Shepherd et al v. Sheldon et al

Filing 50

Memorandum Opinion and Order: The Motion to Dismiss (Doc. 36 ) filed by defendants, Department of Veterans Affairs, Lisa Salser, and Julie Berg is GRANTED. Judge Patricia A. Gaughan on 7/21/11. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Randy Shepherd, et al.,
Plaintiffs,
Vs.
J. Steve Sheldon, et al.,
Defendants.

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CASE NO. 1:11 CV 127
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon the Motion to Dismiss (Doc. 36) filed by defendants,
Department of Veterans Affairs, Lisa Salser, and Julie Berg. This case alleges constitutional
wrongdoing. For the reasons that follow, the motion is GRANTED.
FACTS
Only those facts necessary for a resolution of the pending motion are set forth herein.
Plaintiffs, Randy Shepherd (hereinafter “Shepherd”) and Cynthia Shepherd, bring this
action against defendants, J. Steve Sheldon and Eric Bosco of the Richland County Sheriff’s
Department; the City of Mansfield; Magistrate Judge Gary Dalbey; James Mayer, Jr.,
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Christopher Tunnell, Gary Bishop, Brent Robinson, and Andrew Kvochich of the Richland
County Prosecutor’s Office; Alyce Cline, the Clerk of Court for Shelby Municipal Court; Teena
Barber, the Deputy Clerk of Court for the Shelby Municipal Court; the Department of Veteran’s
Affairs; Julie Berg and Lisa Salzer of the Department of Veteran’s Affairs; the Richland County
Sheriff’s Department; the City of Shelby; and the Richland County Prosecutor’s Office.1
Plaintiffs generally allege that defendants conspired with others to violate their civil
rights, the Racketeer Influenced and Corrupt Organizations Act, and Ohio’s corrupt activity
statute.
In 2004, Shepherd became involved in litigation with the Richland County Child Support
Enforcement Agency concerning various child support and custody matters. Shepherd
represented himself in the litigation, and alleges that “he became involved in various legal battles
with the Courts, the Court Clerks, the Richland County, Ohio CSEA, the Richland County, Ohio
Prosecutor’s Office, and other factions of the Federal, State, County and Municipal
Governments.” (Cmplt. p. 7.) Shepherd became frustrated with his inability to resolve the
various issues in his case, and sought professional psychological assistance from a mental health
professional at the United States Department of Veterans Affairs (VA). Plaintiffs allege that
defendants Berg and Salzer, agents for the VA, “unlawfully, maliciously and in dereliction of
their duties as medical personnel, criminally and/or intentionally disclosed confidential
information relevant to Plaintiff #1, Randy Shepherd, without his consent or agreement.” (Id. at
pp. 8, 39, 40.)

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Plaintiffs also sued the Honorables James DeWeese and James
Henson. The Court previously dismissed these defendants.
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While not perfectly clear, plaintiffs’ complaint appears to allege that defendants Berg
and/or Salzer contacted DeWeese and told DeWeese that while under the care of VA medical
personnel, Shepherd made threats against DeWeese and other Richland County Court of
Common Pleas judges. (Id. at ¶¶ 4-8.) According to plaintiff, the communications were made
during the course of the physician/patient privilege. Plaintiffs allege that these accusations were
false and that DeWeese knew or should have known that the accusations were false, but that
DeWeese “unlawfully caused this information to be disseminated to other Defendants, such as
the Richland County, Ohio Probation Officer, Dan Myers, the Mansfield Police Department and
ultimately to Defendant Eric Bosco of the Richland County, Ohio Sheriff’s Office.” (Id. at ¶ 4.)
Plaintiffs further allege that as a result of the dissemination of this information, defendant
Henson signed “an illegal search warrant . . . for Plaintiffs’ home to search for weapons and
evidence of a plot against Defendant James Henson himself, and other members of the Judiciary.
. . .” (Id. at ¶ 10.) Plaintiffs allege that the search warrant was not supported by probable cause,
and that the felony charge of “weapons under disability” upon which the search warrant was
issued was based upon false information that Shepherd had been involuntarily committed to the
VA facility. (Id. at ¶ 9.) According to Shepherd, he “voluntarily departed, by his own accord,
the VA facility approximately ten (10) hours after the statements made by Randy because
competent medical personnel at the VA deemed any statements made by Randy Shepherd
harmless.” (Id. at ¶ 7.)
After the search warrant was executed on January 20, 2009, “numerous weapons and
other lawful chattels belonging to the Plaintiffs” were seized, and Shepherd was arrested and
charged with possession of marijuana and having a weapon under a disability. (Id at pp. 8-9 and

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¶ 9.) Plaintiffs allege Shepherd was “incarcerated and held without reasonable bond or bail, was
refused a preliminary hearing, and detained without due process of law, until February 18, 2009
when all felony charges against the Plaintiff #1, Randy Shepherd [were dismissed].” (Id. at 9.)
Plaintiffs also allege that, although the felony charges against Shepherd were dismissed on
February 18, 2009, the misdemeanor charges “languished in the Municipal Court of Shelby,
Ohio” for another year until those charges were also dismissed. (Id.)
The complaint contains nine claims for relief. Count one is a RICO claim. Count two is
a conspiracy claim. Count three is a wrongful arrest claim in violation of 42 U.S.C. § 1983.
Count four is a municipal liability claim. Count five is a First Amendment claim. Count six is a
Second Amendment claim. Count seven is a Fourteenth Amendment claim. Count eight is a
Bivens claim. Count nine is a Pottawattamie County v. McGhee claim.
Defendants VA, Berg, and Salzer move to dismiss the complaint and plaintiffs oppose the
motion.
STANDARD OF REVIEW
“Dismissal is appropriate when a plaintiff fails to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6). We assume the factual allegations in the complaint are true
and construe the complaint in the light most favorable to the plaintiff.” Comtide Holdings, LLC
v. Booth Creek Management Corp., 2009 WL 1884445, at *1 (6th Cir. July 2, 2009) (citing
Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008)). In construing the
complaint in the light most favorable to the non-moving party, “the court does not accept the
bare assertion of legal conclusions as enough, nor does it accept as true unwarranted factual
inferences.” Gritton v. Disponett, 2009 WL 1505256, at *3 (6th Cir. May 27, 2009) (citing In re

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Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997)). “To survive a Rule 12(b)(6)
motion, the nonmoving party must provide more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. . . . Factual allegations must be
enough to raise a right to relief above the speculative level.” ABS Industries, Inc. ex rel. ABS
Litigation Trust v. Fifth Third Bank, 2009 WL 1811915, at *3 (6th Cir. June 25, 2009) (citing
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
ANALYSIS
Defendants move to dismiss all counts plaintiffs assert against them. The Court will
address the claims, with the exception of the Bivens claim, in the order the parties address them
in the briefing.
1.

Count seven (due process)

Defendants argue that count seven must be dismissed because there is no constitutional
right to “informational” privacy under the due process clause. Specifically, defendants argue
that the Sixth Circuit has recognized an informational privacy right only in very narrow
circumstances, none of which are present here. According to defendants, any constitutional right
to informational privacy does not extend to the reporting of threats made during a psychotherapy
session. In response, plaintiffs argue that the facts of this case fit squarely within the contours
of the right as defined by the Sixth Circuit. According to plaintiffs, defendants improperly
released mental health information gathered during the course of an evaluation. Plaintiffs claim
that the release of information far exceeded the scope of any possible exception to the physician
patient privilege and some of the information was incorrect. As such, defendants violated

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plaintiffs’ right to informational privacy.
Upon review, the Court finds that plaintiffs fail to state a claim for which relief may be
granted. Plaintiffs make only a general statement that “alleged threats” were “illegally”
disclosed by defendants. (Compl. ¶ 5). According to plaintiffs, no “viable” threats were made.
Plaintiffs further allege that Shepherd was seeking medical help at the time the information was
disclosed. Approximately ten hours after “the statements” were made, Shepherd voluntarily left
the VA and the VA deemed “any statements” harmless. Plaintiffs further allege that defendants
disclosed that Shepherd had used marijuana. (Compl. ¶ 8). According to the complaint, there
was a false and malicious contention that Shepherd was “involuntarily committed. (Compl. ¶ 9).
It is not entirely clear who made this contention. (Id.). These allegations, even accepted as true,
do not rise to the level of a constitutional violation.
The Sixth Circuit has recognized a constitutional right to “informational” privacy arising
under the Due Process Clause only under narrow circumstances.
A plaintiff alleging a violation of her right to informational privacy must therefore
demonstrate that the interest at stake relates to those personal rights that can be deemed
fundamental or implicit in the concept of ordered liberty. Only after a fundamental right
is identified should the court proceed to the next step of the analysis– the balancing of the
government’s interest in disseminating the information against the individual’s interest in
keeping the information private.
Lamert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008). It appears that the Sixth Circuit has
recognized the right to informational privacy in only two cases. See, Id. (holding that only twice
has the Sixth Circuit found the existence of a constitutional right to informational privacy); Lee
v. City of Columbus, 636 F.3d 245 (6th Cir. 2011)(distinguishing only two cases in determining
that no right to informational privacy existed). In Kallstrom v. City of Columbus, 136 F.3d 1055
(6th Cir. 1998), the Court concluded that a constitutional right to informational privacy exists
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with respect to the disclosure of detailed personal information, including names, phone numbers,
addresses, and social security numbers of undercover police officers and their family members,
because there existed a fundamental interest in preserving the lives of the officers and their
family members. The Sixth Circuit concluded that the fundamental right to life and safety
supported the existence of the right to information privacy. In Bloch v. Ribar, 156 F.3d 673 (6th
Cir. 1998), the Sixth Circuit held that a rape victim had an informational privacy right rooted in
the due process clause where the sheriff held a press conference and released highly personal and
extremely humiliating details of the rape, some of which the victim had not even told her
husband. In Bloch, the court concluded that the fundamental right to sexuality and choices about
sex” are “interests of an intimate nature which define significant portions of our personhood.”
The court concluded that these interests have historically been deemed fundamental rights. As
such, they are sufficient to support a claim for deprivation of a constitutional right to
informational privacy.
Here, unlike in Kallstrom and Bloch, plaintiffs fail establish that the interest at stake
relates to a fundamental right. Plaintiffs allege that defendants improperly disseminated
information about threats made by Shepherd, as well as his use of marijuana. According to
plaintiffs, disclosure of this information led to “personal humiliation” as well as bodily harm, in
that Shepherd was arrested as a result of the dissemination. This Court disagrees with plaintiffs
that the disclosure of this type of information impacts a fundamental right. As an initial matter,
even if the information may have proved humiliating, plaintiffs misquote the holding in Bloch.
Plaintiffs erroneously claim that the information need only be of a “sexual, personal, or
humiliating” nature when, in fact, Bloch held a fundamental interest was at stake because the

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information was of a sexual, personal, and humiliating nature. The information at issue in this
case does not meet these criteria. The Court finds that there is no fundamental right at stake
where the disclosure involves personal threats against other individuals and drug use. As noted
in Lambert, plaintiffs face an uphill battle when attempting to create new fundamental interests.
Plaintiffs fail to identify, let alone establish, that any fundamental interest is implicated by the
disclosure of threats against others and drug use.
Plaintiffs also argue that a fundamental interest is at stake because of the manner in
which the disclosure occurred. Specifically, it appears that plaintiffs’ primary argument is that
defendants improperly disclosed the information in violation of the physician-patient privilege.2
Plaintiffs point to no law suggesting that the physician patient-privilege arises from the
Constitution. Further, in the Sixth Circuit the release of medical records does not implicate a
fundamental right. See, e.g., Summe v. Kenton County Clerk’s Office, 604 F.3d 257 (6th Cir.
2010)(assuming arguendo that the information constituted a medical record, its release did not
violate a constitutional right to informational privacy); Jarvis v. Wellman, 52 F.3d 125 (6th Cir.
1995)(“Disclosure of plaintiff’s medical records does not rise to the level of a breach of a right
recognized as ‘fundamental’ under the Constitution.”). Mann v. University of Cincinnati, 114
F.3d 1188 (6th Cir. 1997)(noting that the Sixth Circuit has consistently rejected the argument
that the disclosure of medical records violates a fundamental right). Accordingly, the Court
finds that the Sixth Circuit would not recognize a constitutional right to informational privacy in

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For example, plaintiffs’ argument would clearly fail if the
defendants were not physicians. There would certainly be no
fundamental right at stake if Shepherd disclosed threats and drug
use to another state actor, who later informed the authorities.
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this case because no fundamental right is implicated by the disclosure of threats and drug use,
even if made in the context of the physician-patient relationship.3 As such, plaintiffs fail to state
a claim for violation of due process.4

2.

Count two (conspiracy under 42 U.S.C. § 1985)

The parties agree that in order to state a claim for conspiracy under 42 U.S.C. § 1985,
plaintiffs must prove,
(1) a conspiracy involving two or more persons, (2) for the purpose of depriving, directly
or indirectly, a person or class of persons the equal protection of the laws and (3) an act
in furtherance of that conspiracy (4) that causes injury to person or property, or a
deprivation of a right or privilege of a United States citizen.
Collyer v. Darling, 98 F.3d 211, 233 (6th Cir. 1996).
The plaintiff must also show that the conspiracy was motivated by racial, or other class
based animus. Id. (citing Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)).
Defendants argue that plaintiffs fail to allege any class based animus. Defendants further

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Even if a fundamental right existed, the government’s interest in
protecting the safety of its employees, including threats and
possible drug use of the individual making the threats, weighs
strongly in favor of disclosure of the information.

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Plaintiffs also appear to allege that certain statements made by
defendants were false. The Court finds that plaintiffs’ allegations
do not state a claim for a constitutional violation. Rather, these
claims would at best appear to arise under the law of defamation.
Plaintiffs, however, expressly disavow the existence of any such
claims. For example, plaintiffs move to strike the notice of
substitution filed by the United States with respect to any common
law tort claims on the grounds that no such claims are plead in the
complaint. Although the Court will not strike the substitution, the
Court finds that dismissal of the United States is warranted.
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argue that the complaint, at best, contains only conclusory allegations of a conspiracy. In
response, plaintiffs argue that defendants were motivated by their belief that plaintiffs were
“crazy.” According to plaintiffs, this qualifies as a disability. In the alternative, plaintiffs argue
that they were discriminated against based on their political beliefs and, as such, are members of
a protected class. Plaintiffs also suggests that they were members of the “poor or pro se litigant”
protected class.
Upon review the Court finds that plaintiffs fail to state a claim for conspiracy under 42
U.S.C. § 1985(3) because they do not allege that they are members of a protected class. There
are simply no allegations suggesting that plaintiffs are members of any protected class. Contrary
to alleging that they are disabled, plaintiffs expressly aver that they are not disabled and that
defendants knew that Shepherd was not suffering from any disability. See, e.g., Compl. ¶¶ 10,
16 (noting that certain defendants knew the information about Shepherd was false). Similarly,
plaintiffs do not allege that the conspiracy was motivated by plaintiffs’ political beliefs or
because they were “poor and/or pro se litigants.” Moreover, the Court agrees with defendants
that the complaint does not contain allegations of a conspiracy sufficient to withstand a motion
to dismiss. The complaint alleges only that the moving defendants wrongfully disclosed
information obtained during the physician-patient relationship. Outside of this factual
allegation, there are only legal conclusions regarding the conspiracy claim. (See, Compl. at ¶¶
109, 110). These allegations are insufficient to meet the pleading requirements set forth in Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). As such, the conspiracy claim fails for this
additional reason.
3.

Count five (First Amendment)

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Defendants move to dismiss count five, which alleges that defendants violated plaintiffs’
rights to free speech as guaranteed by the First Amendment. According to defendants, the
complaint does not specifically name them as defendants to this count or specifically identify
what actions defendants took to interfere with plaintiff’s First Amendment rights.
In response, plaintiffs argue that count five is asserted against all “defendants,” which
includes the moving defendants. Plaintiffs further argue that the complaint alleges that Shepherd
expressed a clear dissatisfaction with the local judicial system and this confidential information
was wrongly shared with the local governmental officials. According to plaintiffs, defendants
intentionally sought to deprive plaintiffs of the right to complain about the government.
Upon review, the Court finds that the claim must be dismissed. Although plaintiffs argue
in their brief that the speech disclosed to defendants was “political” in nature, there are no such
allegations in the complaint. In fact, the complaint does not identify the speech at all. Rather,
plaintiffs allege only that,
The alleged threats were said to have originated from a confidential and privileged
communication made by [Shepherd], to a representative of the United States of America
Veteran’s Administration Clinic, and illegally disclosed....” (Compl. ¶ 5).
Plaintiffs further allege that defendants told law enforcement officers that plaintiff Randy
Shepherd had used marijuana. (Compl. ¶ 9).
Throughout the complaint, plaintiffs simply allege that defendants “illegally and/or
criminally disclosed and/or disseminated false and/or confidentially protected information....”
(See, e.g., Compl. ¶¶ 40, 41, 91, 92, 104, and p. 8). Other than vague references to “threats” and
one allegation that defendants unlawfully disclosed plaintiff Randy Shepherd’s marijuana use,
there are no allegations identifying the nature or content of the speech. Thus, although argued in

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their brief, plaintiffs simply do not allege that they engaged in protected political speech.
Plaintiffs make no argument that the alleged threats are protected speech. Nor do plaintiffs argue
that defendants retaliated against them based on the statement regarding marijuana usage.5
Thus, to the extent plaintiffs could be said to have made First Amendment allegations
against the moving defendants,6 the Court finds that plaintiffs fail to state a claim for which relief
may be granted as plaintiffs fail to allege any constitutionally protected speech.
4.

Counts six and three (Second and Fourth Amendment claims)

Defendants argue that these counts must be dismissed because plaintiffs fail to allege that
any of the moving defendants personally participated in the arrest of Shepherd or the seizure of
plaintiffs’ guns. Plaintiffs respond that defendants need not personally participate in the
unconstitutional conduct because plaintiffs allege the existence of a conspiracy.
Upon review, the Court finds that these claims must be dismissed. As defendants
correctly point out, there are no allegations suggesting that the moving defendants participated in
the arrest of Shepherd or the seizure of the guns. Further, this Court concluded that plaintiffs fail
to state a claim for conspiracy. As such, plaintiffs’ argument is rejected and these claims, to the
extent they are asserted against defendants, are dismissed.

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Again, while the statement was made in the context of the
physician-patient relationship, plaintiffs do not make any attempt
to argue that outside of this context such statements are protected
by the First Amendment. Moreover, plaintiffs make no argument
regarding First Amendment rights in the context of the physicianpatient privilege.

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Although the complaint is 59 pages long, the allegations contain
very little factual support for the claims asserted against the
moving defendants. Nor is it entirely clear whether the First
Amendment claim is even asserted against the moving defendants.
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5.

Bivens claim (count 8)

Defendants argue that there can be no implied Bivens claim because the Privacy Act,
HIPPA, Ohio law, and the FTCA are special factors precluding a Bivens damages remedy for
alleged constitutional violations. Plaintiffs appear to argue that HIPPA and the other statutes
relied on by defendants do not have an enforcement mechanism. Therefore, the Court should
recognize a Bivens claim.
Upon review, the Court finds that plaintiffs’ Bivens claim fails for the simple reason that
plaintiffs fail to allege any actionable constitutional violation. This Court dismissed all of
plaintiffs’ constitutional claims and, as such, the Bivens claim fails as well.
5.

28 U.S.C. § 1983 (count 3)

Plaintiffs also allege a claim under 28 U.S.C. § 1983. As defendants correctly note, this
statute does not apply to defendants as they are federal actors and plaintiffs do not allege that
these federal defendants were acting under color of state law. Strickland v. Shalala, 123 F.3d
863, 866 (6th Cir. 1997). Regardless, a claim under 28 U.S.C. 1983 also requires an underlying
constitutional violation. As no such violation is properly alleged, the claim fails for this
additional reason.
6.

RICO (count one)

Defendants argue that plaintiffs fail to state a claim against them under the RICO statute
because neither the federal government nor its agencies may be sued under RICO. Plaintiffs do
not offer any opposition to defendants’ argument or motion in this regard. Having not opposed
defendants’ motion, the Court finds that the RICO claim must be dismissed.
7.

HIPPA and tort claims

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Plaintiffs concede that they have not asserted a claim under HIPPA.7 Plaintiffs further
expressly state that they have not alleged any tort claims. As such, to the extent these claims
could be construed to exist in the complaint, the claims are dismissed.
8.

Counts four and nine (remaining claims)

Count four is a claim for municipal liability and count nine is a claim under McGhee v.
Pottawattamie County, 547 F.3d 922 (8th Cir. 2008). A cursory review of the complaint
demonstrates that these claims are not asserted against the moving defendants.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss (Doc. 36) filed by defendants,
Department of Veterans Affairs, Lisa Salser, and Julie Berg is GRANTED.
IT IS SO ORDERED.

/s/ Patricia A.Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 7/21/11

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Plaintiffs appear to concede that HIPPA does not create a private
cause of action.
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