DEMETRO et al v. POLICE DEPARTMENT, CITY OF CHERRY HILL et al
Filing
36
OPINION. Signed by Judge Jose L. Linares on 5/31/12. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CLARK DEMETRO, et al.,
Civil Action No.: 11-4377 (JLL)
Plaintiffs,
OPINION
v.
P. MILTE, et al.,
Defendants.
This matter comes before the Court by way of Defendants City of Linden Police Officers
Nicole Meichionna (“Meichionna”) and Gary Dudash (“Dudash”)’s Motion to Dismiss Counts
I
and V of Plaintiffs’ First Amended Complaint as against them for failure to state a claim upon
which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). [Docket Entry No. 24). On
March 28, 2012, the Parties filed a joint stipulation of dismissal with prejudice as to Defend
ant
Nicola Meichionna, incorrectly identified in Plaintiff’s First Amended Complaint as P. Milie,
Badge No. 268. [Docket Entry No. 30]. The Court so ordered the stipulated dismissal with
prejudice as to Defendant Meichionna, leaving Defendant Dudash (“Dudash”) as the only
moving party in the instant motion. [Docket Entry No. 32). As explained below, since both
Parties submitted material outside the pleadings regarding the police documents detailin
g
Plaintiff Clark Demetro’s arrest, in considering those materials, the Court must treat Defend
ant’s
motion to dismiss as one for summary judgment pursuant to Fed. R. Civ. P. 12(d). The
Court has
considered the submissions of the Parties in support of and in opposition to the instant
motion,
and decides the motion on the papers pursuant to Fed. R. Civ. P. 78. For the reasons stated
herein, Defendant’s motion for summary judgment is granted.
I. BACKGROUND
The First Amended Complaint states a number of facts concerning a series
of
discriminatory acts committed by Defendants named and unnamed individ
ual police officers as
well as the National Association of Bunco Investigators (“NABI”) against Plainti
ffs Frankie
Quick, Eddie Demetro and Josh Demetro. However, the instant Motion seeks
only to dismiss the
claims of Plaintiff Clark Demetro as against the individual named officer
Gary Dudash of the
City of Linden Police Department. The Court accordingly limits its summa
ry of the facts alleged
to those stated in Counts I and V of Plaintiffs’ First Amended Complaint
as they are the only
Counts which state facts pertaining to said Plaintiff and Defendant.
On or about June 2, 2011, Plaintiff Clark Demetro claims he was falsely arreste
d for
placing a false 911 call as well as for assault and harassment by Defendant
Dudash. (Am.
Compl., Count I,
¶J 1-2). On the date of the arrest, Plaintiff Demetro alleges that the 911 call
was placed by a female neighbor who used her cellular phone to report
a disturbance and an
assault against Plaintiff by a third party. (i 5). Plaintiff asserts that Defend
ant Dudash
¶
requested, and the Linden Municipal Court ordered, a high bail in the amoun
t of $2,500.00 cash
for the false 911 call complaint and $1,000.00 for the assault complaint,
without taking into
consideration “the protest of Plaintiff, Clark Demetro that he did not
place the 911 call or that an
assault by Mr. Demetro did not in fact occur.” (Id.
¶ 4). The complaint as against Plaintiff Clark
Demetro for placing a false 911 call was administratively dismissed
by the Office of the
Prosecutor, Union County, on September 19, 2011.
(jçi. ¶ 12). The complaint as against the
same for assault and harassment was dismissed by the Municipal Court,
Union County on
2
November 2, 2011. (kLJ 13).
Plaintiff Clark Demetro also claims that prior to, during, and following his arrest, he was
subjected to ethnic slurs, name calling, and multiple acts of discrimination and prejudice related
to the “defendant’s belief that Plaintiff is a ‘Gypsy.”
(id. ¶ 6). Plaintiff asserts that Defendant
Dudash questioned him “as to his ethnic background, and the names and addresses of other
known Roma identified on the web site and publications of Defendant, NABI.” (Id.
¶ 7).
Finally, the Complaint state that it is believed and averred that, with the cooperation and consent
of Defendant Dudash, Andy Span, an employee of the City of Linden Police Department and a
member of NABI, sent Plaintiffs identifying information and photograph to Defendant NABI for
publication on its website and distribution to other police departments within and without the
State of New Jersey.
( ¶ 11).
Plaintiffs filed their original complaint with this Court on July 28, 2011, alleging that the
discriminatory police conduct as against them violated their constitutional rights, actionable
pursuant to 42 U.S.C.
§ 1981, 1983. 1985, and 1988. [Docket Entry No. 1]. Defendants Linden,
Cherry Hill, and Elizabeth Police Departments filed separate motions to dismiss that complaint
on October ii, 12, and 13, 2011, respectively. [Docket Entry Nos. 6,7 and 9]. On November 22,
2011, this Court granted Defendants’ motions to dismiss with prejudice as against Defendants
Cherry Hill and Elizabeth Police Departments, granted Defendant Linden Police Department’s
motion to dismiss without prejudice, and ordered that the counts brought as against Defendant
Linden Police Department and individual members thereof stayed pending resolution of criminal
proceedings against Plaintiffs Clark Demetro and Frankie Quick. [Docket Entry Nos. 16, 17].
Plaintiffs filed their First Amended Complaint on January 23, 2012. [Docket Entry No.
3
18]. The instant Motion to Dismiss was filed on February 27, 2012. [Docket Entry
No. 24]. In
connection with Defendant’s Motion, Defendant asked the Court to consider: the Linden
Police
Department Incident Report dated June 2, 2011, with photographs referenced therein
of Ruby
Mitchell showing bruising on her right arm and leg; the Domestic Violence Victim’s Statem
ent
by Ruby Mitchell; the Certification of Police Officer Nicole Melchionna; the June 2, 2011
complaints filed against Plaintiff Clark Demetro; Revised Statewide Bail Schedules; Attend
ance
Records of Detective Andrew Spano; a Transcript of state court proceedings dated Decem
ber 8,
2011, in the criminal matter arising from Plaintiff Clerk Demetro ‘s arrest; the New Jersey
Attorney General Guidelines on Police Response Procedures in Domestic Violence
Cases,
and the Linden Police Department Policy & Procedures, Domestic Violence,
§
§ 3.8;
652.2.1. (Def.
Mot., Cert. of Michael D’Anton (“D’Anton Cert.”)). In his Opposition to Defendant’s
Motion,
Plaintiff also submitted: a copy of the June 2, 2011 false 911 call complaint filed
against him; a
notification by the County Prosecutor that false 911 call complaint had been admin
istratively
dismissed on September 19, 2011; a copy of the June 2, 2011 assault and harassm
ent complaint
filed against him; and a copy of the stipulation of dismissal as to defendant Nicole
Meichionna.
(P1. Opp’n Br., Exs. A-D). Rule 12(d) provides that, “[i]f, on a motion under Rule
I 2(b)(6) or
12(c), matters outside the pleadings are presented to and not excluded by the court, the
motion
must be treated as one for summary judgment under Rule 56” and “[a}nd all parties
must be
given a reasonable opportunity to present all the material that is pertinent to the
motion.” Fed. R.
Civ. P. 12(d). By way of Order dated April 23, 2012, the Court provided such
notice to the
parties of its intent to treat Defendant’s motion as a motion for summary judgm
ent. [Docket
Entry No. 34]. The parties were afforded an additional period of time in which
to submit any
4
additional supporting papers for the Court’s consideration. The Court made clear in its April
rd
23
Order that, “{i]f the parties wish for the Court to consider any additional supporting papers
outside the pleadings, such must be submitted (and received by the Court) on or before
May 14,
2012. To be clear, the Court will
accept any further submissions in connection with this
motion after close of business day on May 14, 2012.” (j). As of today’s date, the Parties
have
not submitted any additional supporting papers outside of those submitted with their origina
l
briefing in the instant Motion.
II. LEGAL STANDARD
A court grants summary judgment to a moving party “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgement as a matter of law.” Fed. R. Civ.
P.
56(c). The moving party must first show that no genuine issue of material fact exists.
Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summaryjudgnient is not appropriate where
the
evidence before the court reveals a genuine factual disagreement requiring submission
to a jury.
An issue is “genuine” if the evidence is such that a reasonable jury could find for the non-m
oving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Further, “the issue
of material
fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not require
d to be
resolved conclusively in favor of the party asserting its existence; rather, all that is
required is
that sufficient evidence supporting the claimed factual dispute be shown to require
a jury or
judge to resolve the parties’ differing versions of the truth at trial.”
at 248-49 (citation
omitted). Unless the Court orders otherwise, a party may move for summary
judgment “at any
time until 30 days after the close of all discovery.” Fed. R. Civ. P. 56(c). Howev
er, “where the
5
facts are in possession of the moving party a continuance of a motion for summary judgm
ent for
purposes of discovery should be granted as a matter of course.” Sames v. Gable, 732
F.2d 49, 51
(3d Cir. 1984)(guoting Ward v. United States, 471 F.2c1 667, 670-71 (3d Cir. 1973).
III. DISCUSSION
A. Sections 1981 and 1983 Claims (Count I): Plaintiffls June 2, 2011 Arrest
Plaintiffs’ Amended Complaint does not clearly delineate the legal theories under which
Plaintiff Clark Demetro seeks to vindicate the alleged constitutional violations comm
itted against
him. However, Defendant seeks to dismiss any claim brought pursuant to 42 U.S.C.
§ 1981 on
the basis that Plaintiff has not alleged that he is a member of a racial minority under
that statute
and that he has failed to sufficiently allege any intent to discriminate on the basis of
race since his
arrest, based on a domestic violence incident, was mandatory. (Def. Br., at 9-13).
Defendant
also seeks to dismiss any
§ 1983 claim as against him since: (1) any First Amendment claim fails
to assert that Plaintiff was engaging in any protected activity, or that any activity
was a
substantial or motivating factor in any adverse action; (2) any substantive due proces
s claim must
be dismissed because no facts are alleged that any protected interest was deprived from
Plaintiff
or that any such deprivation was done in an arbitrary or capricious manner; (3) any
procedural
due process claim must be dismissed since Plaintiff was afforded his full constit
utional rights
when his case was heard on December 8, 2011, and his counsel voluntarily stipula
ted as to
probable cause on behalf of his client; and (4) Plaintiff fails to state facts suppor
ting an Equal
Protection violation because he is not a member of a protected class, does
not allege facts that he
was treated differently than similarly situated persons, and that the discriminatory
treatment to
which he was subjected was intentional and without a rational basis.
6
( at 14-20). Finally,
Defendant argues that any
§ 1981 and § 1983 claims as against him must be dismissed on
grounds of qualified immunity, or, in the alternative, specific immunity for officers respon
ding to
domestic violence complaints.
( at 12, 22-26)
Plaintiff’s Opposition attempts to bifurcate the false 911 call complaint filed agains
t him
from the assault and harassment complaint, alleging that his false arrest claim is made
on the
separate and distinct basis of his arrest for a false 911 call. (P1. Opp’n Br., at 9). Furthe
r, he
claims that the discrimination he suffered was on the basis of his membership in the ethnic
minority known as Roma, and that the facts stated in the Complaint regarding the false
arrest and
ethnic slurs are sufficient to rise to the level of a Constitutional violation. (Id. at 7-10).
Plaintiff
asserts that Defendant Dudash is not entitled to qualified immunity “since his arrest of plainti
ff
was not based on domestic violence, was not based upon any reasonable standard
since the 9-1-1[jç] phone call was placed by another person and from another person’s cell phone, and
was
based solely on Officer Dudash’s prejudice against plaintiff because of the belief or knowl
edge
that plaintiff is Roma.”
( at 10). Even if there was probable cause for the arrest for the assault
and harassment, Plaintiff argues, “[tjhe arrest by Officer Dudash was a separate matter
involving
different circumstances. The arrest charging a false 9-1 -1 call was bogus any [j]
made for an
improper purpose without any substantiation of probable cause.”
(iL at 14). Since there was no
probable cause for the false 911 call arrest, Plaintiff claims that Defendant Dudas
h is not entitled
to qualified immunity.
(i4 at 15-16).
Before considering whether Plaintiff has sufficiently alleged claims under
§ 1981 and
1983, the Court will first consider the question of whether Defendant Dudash is
entitled to
qualified or specific immunity since, if he is so entitled as a matter of law, under
no set of facts
7
will Plaintiff be able to allege said claims as against Defendant. See. e.g., Anderson v.
Creighton, 483 U.S. 635, 651 (1987)(affirming Harlow’s implicit assumption “that many
immunity issues could be determined as a matter of law before the parties had exchanged
depositions, answers to interrogatories, and admissions”). A police officer is entitled to the
affirmative defense of qualified or “good faith” immunity if, under an “objective” and
“subjective” analysis, he “knew or reasonably should have known that the action he took within
his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if
he took the action with the malicious intention to cause a deprivation of constitutional rights or
other injury.” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982)(citations omitted). The objective
element of the analysis involves “a presumptive knowledge of and respect for ‘basic,
unquestioned constitutional rights.”
(citing Wood v. Strickland, 420 U.S. 308, 322 (1975)).
The subjective component of the analysis concentrates on “permissible intentions.” iii In
Harlow, the Supreme Court held that “government officials performing discretionary functions,
generally are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Ici at 818. Tn determining whether a government official is qualifiedly immune from
civil damages, a Court asks: (1) whether the facts alleged by the plaintiff show the violation of a
constitutional right, and (2) whether the law was clearly established at the time of the violation.
Saucier v. Katz, 533 U.S. 194, 201 (2001); Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d
Cir. 2010). The dispositive inquiry in determining whether a right is clearly established is
“whether it would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted,” and said inquiry “must be undertaken in light of the specific context of the case.”
8
Saucier, 533 U.S. at 201-2. Thus, a Court must consider “the state of the existin
g law at the time
of the alleged violation and the circumstances confronting the officer to determ
ine whether a
reasonable state actor could have believed his conduct was lawful. Kelly, 622
F.3d at 253 (citing
Anderson, 483 U.S. at 641); see also Berg v. County of Allegheny, 219 F.3d
261, 272 (3d Cir.
2000); Paffv. Kaltenbach, 204 F.3d 425, 431 (3d Cir. 2000).
New Jersey law also provides specific immunity protections for law enforcement officer
s
involved in domestic violence cases under N.J.S.A. 2C:25-22 of the Domestic
Violence Act,
which provides that:
A law enforcement officer or member of a domestic crisis team or any person who,
in
good faith, reports a possible incident of domestic violence to the police shall not
be held
liable in any civil action brought by any party for an arrest based on probable cause,
enforcement in good faith of a court order, or any other act or omission in good faith
under this act.
N.J.S.A. 2C:25-22. This provision of the Domestic Violence Act “sought to cure
the reluctance
on the part of the police to arrest alleged perpetrators of domestic violence that had contrib
uted to
the under enforcement of the domestic violence laws.” Wildoner v. Borough of Ramse
y, 162
N.J. 375, 388 (2000)(citingN.J.S.A. 2C:25-18). To that end, the Act “broadened
the discretion
of a police officer to arrest an alleged perpetrator, even when the victim did not corrob
orate the
incident, provided that the officer has probable cause to believe the incident occurr
ed.”
Rh
(citing N.J.S.A. 2C:25-2 1(b)). Finally, the New Jersey Attorney General and Linden
Police
Department Guidelines make mandatory arrests in domestic violence situations where
there are
“signs of injury” or there is “probable cause to believe a weapon was involved
in the act of
domestic violence.” (Def. Br., D’Anton Cert., Exs. 8 and 9).
The Court finds that Officer Dudash is entitled to specific immunity with respect to
9
Plaintiff Clark Demetro’s
§
1981 and 1983 claims. While Plaintiff claims in his Opposition
brief that the false 911 call complaint and the assault and harassment complaint are
separate
instances with different probable cause determinations involved in an arrest for each,
the
Complaint gives no indication that the complaints did not rest on the same facts and
circumstances surrounding the police summons to Plaintiff’s residence for the alleged
domestic
violence incident which had occurred. Further, the Parties do not dispute any of the materi
al
facts on record regarding Plaintiff’s arrest: that Gary Dudash was the arresting officer on
the
night of June 2, 2011; that the Complaint filed against him for the false 911 calls lists
as its
foundation: “prevent future acts of domestic violence” (P1. Opp’n Br., Ex. A, “Complaint
/
Warrant 2009-W-201 1-000616”); that Officer Dudash’s Incident Report states that, “[Sgt.
Fernandez] advised me that Clark Demetro was involved in a domestic violence inciden
t (see
case #11-20348) and would be placed under arrest. I placed Clark Demetro under arrest
and
handcuffed him” (Def. Reply Br., D’Anton Cert. 2, Ex. 1); that the second June 2, 2011
complaint filed against Plaintiff contains a certification by Nicole Melanchionna that Plainti
ff
committed “assault by purposely, knowingly or recklessly causing bodily injury to Ruby
Mitchell, specifically by kicking and punching her in the arm and leg area in violati
on of 2C:121A(l)” (P1. Opp’n Br., Ex. C, “Complaint Warrant 2009-W-201 1-000618”); that Office
r
Melchionna’s Incident Report indicates that “Clark Demetro was placed under arrest
for DV
assault and creating a false public alarm” (Def. Reply Br., D’Anton Cert. 2, Ex. 1);
and that the
injuries to Ms. Mitchell were supported by: (1) a Linden Police Department Inciden
t Report
#11020348, dated June 2, 2011, with photographs referenced therein of Ms. Mitche
ll showing
bruising on her right arm and leg, (2) a domestic violence victim’s statement by Ms. Mitche
ll
10
dated June 2, 2011, and (3) the certification of Officer Meichionna. (Def. Br., D’Ant Cert.,
on
Exs. 1-3). Given the mandatory arrest requirement placed on Defendant Dudash pursuant to
N.J.S.A. 2C:25-22, the fact that the 911 call is agreed to have been placed in connection
with
reporting an assault resulting from the domestic violence incident, and the clear immun
ity
granted under New Jersey law for law enforcement officers reporting incidents of domes
tic
violence in civil actions brought by any party for an arrest based on probable cause,
the Court
finds that Defendant is entitled to specific immunity as a matter of law.’
(Sç Compi., ¶ 5 (“the
911 call was placed by a female neighbor who used her cellular phone to report an assault
”); Def.
Br., at 10-13, 25-26; P1. Opp’n Br., at 5, 10, 15-16; Def. Reply Br., at 1-2, 6-7). The
Court
accordingly grants Defendant his Motion for Summary Judgment.
Since Plaintiff cannot sustain any
§ 1981 or 1983 claims as against Defendant Dudash
on his arrest claim, he is not entitled to recover under 42 U.S.C.
§ 1988 as to that claim. Section
1988 provides as follows:
In any action or proceeding to enforce a provision of sections 1981
[andj 1983
of
this title,. the court, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the costs.
..
.
42 U.S.C.
.
.
.
.
.
§ 1988. Since Plaintiff cannot be a prevailing party in his suit against Defendant
Dudash, he cannot recover fees under
§ 1988.
B. Sections 1981. 1983 and 1985 Claims (Count 1): Transmission of Defendant’s
‘The Court takes judicial notice of Plaintiffs voluntary stipulation as to probable cause
on both charges filed on June 2, 2011 in the underlying criminal proceedings of State
v. Demetro,
as stated by Defendant’s counsel on the record in the December 8, 2011 hearing
before the
Honorable Cassandra Corbett, U.S.M.J. (See Def. Br., D’Anton Cert., Ex. 7, Tr.
of Dec. 8, 2011
Hr’g, at 4:15-18).
11
Information to NABI
2
Plaintiff’s Amended Complaint alleges that an employee of the Linden City Police
Department, “Andy Span,” is a member of the National Association of Bunco Investigators
(“NABI”), and “[i]t is believed and therefore averred that with the cooperation and consen
t of the
Defendant.
.
.
Police Officer Gary Duchal {jçj,.
.
.
Andy Span.
.
.
sent Plaintiff’s identifying
information and photograph to Defendant NABI for publication on its web site and distrib
ution
to other police departments within and without the State of New Jersey.” (Compl.,
¶J 10-Il).
The Complaint also states that NABI “maintains, publishes and distributes photographs, private
information, public information and police records.
.
.
for purposes motivated by racial and/or
ethnic discrimination, bias and prejudice in violation of the Plaintiff’s civil rights.” (j
¶ 42).
Specifically, the Complaint alleges that NABI’s website singles out “Roma people
as criminals
and makes a pointed effort to identify, apprehend and prosecute ‘Gypsies.” ([j 44).
¶
In Defendant’s Motion to Dismiss, he identifies “Andy Span” as former Linden Detect
ive
Andy Spano, and states that “[p]ersonnel records indicate that Detective Spano was on
terminal
leave when the June 2, 2011 arrest occurred. Moreover, he was on the
[jj leave for most of
2011 until he retired in June of 2011.” (Def. Br., at 6; D’Anton Cert., Ex. 6). Thus, Defend
ant
asserts, “it was impossible for him to have any involvement in Demetro’s June 2, 2011
arrest.”
(j). Regarding the alleged distribution of Plaintiff’s identifying information
and photograph,
Defendant denies any connection between NABI and Officer Dudash, and argues that
the
allegation that Detective Spano belonged to NABI or that Defendant Dudash fed
information
Since
2 the Court does not rely on materials outside the pleadings to assess this claim,
the
Court reviews it pursuant to Fed. R. Civ. P. 12(b)(6) as that motion was filed by Defend
ant.
12
about Plaintiff to NABI through Mr. Spano is unsupported, “the very essence of the phrases,
‘bald face allegations,’ ‘conclusory statements,’ and ‘amorphous.” (Def. Br., at 9). While
Plaintiff argues in his Opposition Brief that Mr. Spano is in fact a member of NABI as evidenced
by a membership list published on its website, Defendant states that “Officer Dudash has no
knowledge of any purported membership by [Mr. Spano] in [NABI],” and that Mr. Spano in any
case is not a party in the case at bar.
($ P1. Opp’n Br., at 9; Def. Reply Br., at 5). Defendant
also denies that Mr. Spano is listed on the NABI website, stating that the website “lists only the
Board of Directors; none of whom are past or present members of the Linden Police
Department.” (Def. Reply Br., at 5; D’Anton Cert. 2, Ex. 3).
Plaintiff does not assert a clear legal theory for liability for his information and
photograph dissemination claim. From what the Court can construe, Plaintiff essentially asserts a
Fourteenth Amendment privacy claim under 42 U.S.C.
§ 1983 for a violation of a constitutional
confidentiality right. The right to privacy “protects two types of interests: ‘One is the individual
interest in avoiding disclosure of personal matters, and another is the interest in independence in
making certain kinds of important decisions.” Hedges v. Musco, 204 F.3d 109, 121 (3d
cir.
2000)(quoting Whalen v. Roe, 429 U.S. 589, 599-600 (1977); see also Sterling v. Borough of
Minersville, 232 F.3d 190, 193-196 (giving an account of the development of Supreme Court and
Third Circuit jurisprudence on the right to privacy). In the instant matter, it appears that the
former interest is the pertinent interest at issue.
The Third Circuit has recognized that some confidential information, such as medical
records, are constitutionally protected under the confidentiality branch of the federal privacy
right. See, e.g., Scheetz v. Morning Call. Inc., 946 F.2d 202, 206 (3d Cir. 1991); United
States v.
13
Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir. 1980). The threshold inquiry is whether the
information is “within an individual’s reasonable expectations of confidentiality.” C.N. v.
Ridgewood Bd. of Educ., 430 F.3d 159,178 (3d Cir. 2005)(quoting Fraternal Order of Police v.
City of Philadelphia, 812 F.2d 105, 112 (3d Cir. 1987)(quotations omitted). Accordingly, the
more intimate and personal the information is, the more justified the expectation that the
information will not be publically disclosed.
The Third Circuit has held that there is no
constitutionally protected privacy interest in information divulged in police reports that are a
matter of public record. $ Scheetz, 946 F.2d at 205-207 (discussing how plaintiff could not
expect information reported to police as part of a potential crime to remain private when police
could bring charges without her concurrence and “at which point all the information would have
would up on the public record, where it would have been non-confidential”)(citing c,
Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95 (l975)(holding that “the interests in privacy
fade when the information involved already appears on the public record”)). Since Plaintiff’s
identifying information and photograph were part of his criminal record obtained on arrest,
Plaintiff cannot state a claim that he had a privacy interest in such information as they were a
matter of public record. Further, Plaintiff’s Complaint states no facts that the distribution
information and photograph were publicly disclosed, particularly since Plaintiff’s Complaint
clearly states that the NABI website had separate sections with one section “limited to actual law
enforcement personnel and government prosecutors.” (Compi., ¶ 45). The Court therefore
dismisses Plaintiff’s privacy claim as asserted in Count I of his Amended Complaint.
3
To
3 the extent that Plaintiff attempts to assert an Equal Protection claim on the basis of
Defendant Dudash’s participation in the distribution of Plaintiff’s identifying information and
photograph, that claim must fail as well since Plaintiff’s Amended Complaint states no facts
14
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment in favor
of
Defendant Dudash is GRANTED as to Counts I and V of Plaintiffs Amended Compl
aint
pertaining to Plaintiff’s June 2, 2011 Arrest. Plaintiff’s claim in Counts I and V pertain
ing to the
alleged distribution of his identifying information and photograph is DISMISSED. An
appropriate Order accompanies this Opinion.
DATED: May
,
2012
/
c
JoseL. Linares
Iifed States District Judge
concerning whether Plaintiff was treated differently than similarly situated person
s or that the
treatment was intentional and had no rational basis.
City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985); Village of Willowbrook v. Olech, 528 U.S. 562
(2000). Further,
Plaintiff’s § 1985 claim fails since Plaintiff fails to state a deprivation of a constit
utional right as
stated infta, and beyond conclusory links between Defendant Dudash and Spano,
states no facts
in support of a conspiracy. Since Plaintiff fails to state a claim under
§ 1981, 1983 and 1985, he
may not assert a § 1988 claim for fees. $ jLa, Section I1I.A; 42 U.S.C. 1988.
§
15
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