastbacka in April 2017, alleging that Hastbacka and the
FBI violated the Privacy Act by disclosing the existence of his
FOIA request to his parents.

Berry also brought a Bivens claim

against Hastbacka, alleging that Hastbacka violated his privacy
rights by disclosing his FOIA request.
complaint in October 2017.

Berry amended his

That amendment added no new

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substantive allegations but did append a copy of the voicemail
that Hastbacka left Berry’s parents.
Defendants moved to dismiss Berry’s amended complaint,
arguing that each of Berry’s claims failed as a matter of law.
The court granted defendants’ motion to dismiss, holding that
Hastbacka was not a proper defendant under the Privacy Act, the
remedies that Berry sought against the FBI (damages for
emotional distress and injunctive relief) were not available
under the statute, and that no Bivens remedy existed for the
disclosure of a person’s private information.

Doc. no. 31.

The

court, however, observed that Berry’s complaint alluded to
several other theories of liability.

Because Berry is a pro se

litigant, and because Berry had not had the opportunity to amend
the substantive allegations in his complaint, the court granted
defendants’ motion to dismiss without prejudice to Berry filing
another complaint that stated legally sufficient claims against
Hastbacka or the FBI.
On March 5, 2018, Berry filed his second amended complaint,
which defendants now move to dismiss.

See doc. no. 35.

DISCUSSION
In his second amended complaint, Berry alleges two claims
for violation of the Privacy Act, 5 U.S.C. § 552a (Counts I and
II).

Berry brings Count I against the FBI and Count II against

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both Hastbacka and the FBI.

In addition, Berry brings a Bivens

claim against Hastbacka for violation of his Fourth Amendment
rights (Count III).
Defendants move to dismiss Count I, arguing that Berry has
failed to allege any damages that would be available under the
Privacy Act.

Defendants also contend that Count II, which is

brought under the Privacy Act’s criminal penalties provision, 5
U.S.C. § 552a(i), fails because there is no private right of
action under that provision.

Finally, defendants move to

dismiss the Bivens claim against Hastbacka, arguing that Berry
has failed to allege a constitutional violation and that
Hastbacka is entitled to qualified immunity.

In response, Berry

contends that he has sufficiently pled the claims in his second
amended complaint.
I.

Privacy Act Claims (Counts I and II)
In Count I, Berry asserts a claim against the FBI for

violating section (b) of the Privacy Act, which generally
prohibits agencies from disclosing records about a person
without his prior consent.

In Count II, Berry asserts a claim

against the FBI and Hastbacka under section (i) of the Privacy
Act, which makes it a criminal misdemeanor punishable by a fine
of up to $5,000 to disclose records in violation of the Act’s
requirements.

§ 552a(i)(1).

Both claims are based on the

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allegation that Hastbacka violated the Privacy Act by contacting
Berry’s parents and disclosing to them that he had sent the FBI
a FOIA request.
Defendants argue that Berry has failed to state a plausible
Privacy Act claim in Count I because he has not alleged that he
suffered actual damages, which are the only damages available
under the Act.

In addition, defendants argue that Count II

fails because § 552a(i) does not contain a private right of
action that would allow Berry to bring suit.
In response, Berry contends that he has suffered actual
damages and that he should be permitted to proceed to discovery
and trial on the issue of damages.

Berry further contends that

he is at least entitled to the statutory minimum damages of
$1,000.
A. Count I
The Privacy Act contains a civil remedies provision, which
permits an individual harmed by a violation of the Act to bring
a civil lawsuit.

See 5 U.S.C. § 552a(g)(1).

Under § 552a(g),

when an agency commits an “intentional or willful” violation of
the Act, the United States is liable for “actual damages” caused
by that violation.

F.A.A. v. Cooper, 566 U.S. 284, 291 (2012)

(quoting 5 U.S.C. § 552a(g)(4)(A)).

6

In the court’s order on defendants’ first motion to
dismiss, it held that Berry’s Privacy Act claim for damages
failed as a matter of law because the only injury he alleged,
emotional distress, was not recoverable as “actual damages”
under the Act.

See doc. no. 31 at 10-13.

As the court

explained, the Supreme Court in Cooper interpreted the phrase
“actual damages” in § 552a(g) as authorizing only damages for
actual pecuniary harm.
at 298, 302-304).

See id. at 11 (citing Cooper, 566 U.S.

In coming to this conclusion, the Cooper

court reasoned that the term “actual damages” was synonymous
with “special damages,” a category of damages available in
slander and libel per quod cases.

Cooper, 566 U.S. at 295-98.

The court distinguished this type of damages from general
damages, a category of damages not available under the Privacy
Act, which includes damages for “loss of reputation, shame,
mortification, injury to the feelings and the like.”

Id. at

295-96.
Under Federal Rule of Civil Procedure 9(g), “an item of
special damages . . . must be specifically stated.”

This

pleading requirement applies to plaintiffs alleging claims for
damages under the Privacy Act.

Cooper, 566 U.S. at 295 (noting

that “special damages . . . must be specially pleaded and
proved”); Richardson v. Bd. of Governors of Fed. Reserve Sys.,
288 F. Supp. 3d 231, 236 (D.D.C. 2018); Doe v. United States,
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No. 16-CV-00071-FJG, 2017 WL 3996416, at *4 (W.D. Mo. Sept. 11,
2017) (concluding that Privacy Act plaintiffs must “specifically
plead their special damages”).

“An allegation of special

damages is sufficient when it notifies the defendant of the
nature of the claimed damages even though it does not delineate
them with as great precision as might be possible or desirable.”
Sufficiency of Pleading Special Damages, 27 Fed. Proc., Lawyers.
Ed. § 62:157.

Although a plaintiff need not state the precise

dollar amount of damages sought, “the pleadings must demonstrate
an actual pecuniary loss.”

Id.; see also Galarneau v. Merrill

Lynch, Pierce, Fenner & Smith Inc., 504 F.3d 189, 203–04 (1st
Cir. 2007), as amended (Nov. 30, 2007) (observing that plaintiff
alleging special damages must “allege . . . her economic
injuries”).
Accordingly, courts routinely dismiss claims for damages
under the Privacy Act that fail to allege any discernible
pecuniary injury.

Richardson, 288 F. Supp. at 238; Welborn v.

Internal Revenue Serv., 218 F. Supp. 3d 64, 82–83 (D.D.C. 2016)
(dismissing Privacy Act claim because plaintiff failed to allege
“actual pecuniary or material damage”), appeal dismissed, No.
16-5365, 2017 WL 2373044 (D.C. Cir. Apr. 18, 2017); Chichakli,
203 F. Supp. 3d at 57–58; Ramey v. Comm'r Internal Revenue
Serv., No. 1:14-CV-225, 2015 WL 4885234, at *5 (N.D.W. Va. Aug.
14, 2015) (dismissing Privacy Act claim because plaintiff failed
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to “allege any facts to support an adverse effect with actual
damages”), report and recommendation adopted sub nom. Ramey v.
Comm'r of Internal Revenue Serv., No. 1:14CV225, 2015 WL 7313873
(N.D.W. Va. Nov. 20, 2015); Young v. Tryon, 12–CV–6251-CJS-MWP,
2013 WL 2471543, at *6-7 (W.D.N.Y. June 7, 2013); Iqbal v.
F.B.I., No. 3:11-CV-369-J-37JBT, 2012 WL 2366634, at *6 (M.D.
Fla. June 21, 2012) (dismissing Privacy Act claim because
complaint did not allege “some pecuniary harm”).
Here, Berry alleges that he is entitled to actual damages,
but does not specifically state the actual damages he seeks.
Moreover, Berry does not allege that he suffered any pecuniary
loss that could support an award for actual damages under the
Privacy Act.

The only harm that Berry appears to allege in his

second amended complaint is that he and his parents were
confused by Hastbacka’s voicemail.

This allegation, however, is

the type of emotional harm for which damages are not recoverable
under the Privacy Act.

Because Berry has failed to allege any

pecuniary harm that would entitle him to the actual damages he
seeks, he has not alleged a plausible claim for relief under the
Privacy Act.
Therefore, Berry’s claim under the Privacy Act in Count I
must be dismissed.2

Berry contends that he is at the very least entitled to
the $1,000 minimum in damages provided by the Privacy Act
2

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B. Count II
In Count II, Berry brings a Privacy Act claim under
§ 552a(i), the Privacy Act’s criminal penalties provision.
Defendants contend that this claim must be dismissed because
§ 552a(i) contains no private right of action that would enable
Berry to bring a lawsuit to enforce its provisions.

Berry does

not respond to the FBI’s argument that he is not authorized to
bring suit under § 552a(i).
Berry’s claim under § 552a(i) fails for two reasons.
First, although Berry’s claim is brought under § 552a(i), the
criminal penalties provision of the Privacy Act, it does not
request that the court impose any of the remedies provided in
that provision.
552a(g)(4).

Rather, Count II seeks actual damages under §

As discussed above, however, Berry has failed to

allege any pecuniary harm that could serve as a basis for actual
damages.

because there is no dispute that the FBI violated the Act.
Berry is mistaken. In interpreting the civil remedies provision
of the Privacy Act, the Supreme Court has held that the
provision “authorizes plaintiffs to recover a guaranteed minimum
award of $1,000 for violations of the Act, but only if they
prove at least some ‘actual damages.’” Cooper, 566 U.S. at 295
(emphasis added) (citing Doe v. Chao, 540 U.S. 614, 620 (2004)).
Because Berry has failed to allege any actual damages, he is not
entitled to the statutory minimum damages of $1,000.
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Second, to the extent Berry does seek the criminal
penalties set forth in § 552a(i), his claim fails because the
Privacy Act does not contain a private right of action allowing
a private citizen to impose the criminal penalties set forth in
that provision.

Generally, where a criminal prohibition

contains no express private right of action, courts have been
reluctant to infer one.

Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994) (“We
have been quite reluctant to infer a private right of action
from a criminal prohibition alone . . . .”).

Consistent with

this principle, courts have concluded that the Privacy Act does
not contain a private right of action that would allow litigants
to pursue the criminal remedies in § 552a(i).

See Unt v.

Aerospace Corp., 765 F.2d 1440, 1448 (9th Cir. 1985)
(“Appellant's attempt to state a claim . . . under [§
552a(i)(3)] . . . is futile.

This section provides for criminal

penalties only, and generates no civil right of action.”);
Ashbourne v. Hansberry, 302 F. Supp. 3d 338, 346 (D.D.C. 2018);
Hills v. Liberty Mut. Ins., No. 14-CV-0328S, 2015 WL 1243337, at
*2 (W.D.N.Y. Mar. 18, 2015).

For this reason, Berry’s claim

under this provision fails as a matter of law.
Accordingly, the court dismisses Berry’s claim under
§ 552a(i).

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II.

Bivens 4th Amendment Claim (Count III)
Berry alleges that Hastbacka is individually liable under

Bivens, 403 U.S. at 388, which recognizes “an implied private
right of action for damages against federal officers alleged to
have violated a citizen's constitutional rights.”
F.3d at 400.

Casey, 807

Berry’s Bivens claim is premised on the allegation

that Hastbacka’s conduct violated his Fourth Amendment rights.
Specifically, Berry alleges that Hastbacka illegally searched
for and obtained information about him and his family.

Berry

also alleges that Hastbacka conducted an illegal search when he
called his parents and left them a voicemail inquiring about
him.
Defendants move to dismiss Berry’s Bivens claim, arguing
that Berry has failed to allege a constitutional violation that
could support such a claim.3

In addition, defendants assert that

Hastbacka is entitled to qualified immunity.
A. Fourth Amendment Violation
Defendants assert that Berry has failed to allege a
constitutional violation.

In support, they argue that Berry

Defendants first raised the argument that Berry failed to
allege a constitutional violation in their reply. Doc. no. 39
at 2-4. As Berry did not object to defendants raising this
argument in their reply, and Berry addressed this issue in his
objection and his surreply, the court will consider whether his
complaint states a constitutional violation.
3

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does not have standing to bring a claim on behalf of his
parents, leaving a voicemail is not a violation of the Fourth
Amendment, and the complaint’s allegation that Hastbacka
illegally obtained information about Berry and his family is
speculative.

In response, Berry argues that he had an

expectation of privacy in the information that Hastbacka
obtained.
The Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.”

United States v.

Rasberry, 882 F.3d 241, 246 (1st Cir. 2018) (quoting U.S. Const.
amend. IV).

“To prevail on a claim that a search or seizure

violated the Fourth Amendment, a [party] must show as a
threshold matter that he had a legitimate expectation of privacy
in the place or item searched.”

United States v. Aiken, 877

F.3d 451, 453 (1st Cir. 2017) (quoting United States v. Battle,
637 F.3d 44, 48 (1st Cir. 2011)).

To make such a demonstration,

the party must show “both a subjective expectation of privacy
and that society accepts that expectation as objectively
reasonable.” Id. (internal quotation marks omitted).
In addition, “Fourth Amendment rights are personal rights
which may not be vicariously asserted.”

Plumhoff v. Rickard,

134 S. Ct. 2012, 2022 (2014) (internal quotation marks omitted).
Although courts often refer to this issue as one of standing,
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“the Supreme Court has made clear ‘that [this] definition of
Fourth Amendment rights is more properly placed within the
purview of substantive Fourth Amendment law than within that of
standing.’”

United States v. Bain, 874 F.3d 1, 13 (1st Cir.

2017), cert. denied, 138 S. Ct. 1593 (2018) (quoting Rakas v.
Illinois, 439 U.S. 128, 140 (1978)).

The Fourth Amendment’s

standing principle is embodied in the requirement that a party
claiming a Fourth Amendment violation must demonstrate that he,
and not someone else, had a legitimate expectation of privacy in
the area or thing searched.

See Byrd v. United States, 138 S.

Ct. 1518, 1526 (2018).
1.

Information about Berry and his parents

Berry alleges that Hastbacka violated his Fourth Amendment
rights when he searched for and obtained Berry’s parents’
telephone number and Berry’s unlisted telephone number.
Defendants argue that the allegations concerning this search are
too speculative to plead a Fourth Amendment violation.

In

support, they observe that Berry’s parents’ number might have
been published and that Berry does not allege that Hastbacka
ever called him.

In response, Berry argues that he possesses a

legitimate privacy interest in information about himself and his
family.

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Here, Berry’s second amended complaint fails to allege any
details concerning the purported search that Hastbacka undertook
to obtain the relevant information.

The most that Berry alleges

is that Hastbacka “obtained the identity and contact information
of [his] parents through some manner of search.”
¶ 52.

Doc. no. 34 at

This allegation is simply too vague to plead that

Hastbacka violated Berry’s Fourth Amendment rights.

Absent any

allegations concerning how Hastbacka obtained the information at
issue, there is no factual basis in the complaint to infer that
Hastbacka searched an area or item in which Berry maintained an
expectation of privacy.
Nevertheless, Berry appears to argue that he has an
expectation of privacy in the information at issue, regardless
of how it was obtained.

In other words, Berry appears to argue

that any means through which Hastbacka obtained the information
at issue constitutes an illegal search under the Fourth
Amendment.

Berry is mistaken.

Courts have consistently held

that law enforcement may obtain basic information contained in a
person’s telephone records, such as his telephone number, from a
third party.

See Smith v. Maryland, 442 U.S. 735, 748 (1979)

(defendant has no expectation of privacy in telephone company’s
records showing what phone numbers he dialed); United States v.
Bynum, 604 F.3d 161, 164 (4th Cir. 2010) (defendant has no
expectation of privacy in phone subscriber information including
15

his telephone number); United States v. Hudson, 15-CR-3078, 2016
WL 1317090, at *2 (D. Neb. Feb. 19, 2016) (“Under the thirdparty doctrine, courts have consistently held that individuals
lack a reasonable expectation of privacy in basic telephone
records.”); United States v. Sanford, 12-CR-20372, 2013 WL
2300820, at *1 (E.D. Mich. May 24, 2013) (“[A] cell phone number
fits into the category of information that is not considered
private and does not implicate the Fourth Amendment.”).
This principle applies even when law enforcement acquires
information about a person’s unlisted telephone number.

United

States v. Ahumada-Avalos, 875 F.2d 681, 683 (9th Cir. 1989)
(concluding that government did not violate Fourth Amendment by
obtaining defendant’s unlisted telephone number from telephone
company without warrant); In re Cell Tower Records Under 18
U.S.C. 2703(D), 90 F. Supp. 3d 673, 675 (S.D. Tex. 2015); United
States v. Solomon, 02-CR-385, 2007 WL 927960, at *3 (W.D. Pa.
Mar. 26, 2007).

Therefore, Berry’s allegation that Hastbacka

acquired his or his parents’ phone number is not enough,
standing on its own, to plausibly plead a violation of his
Fourth Amendment rights.
Nor does Riley v. California, 134 S. Ct. 2473 (2014), a
case on which Berry relies, alter this conclusion.

In Riley,

the Supreme Court held that an officer could not search the
contents of an arrestee’s cell phone pursuant to the search
16

incident to arrest exception to the Fourth Amendment’s warrant
requirement.

Id. at 2485.

In doing so, the Supreme Court

reasoned that there were elevated privacy interests implicated
when police search the contents of a cell phone, which can
contain vast amounts of personal data.

Id. at 2489-90.

Riley

is inapplicable here because Berry does not allege that
Hastbacka searched the contents of his cell phone—or any other
item or area in which he had an expectation of privacy—to obtain
the information at issue.4
Berry also cites Nat'l Archives & Records Admin. v. Favish,
541 U.S. 157, 158 (2004) to support the proposition that he has
a privacy interest in information about his family.

In Favish,

the Supreme Court concluded that the Freedom of Information Act
“recognizes surviving family members' right to personal privacy
with respect to their close relative's death-scene images.”
Favish, 541 U.S. at 170.

Favish is inapplicable here because it

concerned the privacy interests recognized under the Freedom of
Information Act.

As the Supreme Court noted, the “statutory

privacy right [recognized in FOIA] . . . goes beyond the common

Berry also cites United States v. Jones, 565 U.S. 400, 404
(2012). In Jones, the Supreme Court held that the government
violated the Fourth Amendment when agents, without a warrant,
installed a GPS tracker on a defendant’s automobile to monitor
his movements. Id. Jones is not applicable here because Berry
does not allege that Hastbacka used GPS technology or tracked
his movements.
4

17

law and the Constitution.”

Id. at 170.

For this reason,

Favish does not support Berry’s Fourth Amendment claim.
Finally, Berry cites several cases that discuss the
sanctity of familial relationships in other legal contexts.
Doc. no. 40 at 3.

Those cases, however, do not hold that a

person has a reasonable expectation of privacy under the Fourth
Amendment in information about his family.

Therefore, those

cases are inapplicable here.
Accordingly, Berry has failed to plausibly allege that
Hastbacka violated his Fourth Amendment rights by acquiring
information about him or his parents.
2.

Call to Berry’s Parents

Berry also argues that Hastbacka conducted an illegal
search under the Fourth Amendment when he called Berry’s parents
and inquired about him.

Berry contends that Hastbacka’s conduct

constituted a search in violation of the Fourth Amendment
because it “was an intrusion upon ‘a constitutionally protected
area in order to obtain information.’”

Doc. no. 34 at ¶ 57.

Defendants argue that Berry has failed to allege a
violation of the Fourth Amendment arising out of Hastbacka’s
voicemail for two reasons.

First, the conduct alleged falls

short of an encounter that would trigger the protections of the
Fourth Amendment.

Second, Hastbacka has failed to allege that

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he has any expectation of privacy in his parents’ telephone
account and therefore does not have standing to raise a Fourth
Amendment claim based on Hastbacka’s call to that line.

In

response, Berry contends that he has alleged a violation of the
Fourth Amendment based on Hastbacka leaving the voicemail at
issue.
Not all encounters between law enforcement officers and
private citizens invoke the protections of the Fourth Amendment.
See United States v. Smith, 423 F.3d 25, 28 (1st Cir. 2005).
For example, “[p]olice may approach citizens in public spaces
and ask them questions without triggering the protections of the
Fourth Amendment.”
Cir. 1997).

United States v. Young, 105 F.3d 1, 6 (1st

Such conduct “falls short of triggering Fourth

Amendment protections when, from the totality of the
circumstances, [the court] determine[s] that the subject of any
police interaction would have felt free to terminate the
conversation and proceed along his way.”

Id.

In other words,

an “encounter will not trigger Fourth Amendment scrutiny unless
it loses its consensual nature.”

Florida v. Bostick, 501 U.S.

429, 434 (1991).
Similarly, “[a] policeman may lawfully go to a person's
home to interview him,” United States v. Daoust, 916 F.2d 757,
758 (1st Cir. 1990), “because ‘[i]t is not improper for a police
officer to call at a particular house and seek admission for the
19

purpose of investigating a complaint or conducting other
official business,’” United States v. McKenzie, No. CR 08-1669
JB, (D.N.M. Apr. 13, 2010), aff'd, 532 F. App'x 793 (10th Cir.
2013), and aff'd, 532 F. App'x 793 (10th Cir. 2013) (quoting 1
W. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 2.3(b), at 475 (3d ed. 1996)).

Such an encounter at

a person’s residence “is no longer consensual if the officer
persists in the encounter after the homeowner directs him or her
to leave, or otherwise indicates that the officer is not
permitted on the homeowner’s property.”

McKenzie, 2010 WL

1795173, at *12 (citing Rogers v. Pendleton, 249 F.3d 279, 28890 (4th Cir. 2001)).
Here, the conduct Berry alleges does not rise to the level
of a Fourth Amendment violation.

Hastbacka’s unsuccessful

effort to contact Berry’s parents is far less intrusive than the
types of consensual encounters discussed above that do not
trigger the protections of the Fourth Amendment.

Hastbacka was

not physically present at Berry’s parents’ home.

Further, the

complaint alleges no facts from which the court could infer that
Berry’s parents were not free to ignore Hastbacka’s voicemail.
Therefore, Berry has failed to allege that Hastbacka violated
the Fourth Amendment by leaving the voicemail on his parents’
telephone line.

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In any case, even if Hastbacka’s voicemail could be
construed as a search that violates the Fourth Amendment, the
second amended complaint does not allege facts demonstrating
that such a “search” violated Berry’s constitutional rights.

In

other words, there are no allegations in the second amended
complaint from which this court could infer that Berry had a
legitimate expectation of privacy in his parents’ telephone line
or residence.

Indeed, Berry appears to allege facts

contradicting the presence of any such interest.

In his second

amended complaint, Berry alleges that he has not lived with his
parents since 1998, that since then he has maintained a separate
primary home address, and that he and his parents “live nowhere
near” each other.

Doc. no. 34 at ¶ 20.

Accordingly, Hastbacka

has not alleged that he has standing to challenge the purported
violation of his parents’ Fourth Amendment rights.
For these reasons, Berry’s Fourth Amendment claims must be
dismissed.
B. Qualified Immunity
Because the court has concluded that Berry failed to plead
a constitutional violation, it need not consider whether
qualified immunity applies here.

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CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 35) is granted.

The clerk of court shall enter

judgment accordingly and close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
July 17, 2018
cc:

Counsel and Pro Se Party of Record

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