McKee v. Schemmel et al
Filing
27
Memorandum Opinion and Order: The court GRANTS the defendants' motion for summary judgment and DENIES Plaintiff's motion for summary judgment. IT IS SO ORDERED. (Related Documents # 15 , 26 ). Magistrate Judge Thomas M. Parker on 12/19/2018.(D,JJ)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
EDWARD MCKEE,
Plaintiff,
v.
DANIEL SCHEMMEL, et al.,
Defendants.
I.
)
)
)
)
)
)
)
)
)
)
Case No. 1:17-cv-02104
MAGISTRATE JUDGE
THOMAS M. PARKER
MEMORANDUM OPINION
AND ORDER
Introduction and Procedural Background
Plaintiff, Edward McKee, pro se, sued Case Western Reserve University (“CWRU”) and
CWRU police officers Daniel Schemmel and Arthur Hardee, alleging that Schemmel and
Hardee, in their individual and official capacities, knowingly obtained his personal information
from a motor vehicle record and used it for an unpermitted purpose, in violation of the Driver’s
Privacy Protection Act (“DPPA”), 18 U.S.C. § 2724.1 ECF Doc. 1, Page ID# 4–6. The parties
have now filed cross-motions for summary judgment. ECF Docs. 15 and 26.2 Because McKee
1
McKee’s complaint also states that the defendants violated Ohio Admin Code 4501:2-10-06(C) (restricting the use
of the Ohio Law Enforcement Automated Data System (“LEADS”)) and Ohio Rev. Code 2913.04(C) (establishing
that the unauthorized access, use, or dissemination of information gained from LEADS is a fifth degree felony).
ECF Doc. 1, Page ID# 5–6. However, in his response to the defendants’ motion for summary judgment, McKee
disavows any claim that the defendants violated Ohio Admin. Code 4501:2-10-06(C) and Ohio Rev. Code
2913.04(C), and states that “the sole causes of action in the present case are two violations of the DPPA, not state
law.” ECF Doc. 20, Page ID# 195.
2
The defendants originally filed their motion on June 20, 2018. ECF Doc. 14 (sealed). On October 12, 2018, the
court struck the defendants’ motion, because the defendants failed to comply with the Local Rules requiring
supporting documents to be filed as separate components of a filing and gave the defendants seven days to re-file
their summary judgment motion and exhibits. ECF Doc. 25. On October 17, 2018, the defendants re-filed their
summary judgment motion and exhibits in compliance with court’s order directing them to comply with the Local
Rules. ECF Doc. 26. In the October 17 filing, the defendants redacted McKee’s address from Exhibit A and his
has failed to adduce any evidence sufficient to show that Hardee and Schemmel used his
personal information for a purpose not permitted under the DPPA, and because the defendants
are entitled to judgment as a matter of law, the court will GRANT the defendants’ motion for
summary judgment and DENY McKee’s motion for summary judgment.
McKee’s complaint alleged that: (1) Schemmel sent an email impermissibly disclosing
his “photograph, social security number, name, address, date of birth, height, and weight, along
with the [statement that McKee] ‘is extremely combative c/w constitutional right issues and has
serious mental issues,” to numerous CWRU employees in order “to damage [McKee’s]
credibility and boost morale of CWRU employees”; and (2) Hardee sent a letter impermissibly
disclosing McKee’s “address and full name including middle initial and suffix” in order “to
intimidate [McKee], by falsely implying that [McKee’s] criticism of CWRU police was
somehow illegal or that [McKee] was in some sort of trouble with the police, and to prevent
CWRU employees from hearing criticism of abuses committed by their employer.” Id. at 2, 5–6.
The defendants’ summary judgment motion contends that McKee has failed to adduce
sufficient evidence to support his claims that Schemmel and Hardee used for improper purposes
his personal information obtained through the Ohio Law Enforcement Automated Data System
(“LEADS”). ECF Doc. 26, Page ID# 227–29. Specifically, they assert that the undisputed
record evidence shows that: (1) Schemmel did not obtain McKee’s information through LEADS;
and (2) Schemmel and Hardee properly used McKee’s personal information in conjunction with
their duties as CWRU police officers. Id. McKee’s motion argues that he is entitled to judgment
as a matter of law because the undisputed record evidence shows that: (1) Hardee’s decision to
include his full name and address in a letter that was emailed to him did not facilitate the letter’s
birthdate and social security number from Exhibit B. Compare ECF Doc. 14, Page ID# 76–77 (stricken), with ECF
Doc. 26, Page ID# 233–34.
2
purpose, i.e. prohibiting him from emailing CWRU employees; and (2) the information included
in Schemmel’s email did not “facilitate the email’s purpose of informing CWRU employees that
[McKee] had been ordered not to email CWRU employees.” ECF Doc. 15, Page ID# 89–90.
II.
Undisputed Facts and Rule 56 Evidence
The following facts are undisputed or established by the Rule 56 evidence. McKee is a
2010 CWRU graduate, who continues to live in an apartment near CWRU’s campus. ECF Doc.
15, Page ID# 86. In 2012, McKee was involved in an incident involving the University Circle
Police Department (“UCPD”), and in 2014 he sued University Circle, Inc., several of its
employees, and a local business owner. ECF Docs. 15 and 26, Page ID# 86, 226; Edward
McKee v. University Circle, Inc., et al., Case No. CV-14-827925. McKee “sent emails to certain
CWRU employees,” including the President of CWRU and Hardee, “in an attempt to convince
them to influence UCPD’s management to respond to his concerns” regarding the incident. ECF
Docs. 15 and 26, Page ID# 86, 226. At the same time, McKee “began to engage in criticism of
CWRU’s police department via email to CWRU employees and others, including local
government.” ECF Doc. 15, Page ID# 86.
On November 4, 2013, Hardee emailed McKee a November 1, 2013, cease and desist
letter stating:
It has come to my attention you are sending emails to [CWRU] employees that
are harassing in nature and are interfering with their university activities and
duties. I urge you to cease and desist from sending any further emails to any
CWRU employees. If you do not stop, my next course of action will be to make
you persona non grata, which will prohibit you from entering onto the CWRU
campus.
ECF Doc. 26-1, Page ID# 233; see also ECF Docs. 15 and 26, Page ID# 86, 226. Hardee’s letter
was addressed to “Edward F. McKee, III” and included McKee’s full mailing address. ECR
Docs. 15 and 26-1, Page ID# 87, 233; see also ECF Doc. 14, Page ID# 76 (stricken). The name
3
and address in Hardee’s email matched the name and address on McKee’s Ohio state ID. ECF
Doc. 15-1, Page ID# 92. Hardee received McKee’s name and address from Schemmel. ECF
Doc. 15-2, Page ID# 95. He included McKee’s full name and address on the letter because it
was “standard practice” to do so. Id. Hardee prepared the November 1, 2013, letter to “advise
[McKee] to cease sending harassing emails to CWRU employees and interfering with their
university activities and duties.” ECF Doc. 15-2, Page ID# 95; see also ECF Doc. 26-4, Page
ID# 240. In an affidavit, Hardee testified that “[a]ll searches regarding Mr. McKee were
conducted for legitimate law enforcement purposes including but not limited to campus safety,”
and that “[a]ny use of Mr. McKee’s personal information was in conjunction with [his] duties as
a law enforcement officer of the CWRU Police Department.” ECF Doc. 26-4, Page ID# 240.
On November 5, 2013, Schemmel emailed “23 private police officers, 19 security guards,
the Director of Parking and Building Security, the Vice President for Campus Services, and one
IT employee,” stating:
Former CWRU Student was sent (11-4-13) notice to cease/desist contact with
CWRU. No PNG at this time. If seen on campus or in the area, please use
caution/discretion. He is extremely combative c/w constitutional right issues and
has serious mental issues. Ed McKee . . . 6ft 185lbs.
ECF Doc. 26-2, Page ID# 234; see also ECF Doc. 15, Page ID# 87. The email also included
McKee’s street address with unit number, full date of birth, full social security number. ECF
Docs. 15 and 26-2, Page ID# 87, 234; see also ECF Doc. 14, Page ID# 77 (stricken). Schemmel
attached two of McKee’s pictures to the email. ECF Docs. 15 and 26-2, Page ID# 87, 235. One
photo matched the photo on McKee’s Ohio state ID, and the other personal information in
Schemmel’s email matched the information that McKee submitted to the Ohio Bureau of Motor
Vehicles when he got his Ohio state ID. ECF Docs. 15 and 15-1, Page ID# 87, 92. The
employees who received the email fell under the Police and Security umbrella of the CWRU
4
Police Department. ECF Doc. 26-3 and 26-4, Page ID# 237, 240. Schemmel found: (1) one
photo in CWRU’s student ID records; (2) McKee’s address, date of birth, and social security
number through the TLOxp3 service; and (3) McKee’s driver’s license through the Ohio Law
Enforcement Gateway.4 ECF Docs. 15-3 and 26-3, Page ID# 102, 237.
In his responses to McKee’s interrogatories, Schemmel stated that the purpose of his
email was to “advise the recipients that a former CWRU student was sent a notice to cease and
desist contact with the University . . . [and] to use caution/discretion with [McKee] if
encountered on campus.” ECF Doc. 15-3, Page ID# 104. He stated that he included McKee’s
photo, address, date of birth, social security number, height, and weight in the email because it
was “standard practice” to do so. Id. at 102. In an affidavit, Schemmel testified that his work
“as a detective sergeant for the CWRU Police Department include[d] investigating crimes and
internal issues relative to the safety and security of campus and the surrounding community.”
ECF Doc. 26-3, Page ID# 236. He stated that he searched for McKee’s information “for
legitimate law enforcement purposes including campus safety,” and that he transmitted the
November 5, 2013, email to (1) advise CWRU employees that McKee was sent a cease and
desist letter, and (2) warn CWRU employees under the Police and Security umbrella “to use
caution and discretion with Mr. McKee.” Id. at 237.
3
TLOxp is a data aggregation service that allows subscribers to access information reports containing names,
addresses, aliases, emails, phone numbers, places of employment, and other information. About TLOxp,
TRANSUNION TLOXP, https://www.tlo.com/about-tloxp (last visited Dec. 6, 2018).
4
The Ohio Law Enforcement Gateway is a web-based database that allows Ohio law enforcement agencies to share
criminal justice data. Ohio Law Enforcement Gateway, OHIOATTORNEYGENERAL.GOV,
https://www.ohioattorneygeneral.gov/Law-Enforcement/Ohio-Law-Enforcement-Gateway (last visited Dec. 6,
2018).
5
III.
Law & Analysis
A.
Summary Judgment Standard
Summary judgment is proper when “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Maben v. Thelen, 887 F.3d 252, 258 (6th Cir. 2018). The moving party must
demonstrate the “basis for its motion, and identify[] those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986) (quotation omitted). The nonmoving party may not simply rely on his
pleadings, but “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotation omitted). A reviewing
court must determine whether the evidence that the nonmoving party relies upon “presents
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at 251–52. In evaluating the evidence presented on a
summary judgment motion, courts must draw all reasonable inferences in favor of the
nonmoving party. Id. at 255. Nonetheless, a court need not accept unsupported or conclusory
statements as true. See Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009)
(“Conclusory statements unadorned with supporting facts are insufficient to establish a factual
dispute that will defeat summary judgment.”).
B.
The DPPA & Police Functions
Under the DPPA, an individual may bring a civil action for actual and punitive damages,
as well as preliminary and equitable relief, against “[a] person who knowingly obtains, discloses,
or uses [his] personal information, from a motor vehicle record, for a purpose not permitted
6
under [the DPPA].” 18 U.S.C. § 2724(a). Obtaining, disclosing and using personal information
from a motor vehicle record is permitted “[f]or use by any government agency, including any
court or law enforcement agency, in carrying out its functions, or any private person or entity
acting on behalf of a Federal, State, or local agency in carrying out its functions.” 18 U.S.C.
§ 2721(b)(1). “Motor vehicle record” includes identification cards issued by state departments of
motor vehicles. 18 U.S.C. § 2725(1). The DPPA was intended to prevent stalkers, harassers,
would-be criminals, and other people with nefarious purposes from obtaining and using personal
information from motor vehicle records. See Margan v. Niles, 250 F. Supp. 2d 63, 68 (N.D.N.Y.
2003) (citing 140 Cong. Rec. H2527 (Apr. 20, 1994) (statement of Rep. Goss) (“The intent of
this bill is simple and straightforward: We want to stop stalkers from obtaining the name and
address of their prey before another tragedy occurs. . . . The Driver’s Privacy Protection Act . . .
is a reasonable and practical crime fighting measure.”).
Private university police departments and their employees are vested with the same
powers and authorities vested in municipal police departments, county sheriffs, and their
employees. Ohio Rev. Code § 1713.50(C). Ohio police duties generally include preserving the
peace; protecting persons and property; enforcing all ordinances, state laws, and court orders.
Ohio Rev. Code §§ 311.07(A), 737.11. In executing their duties, police may communicate with
other members of the same department, other law enforcement departments, and other
government entities. Cf. Ohio Rev. Code §§ 311.07(A) and 737.04 (discussing such
cooperation); see also Parus v. Kroeplin, 402 F. Supp. 2d 999, 1006 (W.D. Wis. 2005) (finding
no violation of the DPPA as a matter of law when a police dispatcher gave motor vehicle
information to another law enforcement agent who had requested it). Further, police may
communicate identifying information to the public at large if necessary in the execution of their
7
duties to preserve the peace, protect persons and property, and enforce the law. Cf. McQuirter v.
City of Motgomery, No. 2:07-CV-234-MEF, 2008 U.S. Dist. LEXIS 10319 (M.D. Ala. Feb. 12,
2008) (finding that police officers who shared a photograph from a plaintiff’s driver’s license
with the media and other law enforcement officers were engaged in carrying out a law
enforcement function).
C.
McKee’s DPPA Claim
The court concludes that even construing the record evidence in the light most favorable
to McKee, McKee has failed to adduce evidence sufficient to establish a genuine issue of
material fact that the defendants violated the DPPA. Fed. R. Civ. P. 56(a); Maben, 887 F.3d at
258; Anderson, 477 U.S. at 255. Even assuming that Hardee and Schemmel derived McKee’s
personal information, including his photo, from motor vehicle records, the undisputed record
evidence establishes that they accessed, used, and disseminated that information in the execution
of their duties as CWRU Police Officers. 18 U.S.C. §§ 2721(b)(1), 2724(a). Here, Hardee
executed his duties in preserving the peace and protecting persons and property when he sent
McKee a letter demanding that he cease and desist from harassing CWRU employees. Ohio
Rev. Code §§ 311.07(A), 737.11, 1713.50(C). Although the inclusion of McKee’s full name and
address might not have been necessary to effect delivery of Hardee’s cease and desist letter,
McKee has adduced no evidence to dispute that the inclusion of a recipient’s name and address
on a letter is not a standard practice to ensure the recipient’s identity. Furthermore, the
undisputed record evidence establishes that Schemmel executed his duties in preserving the
peace and protecting persons and property, in cooperation with other law enforcement members
and safety personnel, when he shared with other personnel of the CWRU Police Department and
CWRU Public identifying information regarding McKee and warning the other law enforcement
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?