United States District Court, D. Delaware
GREGORY M. SLEET, District Judge.
The plaintiff, Andrew Poulos, Jr. ("Poulos"), appears prose and has paid the filing fee. Before the court is the defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and Poulos' opposition thereto. (D.I. 7, 14.)
Poulos alleges the defendants violated his civil rights and has filed this complaint pursuant to 42 U.S.C. § 1983. (D.I. 31.) Poulos was employed as a law enforcement officer for the New Castle City Police Department ("NCCPD") from January 9, 2002 until July 28, 2003. At the pre-employment phase, Poulos signed an authorization for the release of records so that the NCCPD could conduct a background investigation and determine his fitness for a law enforcement position. During Poulos' tenure with the NCCPD, he was the subject of two administrative investigations. When Poulos resigned from the NCCPD, it was agreed that the defendant, the City of New Castle ("the City"), would respond to any inquiry regarding Poulos by providing only his dates of employment absent a signed waiver from Poulos.
In December 2003, Poulos began federal employment as a civilian law enforcement officer with the Department of the Army at Fort Monmouth, New Jersey, and held a position there until September 2011 when his position was eliminated due to a reduction in manpower. When Poulos began his federal employment, he was subjected to suitability and security clearance investigations and signed an authorization form for the Office of Personnel Management, Federal Investigative Service ("OPM-FIS") to obtain information and documents from Poulos' prior employers. A written request was sent to the defendant Major Kevin McDerby ("McDerby"), chief of police for the NCCPD, who provided the OPM-FIS with a copy of the results of Poulos' last administrative investigation. McDerby was also asked to recommend that Poulos be granted a national security clearance, but he declined to do so. Regardless, Poulos was given a security clearance.
In December 2010, Poulos became the subject of a criminal investigation by the United States Army Criminal Investigation Command ("USACIC") that was related to an intelligence assessment Poulos had conducted. On June 14, 2011, military special agent Brandon Manzo ("Manzo") spoke to Bernard Torre ("Torre") who was one of Poulos' supervisors when he was employed by the NCCPD. Torre acknowledged that there was an incident involving Poulos that resulted in his resignation, but did not release any specific details. Thereafter, the defendant Thomas M. Donlon ("Donlon"), a detective with the NCCPD, made an unsolicited call to Manzo and relayed that he had additional information regarding Poulos' employment with the NCCPD. Conlon and Manzo spoke on June 15, 2011, and Donlon disclosed details of two administrative investigations. Poulos alleges the disclosure of this information violated 11 Del. C. § 9200(c)(11).
On June 21, 2011, McDerby asked the defendant Lieutenant Adam P. Brams, Sr. ("Brams") if Poulos' files were ready because an investigator from the Army was coming to the NCCPD. Brams indicated that he had Poulos' background file, personnel file, and internal affairs file/notebook ready. Poulos alleges that on June 22, 2011, Donlon released the information to Manzo without Manzo providing written consent from Poulos, a grand jury subpoena, search warrant, or a written request in violation of Department of Justice guidelines, the Americans with Disabilities Act, the Delaware Health Care Privacy Act, the New Castle City Personnel Manual, the Fair Credit Reporting Act, the Family Education Rights and Privacy Act, and 11 Del. C. § 9201. Poulos alleges that during the June 22, 2011 meeting, Donlon revealed confidential information about the administrative investigations.
The federal investigation was closed without the filing of any charges, either criminally or administratively. However, Manzo's investigative report contained all of the confidential information provided him by employees of the NCCPD and it was disseminated to numerous top level management officials of agencies within the U.S. Department of Defense and the U.S. Department of Justice. Thereafter, on June 1, 2012, Poulos mailed a notice of intent to file a civil suit to the City and McDerby. Poulos alleges that once they received the notice of intent to sue, Donlon and the defendant, detective Richard P. McCabe ("McCabe"), began investigating Poulos' background subsequent to the time he left his employment with the NCCPD. Poulos alleges the investigation was performed while the defendants were on-duty as law enforcement officers with the City and with the direct knowledge of McDerby.
On January 24, 2013, Poulos made a request through the Delaware Freedom of Information Act ("FOIA") for copies of his own internal affairs files maintained by the City. The request was denied on the grounds of confidentiality under the Delaware Law Enforcement Officer's Bill of Rights. Poulos alleges that McDerby and Brams are trained on the confidentiality provisions of the Delaware Law Enforcement Officer's Bill of Rights.
Count I is raised against McDerby, Brams, and Donlon and alleges violations of Poulos' right to privacy under the Fourteenth Amendment; Count II is raised against McDerby, Brams, and Donlon and alleges § 1983 conspiracy; Count III is raised against the City of New Castle and alleges violation of Poulos' civil rights through the failure to implement appropriate policies, customs, and practices; Count IV is raised against Donlon and alleges defamation under Delaware common law; Counts V and VI are raised against McDerby, Brams, and Donlon and alleges invasion of privacy under Delaware common law; and Count VII is raised against McDerby and alleges false light of privacy under Delaware common law. The defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted and, in the alternative, that the defendants are immune from suit. Poulos opposes the motion.
II. ST AND ARDS OF LAW
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See Williams v. BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) ( quoting Iqbal, 556 U.S. at 678). Though "detailed factual allegations" are not required, a complaint must do more than simply provide "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. (quoting Twombly, 550 U.S. at 555). Because Poulos proceeds prose, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
A. Count I, § 1983 Right to Privacy (against McDerby, Brams, Donlon)
The defendants move for dismissal of Count I on the grounds that the claim sounds in negligence or gross negligence and does not satisfy the publication requirement of a privacy claim. Poulos responds that the actions of the defendants were deliberate and the information was ultimately disseminated to individuals in Poulos' professional community.
The Supreme Court has opined that the "right of privacy" is founded in the Fourteenth Amendment concept of personal liberty. See Whalen v. Roe, 429 U.S. 589, 599 n.23 (1977). One interest protected by the constitutional right is the individual's right to control the nature and extent of information released about that individual. See Whalen, 429 U.S. at 599-600; Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 457 (1977) (noting that the right to privacy includes an "individual interest in avoiding disclosure of personal matters'"); Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998) (holding that undercover police officers, whose personal files had been released to a violent gang which they had infiltrated and were testifying against, possessed a privacy interest in preserving their lives, personal security, and bodily integrity). "There is no absolute protection against disclosure. Disclosure may be required if the government interest in disclosure outweighs the individual's privacy interest." Fraternal Order of Police, Lodge 5 v. City of Philadelphia, 812 F.2d 105, 110 (3d Cir. 1987). "The question of whether a federal constitutional right to privacy has been violated is a distinct question from whether a federal statutory right to privacy ( i.e., under FOIA) or a state common law right to privacy has been violated." Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206-07 (3d Cir. 1991) (citing United States Dep't ofJustice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 n.13 (1989)).
Having reviewed the allegations in the complaint, the court concludes that Poulos has adequately stated a claim for violations of his constitutional right to privacy. While the defendants rely upon Hurst v. State Farm Mutual Auto. Insur. Co., 2012 WL 426018 (D. Del. Feb. 9, 2012), to support their position, they fail to acknowledge that in Hurst, the constitutional claims were entwined with state claims and that the information at issue had previously been disseminated by Hurst. The court must liberally construe the allegations in the complaint. Poulos alleges that the defendants took intentional actions to disclose personal information and that ...