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Potocnik v. Carlson

United States District Court, D. Minnesota

March 24, 2014

WALTER CARLSON, acting in his individual capacity as a Sergeant for the City of Minneapolis Police Department; CITY OF ANOKA; CITY OF BLOOMINGTON; CITY OF BROOKLYN CENTER; CITY OF COON RAPIDS, CITY OF MINNEAPOLIS; MICHAEL CAMPION, acting in his individual capacity as Commissioner of the Minnesota Department of Public Safety; RAMONA DOHMAN; JOHN AND JANE DOES (1-500), acting in their individual capacity as supervisors, officers, deputies, staff, investigators, employees or agents of the other law-enforcement agencies; DEPARTMENT OF PUBLIC SAFETY DOES (1-30), acting in their individual capacity as officers, supervisors, staff, employees, independent contractors or agents of the Minnesota Department of Public Safety; ENTITY DOES (1-50), including cities, counties, municipalities, and other entities sited in Minnesota and federal departments and agencies, Defendants

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Kenneth H. Fukuda, Jonathan A. Strauss, Lorenz F. Fett, Jr., Sonia Miller-Van Oort, and Mark H. Zitzewitz, SAPIENTIA LAW GROUP, PLLC, for plaintiff.

Peter G. Mikhail and Mary D. Tietjen, KENNEDY & GRAVEN, CHARTERED, for defendant Walter Carlson.

Oliver J. Larson, MINNESOTA ATTORNEY GENERAL'S OFFICE, for defendants Michael Campion and Ramona Dohman.


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Patrick J. Schiltz, United States District Judge.


Plaintiff Sheila Potocnik brings numerous claims against numerous defendants for unlawfully disclosing or obtaining information contained in her driver's-license record. This matter is before the Court on two motions: the motion of defendants Michael Campion and Ramona Dohman (collectively, " the Commissioners" ) to dismiss for failure to state a claim and the motion of defendant Walter Carlson for partial judgment on the pleadings. For the reasons stated below, both motions are granted.


A. Allegations against Sergeant Carlson

Defendant Walter Carlson is a Minneapolis police sergeant. Compl. ¶ 12. He is also the father of a woman (" Ms. Carlson" ) who was in a 10-year relationship with Potocnik's brother, Duane DeMeules. Compl. ¶ 29. DeMeules and Ms. Carlson had two children together. Compl. ¶ 29. After that relationship ended, Potocnik and Ms. Carlson remained friendly. Compl. ¶ 31. Sergeant Carlson, however, disliked DeMeules and frequently threatened him with violence. Compl. ¶ 38.

In 2010, Potocnik called Ms. Carlson on her brother's behalf to ask whether he could visit his children. Compl. ¶ 32. Ms. Carlson initially agreed to limited visitation. Compl. ¶ 33. Potocnik called back a couple of times to set up a visitation schedule, but initially received no response. Compl ¶ 35. Eventually, Ms. Carlson called Potocnik to say that she had changed her mind and that she preferred to have a formal visitation schedule set up by a court or a mediator. Compl. ¶ 36. Potocnik said that she understood and would inform her brother. Compl. ¶ 37.

On October 8, 2010, Sergeant Carlson called Potocnik's cell phone from the Minneapolis Police Department. Compl. ¶ 39. Carlson yelled and swore at Potocnik, telling her not to " call his f***cking daughter again" and saying that he " didn't want Potocnik's f***ing brother or anybody in their family around his grandkids." Compl. ¶ 41.

During the phone call, Carlson revealed to Potocnik that he knew that she lived in St. Michael, that she worked at North Memorial Hospital, and that she was in school for law enforcement. Compl. ¶ ¶ 43-45.

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Carlson also said that he knew that Potocnik was planning to take the Minnesota Board of Peace Officers Standards and Training Test, and Carlson demanded to know when she would take it. If she refused to tell him, Carlson said, " I can easily find out from other sources." Compl. ¶ 47. Carlson also referred to Potocnik's then-boyfriend, who was a former Minneapolis police officer, and Carlson derogatorily referred to Potocnik's sister Laura, who had been murdered in Carlson's precinct in 2005. Compl. ¶ 48-56. Carlson said that he " knew [Laura] very well" and that he " kn[ew] what happened. Real great family." Compl. ¶ ¶ 55-56.

Potocnik ended the phone call, which left her frightened for her safety. Compl. ¶ ¶ 44, 57. Over the next hour and a half, Carlson tried calling back several times. Compl. ¶ 58. Potocnik eventually called Carlson, who began screaming and verbally attacking Potocnik, her brother, and her father. Compl. ¶ ¶ 59-65. He also brought up Potocnik's sister Laura again. Compl. ¶ 71. Potocnik asked Carlson how he was getting all of this information. Compl. ¶ 66. Carlson admitted to using his computer at the Minneapolis Police Department to find information about Potocnik and her family. Compl. ¶ 67.

Potocnik complained to the Minneapolis Police Department's Internal Affairs unit. Compl. ¶ 72. Scott Zierden was assigned by the department to conduct an investigation.[1] Compl. ¶ 73. Zierden told Potocnik that Carlson admitted accessing the Department of Vehicle Services (" DVS" ) database to obtain information about Potocnik and her family. Compl. ¶ 85. The case was referred to the St. Paul City Attorney for a criminal investigation. Compl. ¶ 86. During the investigation, the Department of Public Safety conducted an audit of Carlson's use of the DVS database. Compl. ¶ 88. The audit revealed that, since 2003, Carlson had repeatedly accessed records unrelated to official business or work-related assignments. Compl. ¶ 88. Beginning in 2004, Carlson had accessed Potocnik's DVS record 26 times, including twice on the day that he made the threatening calls to her. Compl. ¶ ¶ 112-13. Carlson also accessed her DVS record after the threatening phone calls, and continued to access her record during the internal-affairs investigation. Compl. ¶ ¶ 114-15.

Potocnik later requested an audit of her DVS record. Compl. ¶ 152-53. The audit disclosed that Potocnik's DVS record has been accessed over 75 times since 2004 by various officers from various cities and various public agencies. Compl. ¶ 3; see also Compl. ¶ ¶ 101-07. The audit indicated that the inquiring officers had used Potocnik's name, not her license-plate number, to access her record. Compl. ¶ 164.

B. Allegations against the Commissioners

Defendant Michael Campion was formerly the Commissioner of the Department of Public Safety (" DPS" ), which created and maintains the DVS database. Compl. ¶ ¶ 24, 99. During Campion's tenure, the DVS database was developed into its current format. Compl. ¶ 196. Defendant Ramona Dohman is Campion's successor. Compl. ¶ 25. Both Campion and

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Dohman have been involved in law enforcement for many years. Compl. ¶ ¶ 190-95.

Potocnik alleges that the Commissioners are well aware of widespread misuse of the DVS database, but they have ignored the problem and failed to safeguard the database, provide adequate training, or correct abuses. Compl. ¶ ¶ 197, 200. And even if the Commissioners did not actually know of the misuse of the DVS database, Potocnik alleges, they were nevertheless reckless or grossly negligent in supervising their subordinates who operated the database.[2] Compl. ¶ ¶ 150-51.


Potocnik brings (1) claims under the Driver's Privacy Protection Act (" DPPA" ), 18 U.S.C. § § 2721 et seq., (2) constitutional and statutory claims under 42 U.S.C. § 1983, and (3) a state-law claim of invasion of privacy. The Commissioners move to dismiss all of the claims against them. Sergeant Carlson moves for judgment on the pleadings as to the § 1983 and invasion-of-privacy claims and argues that, insofar as the DPPA claims are based on acts that occurred before August 1, 2009, those claims are barred by the statute of limitations.

A. Standard of Review

In reviewing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008). Although the factual allegations in the complaint need not be detailed, they must be sufficient to " raise a right to relief above the speculative level . . . ." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint must " state a claim to relief that is plausible on its face." Id. at 570. In assessing the sufficiency of the complaint, the court may disregard legal conclusions that are couched as factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Ordinarily, if the parties present, and the court considers, matters outside of the pleadings, a motion to dismiss must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d). But the court may consider materials that are necessarily embraced by the complaint, as well as exhibits attached to the complaint, without converting the motion into one for summary judgment. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003).

A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is assessed under the same standards as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Ashley Cnty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).


1. The Commissioners

Potocnik alleges that, by creating and maintaining the DVS database without

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adequate safeguards despite being aware that it is frequently misused, the Commissioners knowingly disclosed her personal information in violation of the DPPA. Compl. ¶ ¶ 128-30. Potocnik's DPPA claim against the Commissioners fails, however, because she has not plausibly alleged that the Commissioners had an impermissible purpose when they disclosed her personal information.

The DPPA prohibits a state department of motor vehicles and its officers, employees, and contractors from " knowingly disclos[ing] or otherwise mak[ing] available to any person or entity" either " personal information" or " highly restricted personal information" obtained by the department in connection with a motor-vehicle record.[3] 18 U.S.C. ยง 2721(a). (In this order, the Court will collectively refer to " personal information" and " highly restricted personal information" as " personal information." ) The DPPA carves out various exceptions to this prohibition; for example, the DPPA authorizes disclosure of personal information " [f]or use by any government agency, ...

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