Case: 1:19-cv-00475-MRB Doc #: 24 Filed: 08/23/19 Page: 1 of 9 PAGEID #: 376

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOHN DOE 1 and JOHN DOE 2, : Case No. 1:19-cv-475

:
Plaintiffs, : Judge Michael R. Barrett
:
v. :
: DEFENDANT CITY OF
CITY OF CINCINNATI, et al., : CINCINNATI’S
: MOTION TO DISMISS
Defendants. :
:
:
____________________________________________________________

Defendant City of Cincinnati moves for dismissal of the Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6). The grounds for the motion are set forth in the

attached Memorandum in Support.

Respectfully submitted,

PAULA BOGGS MUETHING (0080018)

City Solicitor

s/ Emily Smart Woerner

Emily Smart Woerner (089349)
Peter J. Stackpole (0072103)
City Hall, Room 214
801 Plum Street
Cincinnati, Ohio 45202
Telephone: (513) 352-3307
Fax: (513) 352-1515
Email: emily.woerner@cincinnati-oh.gov
Counsel for Defendant City of Cincinnati

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I. Introduction

The City’s compliance with the Ohio Public Records Act does not constitute a

violation of the unknown Plaintiffs’ constitutional rights. Because Plaintiffs’ Complaint—

rooted in speculation and supported by conclusory statements—does not state a claim

upon which relief can be granted, it should be dismissed.

II. Facts

Throughout 2018, the City was defending an open meetings lawsuit, and in the

course of the defense, the private cell phones of certain Councilmembers were copied by

a firm called Binary Intelligence. Complaint, Doc. 1, PageID 5-6. As a result of the open

meetings lawsuit, the City produced certain text messages from the copies of the cell

phones. Id at PageID 6. Subsequent to the lawsuit, the City has received public records

requests for communications that involve its Councilmembers. Id. at PageID 7. The City

has responded to these public records requests. Id.

Aside from a single, conclusory allegation that the City produced private

individuals’ “private communications,” the Complaint does not allege that any messages

about parties, sporting events, neighborhood gatherings, campaign strategy or political

organizing was actually produced to Mr. Shrive.

III. Standard of Review

In reviewing a motion to dismiss a court must “construe the complaint in the light

most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and

determine whether the plaintiff undoubtedly can prove no set of facts in support of the

claims that would entitle relief.” Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 761 (6th Cir.

2006) citing Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). Additionally, the

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Plaintiff must allege facts that, if accepted as true, are sufficient “to raise a right to relief

above the speculative level” and to “state a claim that is plausible on its face.” Bell Atlantic

v. Twombly, 550 U.S. 544, 555, 570 (2007).

Examining whether a complaint states a plausible claim for relief is a “context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Consequently,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. at 1949. The United States Court of Appeals for the Sixth

Circuit has applied the “Iqbal/Twombly standard” and dismissed a complaint for failure

to state a claim upon which relief can be granted. Courie v. Alcoa Wheel & Forged

Products, 577 F.3d 625 (6th Cir. 2009).

The complaint need not contain “detailed factual allegations,” but must

provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels

and conclusions” or “a formulaic recitation of the elements of a cause of action will not

do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked

assertion[s]” devoid of “further factual enhancement.” Iqbal, 129 S.Ct. at 1949 (citing

Twombly, 550 U.S. at 557). While the plaintiff need not plead specific facts, his statement

must “give the defendant fair notice of what the . . . claim is and the grounds upon which

it rests.” Erickson, 551 U.S. at 93 (citations omitted).

IV. Argument

Plaintiffs’ Complaint against the City should be dismissed in its entirety. First,

Plaintiffs do not have standing to contest a Fourth Amendment violation for text messages

received by the City Councilmembers. Second, Plaintiffs fail to state a claim for a violation

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of the First Amendment because any burden to Plaintiffs’ right of association is

outweighed by the compelling government interest in governmental transparency

mandated by the Ohio sunshine laws. Third, Plaintiffs have not raised a cognizable due

process claim. Finally, the City is immune from the invasion of privacy tort, and the

analogue Ohio constitutional claims fail as well.

A. Plaintiffs lack an objective expectation of privacy in text

messages received by City public officials

Plaintiffs do not have standing to raise a Fourth Amendment claim against the City

for text messages they sent to City Councilmembers. To establish a Fourth Amendment

violation, a plaintiff must first demonstrate an actual, subjective expectation of privacy,

and whether that expectation of privacy was a “legitimate, objectively reasonable

expectation.” United States v. Smith, 263 F.3d 571, 583 (6th Cir. 2001). In general, the

sender of a communication only has a reasonable expectation of privacy until the message

is received. United States v. King, 55 F.3d 1193, 1195 (6th Cir. 1995) (holding no

expectation of privacy in letters once they are delivered). This is true even if the sender

directs the recipient to keep the letter private. Id. Courts have continued to apply this

doctrine in the modern age, including email communications. United States v.

Charbonneau, 979 F.Supp. 1177, 1184 (S.D. OH 1997) (noting that once a message is

received, the control of it lies with the recipient, not the sender). Courts have applied a

similar rationale to text messages. United States v. Gardner, 887 F.3d 780,784 (6th Cir.

2018) (applying third-party consent doctrines to cell phone text messages); State v.

Patino, 93 A.3d 40 (R.I. 2014)(holding that a person does not have an expectation of

privacy in texts found on someone else’s phone); State v. Tentoni, 2015 WI App 77 (WI

App. 2015), ¶¶ 9-11 (holding that no privacy in text messages received by someone else).

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Here, Plaintiffs have not alleged that their own phones were copied by the City;

rather, they argue they did not consent to their messages being replicated. That argument

is fundamentally flawed because once the Plaintiffs sent the messages that were received

by the Councilmembers, they lost all Fourth Amendment privacy expectations associated

with the content of the messages. More than that, to the extent that any Plaintiffs

discussed City business with City officials, their reasonable expectation of privacy is

further diminished.

Plaintiffs will no doubt reply that recent United States Supreme Court cases have

overruled this precedent. They did not. While Riley v. California does expound upon the

amount of information today’s cell phones contain, it is properly read solely as limiting

warrantless searches incident to arrest and no more. 573 U.S. 373 (2014). Moreover, in

the five years since its release, the Sixth Circuit has not overruled or questioned the

essential holding of King as applied to texts. Similarly, the Court in Carpenter explicitly

stated that “Our decision today is a narrow one.” Carpenter v. United States, 138 S.C.

2206, 2220 (2018). The Court explained that the third-party doctrine did not apply to cell

phone location data in part because it is shared constantly with the cell provider with little

to no action by the person. Id. at 2219-2220. Here, sending a text message to another

person is a voluntary act that requires actual thought and action by the sender. The

concerns raised in Carpenter are not present.

As Plaintiffs cannot establish standing for Fourth Amendment purposes, their

Fourth Amendment claim should be dismissed.

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B. Plaintiffs’ freedom of association is not burdened by the City

maintaining a mix of public and nonpublic records until they
can be properly deleted

Plaintiffs’ First Amendment claim also fails. Here it is important to put the First

Amendment claim in context. This is not a claim of compelled speech—no one required

Plaintiffs to communicate with the Councilmembers or expose their identities to the

Councilmembers. NAACP v. Alabama, 357 U.S. 449 (1958). Neither is the City requiring

Plaintiffs to turn over any information about them or their associations in order to receive

a permit. Balew v. Giles County Adult-Oriented Establishment Bd, 2005 U.S. Dist. LEXIS

46996 (M.D. TN 2005). Rather it appears that Plaintiffs are arguing that by retaining

information gathered for a lawsuit, the City is violating their associational rights.

But Plaintiffs’ arguments rest on a faulty, speculative premise: that the

Councilmembers will release non-public communications. The Court need not accept

these conclusory statements as true for the purposes of deciding this motion. In fact,

Plaintiffs have not pointed to a single released message that is not a public record. And

even assuming that an associational right is implicated here, the public’s right to a

transparent government is a compelling governmental interest which must be weighed

against Plaintiffs’ interest in anonymity. “One of the salutary purposes of the Public

Records Law is to ensure accountability of government to those being governed.”

Kallstrom v. City of Columbus, 136 F.3d 1055, 1065 (6th Cir. 1998), citing State ex rel.

Strothers v. Wertheim, 80 Ohio St.3d 155 (1997); see also Nixon v. Adm’r of General

Servs., 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867, 1977 U.S. LEXIS 24. As Plaintiffs

cannot establish the City has or will reveal non-public record, their First Amendment

claim fails as well.

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C. Plaintiffs’ Fourteenth Amendment claims fail

Plaintiffs also raise due process claims without citing to a single Fourteenth

Amendment case for support. In order to establish a procedural due process violation,

Plaintiffs must first identify a life, liberty, or property interest protected by the Due

Process Clause. Doe v. Ohio State, 136 F.Supp. 3d 854, 866 (S.D. OH 2016). Plaintiffs

have not identified the interest that is at stake by the City’s actions. And while it is true

that the Sixth Circuit has recognized a protected privacy interest that prohibits some

information from release under public records law, that type of information is not at issue

here. Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998).

In Kallstrom, the Sixth Circuit found a substantive due process right to

nondisclosure only where the release of information would rise to the level of threatening

the personal security and bodily integrity of the police officers involved. Id. at 1064.

Plaintiffs have made no argument that their personal security or bodily integrity is at

stake, unlike the police officers in Kallstrom who reasonably feared for their safety if gang

members received their identities. Id. at 1065. At most, Plaintiffs have identified

information they assert the City possesses that would not constitute public record. And if

the information is not subject to disclosure under the public record act, then the City will

not disclosure these highly personal matters.

Plaintiffs’ argument is similar to the one raised in Doe v. Ohio State. 136 F.Supp.

3d 854, 869 (S.D. OH 2016). In that case, the Court declined to issue a preliminary

injunction prohibiting Ohio State from investigating Doe. Id. Doe was concerned that

records of the investigation might be disclosed in the future. Id. The Court rejected Doe’s

speculation as a basis for an injunction, finding that FERPA prohibited the release of the

records that would be created. Id. Similarly, Plaintiffs have only presented the Court with

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the same type of speculation. It should be rejected, and the injunction request should be

denied.

D. The City is not liable for the Ohio Constitutional or tort

claims
The Plaintiffs’ claims under the Ohio Constitution fail for the same reasons that

their federal claims fail. In addition, the City is immune from intentional torts like

invasion of privacy. R.C. 2744.02(A)(1); see also Sollenberger v. Sollenberger, 173

F.Supp. 3d 608, 627 (S.D. OH 2016). And even if immunity did not apply, Plaintiffs

cannot establish an invasion of privacy claim because the City’s actions were not done in

a way that would “outrage or cause mental suffering, shame or humiliation to a person of

ordinary sensibilities.” Luis v. Zang, 2018 U.S. Dist. LEXIS 58753 (S.D. OH 2018).

Therefore, those claims should be dismissed as well.

E. Plaintiffs failed to properly plead a claim for municipal

liability under Section 1983

Although the Complaint is styled as an action pursuant to 42 U.S.C. Section 1983,

they did not properly plead a claim for municipal liability. In order for a municipality to

be liable under Section 1983, a plaintiff must show that the violation was due to a

municipal policy or custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). This

is true even in cases seeking prospective relief, such as an injunction or declaratory

judgment. L.A. County v. Humphries, 562 U.S. 29, 31 (2010). Here, the Complaint lacks

any allegations regarding the City’s policies or customs. Moreover, Plaintiffs’ claims

constitutional claims fail for the reasons stated above, and without a constitutional

violation, a municipality cannot be liable. City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986). It also follows that without a Section 1983 violation that any award of attorneys’

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fees under Section 1988 similarly fails. Therefore, all the federal claims should be

dismissed.

V. Conclusion
The City has complied with the law and not violated anyone’s constitutionally

recognized privacy rights. The Court should dismiss Plaintiffs’ Complaint.

Respectfully submitted,

PAULA BOGGS MUETHING (0080018)

City Solicitor

s/ Emily Smart Woerner

Emily Smart Woerner (089349)
Peter J. Stackpole (0072103)
City Hall, Room 214
801 Plum Street
Cincinnati, Ohio 45202
Telephone: (513) 352-3307
Fax: (513) 352-1515
Email: emily.woerner@cincinnati-oh.gov
Counsel for Defendant City of Cincinnati

CERTIFICATE OF SERVICE

I hereby certify that on August 23, 2019, a true and accurate copy of the foregoing

was filed electronically. Notice of this filing will be sent to all parties by operation of the

Court’s electronic filing system. No copies of this filing are being mailed to any parties,

as all parties are currently being served via the Court’s electronic filing system and thereby

may access this filing through that system.

s/ Emily Smart Woerner

Emily Smart Woerner (089349)

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