Burke v. Ohio Department of Rehabilitation and Correction et al

Filing 31

OPINION AND ORDER granting in part and denying in part 18 Motion to Dismiss for Lack of Jurisdiction. The Motion is DENIED with respect to Plaintiffs claim brought pursuant to 42 U.S.C. § 1983 against GTL (Count VI). The Motion is GRANTED as it relates to any claim brought pursuant to 42 U.S.C. § 1985 against GTL. Signed by Magistrate Judge Elizabeth Preston Deavers on January 10, 2022. (jlk)

Case: 2:21-cv-00048-EPD Doc #: 31 Filed: 01/10/22 Page: 1 of 8 PAGEID #: 195

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEVIN P. BURKE,
Plaintiff,

Civil Action 2:21-cv-48

v.

Magistrate Judge Elizabeth P. Deavers

OHIO DEPARTMENT OF
REHABILITATION AND
CORRECTION, et al.,
Defendants.
OPINION AND ORDER
Plaintiff Kevin Burke filed this civil rights action pursuant to 42 U.S.C. § 1983 on
January 7, 2021, naming as Defendants the Ohio Department of Rehabilitation and Correction
(“ODRC”), Warden Emma Collins, and Director Annette Chambers-Smith. (ECF No. 1.) On
July 2, 2021, Plaintiff filed an Amended Complaint (ECF No. 13) setting forth additional claims
pursuant to § 1983 as well as a claim under 42 U.S.C.§ 1985 and naming as additional
Defendants Christopher Lambert (“Lambert”), Roger Wilson (Wilson”), Global Tel*Link
Corporation (“GTL”), and John Doe Employees of GTL. With the consent of all parties to the
jurisdiction of the United States Magistrate Judge (ECF No. 28), 28 U.S.C. § 636(c), this matter
is before the Court for consideration of Defendant GTL’s Motion to Dismiss (ECF No. 18),
Plaintiff’s Memorandum in Opposition (ECF No. 22), and GTL’s Reply (ECF No. 23.) For the
following reasons, GTL’s Motion (ECF No. 18) is GRANTED, in part, and DENIED, in part.

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I.

BACKGROUND

Plaintiff was employed by ODRC as a Corrections Officer at the Pickaway County
Correctional Institution located in Orient, Ohio. (ECF No. 13 at ⁋ 5.) Defendant Lambert is the
Chief Inspector for ODRC. (Id. at ⁋ 7.) Defendant Wilson is a Deputy Chief Inspector for
ODRC. (Id. at ⁋ 8.) GTL, a Virginia corporation, provides communications and data services,
including the accessing of social media sites for intelligence gathering purposes for ODRC. (Id.
at ⁋⁋ 9, 10.)
ODRC has a specific written policy regarding its employees use of social media. (Id. at ⁋
22.) Defendant Lambert, prompted by his receipt of an anonymous email, requested that GTL
gather “intelligence” regarding “ODRC employees publicly posting racially or politically
charged materials on social media.” (Id. at ⁋⁋ 40, 41.) On June 19, 2020, ODRC accessed
information about Plaintiff and other individuals utilizing GTL as an agent for its access. (Id. at
⁋ 38.) Specifically, GTL, acting as an agent for, and with ODRC, conducted a warrantless search
of the ODRC employees’ social media, including Plaintiff’s Facebook® Accounts. (Id. at ⁋ 46.)
Both Defendants Lambert and Miller, acting under color of state law, directed GTL to access and
seize Plaintiff’s private property, specifically information from Plaintiff’s Facebook account.
(Id. at ⁋⁋ 7, 8.)
ODRC and GTL did not provide Plaintiff notice of this search as required under ODRC’s
surveillance or subpoena policies. (Id. at ⁋⁋ 47, 49.) Ultimately, Plaintiff was terminated on
October 15, 2020, for alleged violations of employee conduct standards (Id. at ⁋⁋ 19-21.)
Plaintiff brings his claims under 42 U.S.C. § 1983 alleging various Constitutional
violations. First, Plaintiff asserts that ODRC’s social media policy violates his First Amendment
rights and his Due Process rights under the Fourteenth Amendment. (Counts I through III.)

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Additionally, Plaintiff contends that ODRC violated his Fourth Amendment rights by the
unlawful search and seizure of his private property without probable cause. (Count IV.)
Similarly, Plaintiff claims that Defendants Lambert, Wilson and GTL violated both his First
Amendment and Fourth Amendment rights by the unlawful search and seizure of his private
property without probable cause. (Counts V and VI). Finally, Plaintiff claims that Defendants
Lambert, Wilson, and John Doe GTL employees conspired to violate his civil rights in violation
of 42 U.S.C. § 1985. (Count VII.)
II. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands on the authors of
complaints.” 16630 Southfield Ltd., P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir.
2013) (emphasis in original).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).
In considering whether a complaint fails to state a claim upon which relief can be
granted, the Court must “construe the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio
Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir.
2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet
that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of
a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.
Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts
sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts
intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz–Craft
Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.
III.

ANALYSIS

Section 1983 provides a remedy for deprivations of rights secured by the Constitution
when that deprivation takes place “under color of state law” or by a “state actor.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). GTL argues
that Plaintiff’s § 1983 claim for violation of his First and Fourth Amendment rights fails to state
a claim for relief against GTL because it is not a state actor and did not act under color of state
law. (ECF No. 18 at 3-7.) Plaintiff disagrees and contends that he has alleged, in a manner
sufficient to survive GTL’s Motion to Dismiss, that GTL’s actions in accessing his private social
media files were taken under color of law.
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As GTL acknowledges, “a private actor acts under color of law when its conduct is fairly
attributable to the state.” Romanski v. Detroit Ent., L.L.C., 428 F.3d 629, 636 (6th Cir. 2005);
Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000) (ECF No. 18 at 3.) “The
Supreme Court has set forth three tests to determine whether private conduct may be fairly
attributable to the state: (1) the public function test; (2) the state compulsion test; and (3) the
symbiotic relationship test.” Nag v. Ohio State University, No. 2:20-CV-3471, 2021 WL
4306095, at *7 (S.D. Ohio Sept. 22, 2021) (citing Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th
Cir. 1992) (internal citations omitted)).1
Plaintiff argues that GTL is liable under the symbiotic relationship or “nexus” test. (ECF
No. 22 at 3 “The Defendant’s Section 1983 argument fails because Plaintiff can establish a
nexus.”). Under the symbiotic test, the action of a private party constitutes state action where
“there is a sufficiently close nexus between the state and the challenged actions of the regulated
entity so that the action of the latter may be fairly treated as that of the state itself.” Wilcher v.
City of Akron, 498 F.3d 516, 520 (6th Cir. 2007).
To be sure, “[t]here is no ‘readily applicable formula’ for finding such a close nexus;
divining such a close relationship can only be accomplished ‘in the framework of the peculiar
facts or circumstances present.’” Wilcher, 498 F.3d at 520 (quoting Burton v. Wilmington

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GTL, citing Marie v. Am. Red Cross, 771 F.3d 344, 362 (6th Cir. 2014), notes an additional
test, the entwinement test. GTL is correct that this test has been recognized in this Circuit. Id.
(“This circuit has recognized as many as four tests to aid courts in determining whether
challenged conduct is fairly attributable to the State: (1) the public function test; (2) the state
compulsion test; (3) the symbiotic relationship or nexus test; and (4) the entwinement test.”); see
also M.S.,756 F. App'x at 513 (“There are four tests generally applied to determine whether a
private actor can be held liable for acting under color of law in § 1983 claims.”). Because
Plaintiff does not assert the entwinement test’s applicability here, the Court need not address it
further.

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Parking Auth., 365 U.S. 715, 726, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)). Indeed, courts frequently
have discussed the idea of a sufficient nexus in terms of “what actions are not enough for a
private entity to be considered a state actor.” M.S. by Covington v. Hamilton Cty. Dep’t of Educ.,
756 F. App’x 510, 514 (6th Cir. 2018) (citing Lansing v. City of Memphis, 202 F.3d 821, 830
(6th Cir. 2000)). On this point, in M.S. the Sixth Circuit recognized particular conduct found to
be insufficient, including: receiving extensive government funding, Rendell-Baker v. Kohn, 457
U.S. 830, 838 (1982); “mere cooperation” between the entities or “an economic benefit”
conferred on a city by a private entity, Lansing, 202 F.3d at 831; regular partnership in public
service activities, Marie v. Am. Red Cross, 771 F.3d 344, 363 (6th Cir. 2014); “extensive state
regulation” of the private entity, American Manufacturers Mutual Insurance Co. v. Sullivan, 526
U.S. 40, 52 (1999); the “minority presence of public officials on the board of a private entity,”
Lansing, 202 F.3d at 8; and a contractual relationship, even when that contract subjects the
private actor to an “extensive and detailed” set of requirements. Wolotsky v. Huhn, 960 F.2d
1331, 1336 (6th Cir. 1992). The Sixth Circuit then explained that “[i]nstead, a plaintiff must
show that the state ‘played a role in the decision’ made by the private actor that led to the
deprivation of Plaintiffs’ rights, either by showing, for example, that the contract necessitated the
private actor’s decision or that state actors were involved in the decision.” Id. (quoting
Wolotsky, 960 F.2d at 1336).
GTL asserts that Plaintiff’s allegations fall far short of his burden here. In GTL’s view,
Plaintiff’s allegations simply describe GTL as a “third-party vendor” or “agent” suggesting, “at
best,” “mere cooperation.” (ECF No. 18 at 5-6.) In its reply, GTL cautions that accepting
Plaintiff’s minimal allegations as sufficient could lead to § 1983 liability for “every private actor
acting as an agent or third-party vendor for a state entity, or otherwise in a contractual

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relationship with a state entity.” (ECF No. 23 at 3.) A fair reading of the Amended Complaint,
however, reveals that GTL characterizes Plaintiff’s allegations too narrowly.
Under a more reasonably broad reading of the Amended Complaint, Plaintiff alleges the
following. Defendants Lambert and Wilson, in their respective roles as ODRC employees,
“directed GTL to access and seize” private information from Plaintiff’s private Facebook®
account. (ECF No. 13 at ⁋⁋ 7, 8.) On June 19, 2020, ODRC utilized GTL’s services to access
Plaintiff’s information. (Id. at ⁋ 38.) Defendant Lambert made the request for “intelligence” to
GTL for “ODRC employees publicly posting racially or politically charged materials on social
media.” (Id. at ⁋⁋ 7, 40.)
Thus, construing the Amended Complaint as true and in the light most favorable to
Plaintiff as the Court is required to do, ODRC employees allegedly dictated GTL’s actions in
obtaining Plaintiff’s information. For purposes of pleading, this suggests a sufficiently close
nexus between GTL and ODRC so that GTL’s conduct relating to accessing Plaintiff’s
information may fairly be attributed to that of ODRC itself. M.S., 756 F. App’x at 514 (“a
plaintiff must show that the state ‘played a role in the decision’ made by the private actor that led
to the deprivation of Plaintiffs’ rights, either by showing, for example, … that state actors were
involved in the decision.”). Accordingly, Plaintiff sufficiently pleads that GTL was acting under
the color of state law or was a state actor for purposes of § 1983 through the symbiotic or nexus
test.2

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In reaching this conclusion, the Court finds GTL’s suggestion that Plaintiff believes discovery
should be permitted to allow him to meet his pleading obligations to be meritless. (ECF No. 23
at 4.) Rather, Plaintiff ‘s discussion (ECF No. 22 at 5) confirms his understanding that, at this
stage, “the Court must determine only whether ‘the claimant is entitled to offer evidence to
support the claims, not whether the plaintiff can ultimately prove the facts alleged.” Strougo v.
Tivity Health, Inc., No. 3:20-CV-00165, 2021 WL 3209567, at *2 (M.D. Tenn. July 29, 2021)
(quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)). (ECF No. 22 at 5 “The full
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GTL also has moved to dismiss Plaintiff’s § 1985 claim against it citing Plaintiff’s
insufficient pleading. In response, Plaintiff concedes that he has failed to adequately plead a §
1985 claim. To be clear, as the Court understands Plaintiff’s § 1985 claim, it is directed, in part,
to John Doe GTL employees and not GTL the corporate entity. (ECF No. 13 at 102 “Defendants
Lambert, Wilson and John Doe GTL employees…”) In his very limited discussion, however,
Plaintiff does not acknowledge this distinction. (ECF No. 22 at 6 “Plaintiff concedes the
arguments made by the Defendant.”) Under this circumstance and limiting itself to the confines
of the current motion, the Court interprets Plaintiff’s concession as his agreement that he has not
stated a § 1985 claim against GTL. Accordingly, for this reason, GTL’s Motion to Dismiss is
GRANTED as to Plaintiff’s 1985 claim, to the extent it could be construed as having been
asserted against GTL as a corporate entity.
IV.

CONCLUSION

For the reasons set forth above, GTL’s Motion to Dismiss (ECF No. 18) is DENIED, in
part, and GRANTED, in part. The Motion is DENIED with respect to Plaintiff’s claim
brought pursuant to 42 U.S.C. § 1983 against GTL (Count VI). The Motion is GRANTED as it
relates to any claim brought pursuant to 42 U.S.C. § 1985 against GTL.
IT IS SO ORDERED.

Date: January 10, 2022

/s/ Elizabeth A. Preston Deavers________
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

extent” of GTL’s conduct “remains to be fully explored.” “It is premature at this stage to
conclude that [GTL’s conduct] is not attributable to the state.”) The Court, consistent with
Plaintiff’s understanding of its obligation, has made such a determination here. Whether
Plaintiff can ultimately prove the facts alleged, of course, remains an issue to be addressed as
appropriate at a later stage of the proceeding.
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