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Rollins v. City of Albert Lea

United States District Court, D. Minnesota

December 8, 2014

Summer Michelle Rollins, Plaintiff,
v.
City of Albert Lea; Anoka County; City of Anoka; City of Blaine; City of Breezy Point; City of Brooklyn Park; City of Champlin; City of Coon Rapids; Dakota County; City of Elk River; Hennepin County; City of Howard Lake; City of Maplewood; City of Minnetonka; City of Mora; City of North St. Paul; City of Ramsey; Ramsey County; City of Rogers; City of Roseville; Sherburne County; City of St. Paul; Washington County; Michael Campion, in his individual capacity as the Commissioner of the Department of Public Safety; Ramona Dohman, in her individual capacity as the Commissioner of the Department of Public Safety; John and Jane Does (1-600) acting in their individual capacity as supervisors, officers, deputies, staff, investigators, employees or agents of the other governmental 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; and Entity Does (1-50) including cities, counties, municipalities, and other entities sited in Minnesota, Defendants

As Amended December 17, 2014

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[Copyrighted Material Omitted]

Page 948

[Copyrighted Material Omitted]

Page 949

Lorenz F. Fett, Jr., Sonia L. Miller-Van Oort, Jonathan A. Strauss, Sapientia Law Group PLLC, Minneapolis, MN, for Plaintiff.

Jon K. Iverson, Stephanie A. Angolkar, Susan M. Tindal, Iverson Reuvers Condon, Bloomington, MN, for Defendants City of Albert Lea, City of Anoka, City of Blaine, City of Breezy Point, City of Brooklyn Park, City of Champlin, City of Coon Rapids, City of Elk River, City of Howard Lake, City of Maplewood, City of Minnetonka, City of Mora, City of North St. Paul, City of Ramsey, City of Rogers, and City of Roseville.

Bryan D. Frantz, Anoka County Attorney's Office, Anoka, MN, for Defendant Anoka County.

Amelia N. Jadoo and Helen R. Brosnahan, Dakota County Attorney's Office, Hastings, MN, for Defendant Dakota County.

Toni A. Beitz, Beth A. Stack, and Daniel D. Kaczor, Hennepin County Attorney's Office, Minneapolis, MN, for Defendant Hennepin County.

Kimberly R. Parker and Robert B. Roche, Ramsey County Attorney's Office, St. Paul, MN, for Defendant Ramsey County.

Erin E. Benson, Margaret A. Skelton, Timothy A. Sullivan, Ratwik, Roszak & Maloney PA, Minneapolis, MN, for Defendants Sherburne County and Washington Counties.

Kara M. Kisch, Office of the St. Paul Attorney, St. Paul, MN, for Defendant City of St. Paul.

Oliver J. Larson, Minnesota Attorney General's Office, St. Paul, MN, for Defendants Michael Campion and Ramona Dohman.

Page 950

AMENDED MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, United States District Court Judge.

I. INTRODUCTION

This matter is before the Court on the following motions: (1) Defendant Hennepin County's Motion to Dismiss and/or to Sever [Doc. No. 19]; (2) Defendants City of Albert Lea, City of Anoka, City of Blaine, City of Breezy Point, City of Brooklyn Part, City of Champlin, City of Coon Rapids, City of Elk River, City of

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Howard Lake, City of Maplewood, City of Minnetonka, City of Mora, City of North St. Paul, City of Ramsey, City of Rogers, and City of Roseville's Motion to Dismiss and/or Sever [Doc. No. 25]; (3) Defendant Ramsey County's Motion to Dismiss or for Severance [Doc. No. 31]; (4) Defendant City of St. Paul's Motion to Dismiss or Alternatively to Sever [Doc. No. 36]; Defendant Dakota County's Motion to Dismiss [Doc. No. 46]; (5) Defendant Anoka County's Motion to Dismiss [Doc. No. 60]; (6) Defendants Sherburne and Washington Counties' Motion to Dismiss and/or to Sever [Doc. No. 73]; and (7) Defendants Commissioner Ramona Dohman and Commissioner Michael Campion's Motion to Dismiss [Doc. No. 79]. For the reasons set forth below, the Court denies in part and grants in part these motions.

II. BACKGROUND

Plaintiff Summer Michelle Rollins (" Plaintiff" or " Rollins" ) filed this action on January 31, 2014 against the municipal, county, and individual Defendants listed above. (See Compl. [Doc. No. 1].) In Count I of her Complaint, Plaintiff asserts a claim under the Driver's Privacy Protection Act (" DPPA" ), 18 U.S.C. § 2721, et seq., against all Defendants. (Id. ¶ ¶ 311-33.) In Count II, Plaintiff brings a claim under 42 U.S.C. § 1983 against all individual Defendants, including Jane and John Does. (Id. ¶ ¶ 334-51.) In Count III, Plaintiff states an additional claim under 42 U.S.C. § 1983 against all entity Defendants and supervisor Defendants, including John and Jane Entity Does. (Id. ¶ ¶ 352-74.) In Count IV, Plaintiff asserts a 42 U.S.C. § 1983 claim against the Commissioner Defendants and the Minnesota Department of Public Safety (" DPS" ) Does. (Id. ¶ ¶ 375-92.) Finally, in Count V, Plaintiff brings a claim for common law invasion of privacy against all Defendants. (Id. ¶ ¶ 393-98.)

Plaintiff's claims are centered on allegations that law enforcement personnel viewed her private driver's license information in the Minnesota Department of Vehicle Services (" DVS" ) driver's license database and the Bureau of Criminal Apprehension (" BCA" ) database without a legitimate purpose. (See id. ¶ ¶ 1, 6, 56-291.) Specifically, Plaintiff alleges that law enforcement personnel may have accessed her personal information because Rollins has a tenuous relationship with family members who work or worked for the DPS and various police forces. (Id. ¶ ¶ 47-52.) Plaintiff's mother works for the DPS. (Id. ¶ 47.) Rollins and her mother have allegedly had a " tenuous relationship since . . . [Rollins' mother] kicked Rollins out of the house at age 15." (Id. ¶ 49.) Plaintiff's uncle, Ken Rollins, was a police office in Elk River and Mora, and is currently an officer in Howard Lake. (Id. ¶ 48.) Rollins' " other family members" have also served, or continue to serve, as law enforcement officers within the state of Minnesota. (Id.) Plaintiff alleges that her mother and uncle " dislike" Plaintiff because they disapproved of Plaintiff's divorce. (Id. ¶ 50.) Although Plaintiff does not communicate with either her mother or her uncle (id. ¶ 54), Rollins believes that they, and other family members, as well as those government employees who associate with these family members, " have been obtaining, using, or disclosing [Rollins'] information for . . . [illegitimate purposes]" (id. ¶ 55).

In 2013, Plaintiff contacted Kim Jacobson at the DPS and requested an audit of the number of times her name was run on the DVS and BCS databases. (Id. ¶ ¶ 249-53.) On August 7, 2013, Rollins alleges that she learned from the DPS that officers from various departments and agencies accessed her driver's license information 574 times since 2003. (Id. ¶ ¶ 251-53;

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see Ex. A; Ex. B [Doc. No. 1-1].) The chart below itemizes the number of lookups allegedly made by each Defendant for a purpose not permitted under the DPPA:

Entity

Number of times accessed

Hennepin County

9 (Compl. ¶ 109 [Doc. No. 1].)

City of Albert Lea

1 (id. ¶ 69.)

City of Anoka

3 (id. ¶ 77.)

City of Blaine

1(id. ¶ 81.)

City of Breezy Point

57 (id. ¶ 85.)

City of Brooklyn Park

1 (id. ¶ 89.)

City of Champlin

1 (id. ¶ 93.)

City of Coon Rapids

7 (id. ¶ 97.)

City of Elk River

7 (id. ¶ 105.)

City of Howard Lake

26 (id. ¶ 113.)

City of Maplewood

125 (id. ¶ 117.)

City of Minnetonka

N/A (id. ¶ 121)[1]

City of Mora

8 (id. ¶ 125.)

City of North St. Paul

48 (id. ¶ 129.)

City of Ramsey

25 (id. ¶ 133.)

City of Rogers

10 (id. ¶ 141.)

City of Roseville

12 (id. ¶ 145.)

City of St. Paul

12 (id. ¶ 153.)

Dakota County

2 (id. ¶ 101.)

Anoka County

95 (id. ¶ 73.)

Sherburne County

30 (id. ¶ 149.)

Washington County

24 (id. ¶ 157.)

Ramsey County

5 (id. ¶ 137.)

Plaintiff alleges that the searches detailed above were not based on any legitimate law-enforcement, governmental, judicial, or litigation-related purpose. (Compl. ¶ ¶ 74, 255 [Doc. No. 1].) Rather, Rollins claims that these inquiries were a result of governmental employees' curiosity about, or romantic attraction to, Rollins. (Id. ¶ 255.) In fact, before filing suit, Plaintiff requested Entity Defendants " to provide her with any permissible reason it or its employees, agents, and officers had in looking up her information," but Defendants allegedly " never provided any legitimate permissible reason." (Id. ¶ 258.)

Plaintiff describes the driver's license information at issue. She alleges that individual Defendants viewed the following private information: " home address, color photograph or image, date of birth, eye color, height, weight, driver's identification number, and upon information and belief,

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medical and social security information." (Id. ¶ 164.) The Court held oral argument on all of the aforementioned motions on June 19, 2014 [Doc. No. 94].[2]

III. DISCUSSION

A. Standard of Review

Defendants move to dismiss Plaintiff's Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. Defendant Dakota County also moves for judgment on the pleadings pursuant to Rule 12(c). When evaluating a motion to dismiss, the Court assumes the facts in the Complaint to be true and construes all reasonable inferences from those facts in the light most favorable to Plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). However, the Court need not accept as true wholly conclusory allegations, Hanten v. School District of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions Plaintiff draws from the facts pled. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). In addition, the Court ordinarily does not consider matters outside the pleadings on a motion to dismiss. See Fed.R.Civ.P. 12(d). The Court may, however, consider exhibits attached to the complaint and documents that are necessarily embraced by the pleadings, Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003), and may also consider public records, Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).[3]

To survive a motion to dismiss, a complaint must contain " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although a complaint need not contain " detailed factual allegations," it must contain facts with enough specificity " to raise a right to relief above the speculative level." Id. at 555. " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555). In sum, this standard " calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Twombly, 550 U.S. at 556. These same standards apply to a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009); Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012).

B. Plaintiff's Claims

Plaintiff has failed to state cognizable claims in Counts II through V of her Complaint, and the applicable statute of limitations bars some of Plaintiff's Count I claims asserted against Defendants who

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submitted Motions to Dismiss. Below, the Court begins by addressing Plaintiff's § 1983 and intrusion upon seclusion claims against all Defendants. The Court then proceeds by addressing Plaintiff's DPPA claims against each Defendant individually.

1. Counts II, III, IV: Section 1983 Claims

Counts II, III, and IV of Plaintiff's Complaint state causes of action under 42 U.S.C. § 1983. (Compl. ¶ ¶ 334-92 [Doc. No. 1].) Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

In Count II, Plaintiff alleges that the unnamed individual Defendants in this lawsuit, acting under color of state law, violated her statutory rights under the DPPA, her constitutional rights under the Fourth and Fourteenth Amendments, and her rights under the laws of the State of Minnesota. (See Compl. ¶ ¶ 334-51.) In Count III, Plaintiff alleges that the entity and supervisor Defendants are liable for the unnamed individual Defendants' custom and practice of improperly accessing information; their own failure to monitor and enforce the rules; and their failure to train, supervise, and impose proper discipline. (See id. ¶ ¶ 352-74.) In Count IV, Rollins alleges that the Defendant Commissioners and the DPS Does are liable under § 1983 for creating, maintaining, and providing access to the database that included Rollins' private data. (See id. ¶ 375-392.)

The Defendants in this case assert numerous arguments in opposition to Plaintiff's § 1983 claims. First, they argue that the § 1983 claims are barred by the applicable statute of limitations. (See, e.g., Def. Hennepin County's Mem. at 11 [Doc. No. 22].) Second, they argue that Plaintiff's § 1983 claims based on their alleged DPPA violations fail because the DPPA is not separately enforceable under § 1983. (See id. at 18-19.) Third, Defendants assert that Plaintiff's § 1983 claims based on alleged violations of her constitutional rights fail because Plaintiff has not stated a legally-cognizable deprivation of a constitutional right. (See id. at 19-20.) Finally, Defendants argue that Rollins' § 1983 claims based on violations of Minnesota law fail because § 1983 cannot be used to enforce state law. (See id. at 19, n.3.) Because the Court agrees with Defendants' latter three arguments, each of which is dispositive, it declines to address the statute of limitations issue as it applies to Plaintiff's § 1983 claims.

a. DPPA basis

Plaintiff's § 1983 claims fail to the extent that they are based on alleged violations of the DPPA. The reasoning that follows echoes this Court's holding in Rasmusson v. Chisago County, et al., 991 F.Supp.2d 1065, 1072-74 (D. Minn. 2014).

As noted above, a plaintiff may generally use § 1983 to enforce federal statutory rights. In order to determine " whether a statute creates an individually enforceable federal right," a plaintiff must demonstrate that " '(1) Congress intended the statutory provision to benefit the plaintiff; (2) the asserted right is not so vague and amorphous that its enforcement would strain judicial competence; and (3) the provision clearly imposes a mandatory obligation upon the states.'" Midwest Foster Care & Adoption Ass'n v. Kincade, 712 F.3d 1190, 1195 (8th Cir. 2013) (citation omitted). A statute that meets these criteria

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is presumed to be enforceable under § 1983. Id. at 1195-96 (citing Blessing v. Freestone, 520 U.S. 329, 341, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). However, " [a defendant] can rebut this presumption by showing either that Congress explicitly foreclosed a remedy under § 1983 or implicitly did so, 'by creating a comprehensive enforcement scheme that is incompatible with individual enforcement'" under § 1983. Id. at 1196 (quoting Blessing, 520 U.S. at 341); see Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999) (" Courts should presume that Congress intended that the enforcement mechanism provided in the statute be exclusive." ). According to the United States Supreme Court, " a private means of redress in the statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under § 1983." City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005) (citations omitted).

Even if Plaintiff was able to demonstrate that the DPPA constitutes a protectable " right" under the relevant three-prong test and, therefore, that it is presumptively enforceable under § 1983, that presumption is rebutted because Congress has explicitly foreclosed a remedy under § 1983 by creating a comprehensive DPPA enforcement scheme. The DPPA makes the following remedies available in a civil action: (1) actual damages (not less than liquidated damages of $2,500); (2) punitive damages; (3) reasonable attorneys' fees and costs; and (4) other appropriate equitable relief. See 18 U.S.C. § 2724(b). It also provides for criminal fines and civil penalties. Id. § 2723.

In addition, the private remedy contained in the DPPA's comprehensive enforcement scheme is more restrictive than that provided under § 1983, in terms of the category of persons from whom a plaintiff may seek a remedy and the period of time in which a plaintiff may seek a remedy. First, like the DPPA, § 1983 allows for recovery of damages and injunctive relief, as well as costs and a reasonable attorney's fee, in a private cause of action. See 42 U.S.C. § § 1983, 1988(b). However, while an individual may seek injunctive relief under § 1983 against a state official acting in his official capacity, the DPPA expressly precludes civil suits against states and state agencies. See Heartland Academy Community Church v. Waddle, 427 F.3d 525, 530 (8th Cir. 2005) (finding, in a § 1983 case, that there is an exception to sovereign immunity for state officials acting in their official capacity " where the relief sought is prospective and not compensatory" ); 18 U.S.C. § 2724(a) (stating that a " person" who violates the Act shall be liable); id. § 2725(2) (stating that, for purposes of the DPPA, " 'person' means an individual, organization or entity, but does not include a State or agency thereof" ).

Second, as discussed in more detail below, DPPA claims are subject to a four-year statute of limitations. On the other hand, § 1983 actions " brought in Minnesota are subject to a six-year statute of limitations." See McKenzie v. Fabian, No. 08-cv-164 (PAM/JSM), 2008 WL 5122118, at *7 (D. Minn. Nov. 21, 2008) report and recommendation adopted, No. 08-cv-164(PAM/JSM), 2009 WL 259726 (D. Minn. Feb. 3, 2009) aff'd, 359 F.App'x 684 (8th Cir. 2010) (citing Egerdahl v. Hibbing Community College, 72 F.3d 615, 618, n.3 (8th Cir. 1995)). Thus, allowing Plaintiff to pursue her DPPA claims through § 1983 would allow her to enlarge the applicable statute of limitations. Accordingly, the DPPA cannot be enforced through § 1983.

This Court's determination that Plaintiff may not use § 1983 to enforce her rights

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under the DPPA aligns with decisions from several other courts, including multiple district courts within the United States Court of Appeals for the Eighth Circuit. See, e.g., Roberts v. Source for Public Data, 606 F.Supp.2d 1042, 1046 (W.D. Mo. 2008) (dismissing plaintiffs' claim because, " [g]iven [the DPPA's] comprehensive remedial scheme, the [c]ourt must presume that Congress intended that the enforcement scheme it created in the DPPA would be the exclusive remedy for violations, precluding resort to § 1983" ); Nelson v. Jesson, No. 13-cv-340 (RHK/JJK), 2013 WL 5888235, at *7 (D. Minn. Nov. 1, 2013) (noting that " the DPPA's remedial scheme, which is both comprehensive and more restrictive than § 1983, expresses Congress's intent to preclude other means of enforcement," and therefore, finding that state officials acting in their official capacity cannot be held liable for injunctive relief under the DPPA); see also Kiminski v. Hunt, No. 13-cv-185 (JNE/TNL), 2013 WL 6872425, at *14 (D. Minn. Sept. 20, 2013) (holding that the DPPA precludes a § 1983 action because the inability to sue state officials in their official capacity under the DPPA is " significant, especially in light of the statute's overall comprehensive remedial scheme." ).

Plaintiff urges the Court to follow two cases in which the courts have determined that the DPPA is separately enforceable under § 1983: Collier v. Dickinson, 477 F.3d 1306 (11th Cir. 2007), and Arrington v. Richardson, 660 F.Supp.2d 1024 (N.D. Iowa 2009). (See Pl.'s Resp. to Def. Ramsey County at 21-24 [Doc. No. 57].) In Collier, the Eleventh Circuit Court of Appeals determined that the relief provided under the DPPA and § 1983 is " complementary" rather than " conflicting." 477 F.3d at 1311. The court did not examine the nature of the available remedies; instead, it merely stated generally that the DPPA did not create so many statutory remedies as to make it unlikely that Congress intended to preserve a § 1983 claim. Id. In Arrington, the U.S. District Court for the Northern District of Iowa similarly found that the remedial schemes of the two statutes are complementary. 660 F.Supp.2d at 1035. In fact, that court found that the DPPA actually provides " more extensive" remedies than those available under § 1983. Id. at 1032. Thus, the court noted that Congress did not preclude a plaintiff from obtaining a remedy under the DPPA that is otherwise available under § 1983. Id. at 1035.

This Court respectfully disagrees with the reasoning set forth in Collierand Arringtonbecause neither court addressed the fact that, under the DPPA, a plaintiff is precluded from obtaining relief from state officials acting in their official capacity (as opposed to the limited availability of such relief under § 1983). Nor did either court address the difference between the statutes of limitations applicable to each cause of action. As noted above, the Court finds that these considerations, along with the comprehensive nature of the DPPA's remedial scheme, demonstrate Congress' intent to foreclose a remedy under § 1983. Therefore, Plaintiff's § 1983 claims, as stated in Counts II, III, and IV of the Complaint, fail to the extent that they are based on underlying DPPA violations.

b. Federal constitutional bases

Plaintiff's § 1983 claims also fail to the extent that they are based on alleged violations of her constitutional rights. The Court's reasoning that follows is also based upon its holding in Rasmussen. See 991 F.Supp.2d at 1074-77.

" The essential elements of a constitutional claim under § 1983 are (1) that the defendant acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally

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protected federal right." L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, 673 F.3d 799, 805 (8th Cir. 2012) (citation omitted). Here, Plaintiff alleges that each individual Defendant, acting under color of state law, violated her Fourteenth Amendment right to privacy, as well as her Fourth Amendment right to be free from an unconstitutional search, by obtaining her personal driver's license information without a legitimate purpose. (See Compl. ¶ ¶ 341-44 [Doc. No. 1].) However, the facts alleged by Rollins do not raise a right to relief under either basis.

The Eighth Circuit explained in Van Zee v. Hanson that " to violate the constitutional right of privacy," which is guaranteed by the Fourteenth Amendment,:

" the information disclosed must be either a shocking degradation or an egregious humiliation . . ., or a flagrant bre[a]ch of a pledge of confidentiality which was instrumental in obtaining the personal information." . . . . " To determine whether a particular disclosure satisfies this exacting standard, [the court] must examine the nature of the material . . . to assess whether the person had a legitimate expectation that the information would remain confidential while in the state's possession."

630 F.3d 1126, 1128 (8th Cir. 2011) (internal citations omitted). Thus, the " protection against public dissemination of information is limited and extends only to highly personal matters representing 'the most intimate aspects of human affairs.'" Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996) (citation omitted). According to the Eighth Circuit, these standards " set a high bar . . . and many disclosures, regardless of their nature, will not reach the level of a constitutional violation." Cooksey v. Boyer, 289 F.3d 513, 516 (8th Cir. 2002). Similar to the Fourteenth Amendment standards, " [a] search occurs under the Fourth Amendment when . . . 'the government violates a subjective expectation of privacy that society recognizes as reasonable.'" Arnzen v. Palmer, 713 F.3d 369, 372 (8th Cir. 2013) (quoting Kyllo v. United States, 533 U.S. 27, 31-33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)).

The few courts that have analyzed these standards in the context of driver's license information have found that an individual does not have a legitimate expectation of privacy in such information. For example, in Travis v. Reno, the court concluded that there is no legitimate expectation of confidentiality -- and, therefore, no constitutional right to privacy -- in an individual's name, address, telephone number, photograph, social security number, driver identification number, and medical or disability information. 12 F.Supp.2d 921, 925 (W.D. Wis. 1998), rev'd on other grounds, 163 F.3d 1000 (7th Cir. 1998); see also Pryor v. Reno, 171 F.3d 1281, 1288 n.10 (11th Cir. 1999) (stating that " there is no constitutional right to privacy in motor vehicle record information" ), rev'd on other grounds, 528 U.S. 1111, 120 S.Ct. 929, 145 L.Ed.2d 807 (2000); Condon v. Reno, 155 F.3d 453, 464 (4th Cir. 1998) (stating that motor vehicle record information " is the very sort of information to which individuals do not have a reasonable expectation of privacy" ), rev'd on other grounds, 528 U.S. 141, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000).

Similarly, in Kiminski v. Hunt, a judge within this District determined that " [n]one of that data qualifies as so extremely personal as to trigger constitutional -- as opposed to statutory -- privacy protections." 2013 WL 6872425, at *15 (noting that " [n]ot even statutory protection existed for [driver's license record information] until 1994, when Congress passed the DPPA" ); see also Nelson, 2013 WL 5888235, at *5 (finding no reasonable

Page 958

expectation of privacy in the information the plaintiff alleged was contained in his motor vehicle records, which included his name, date of birth, driver's license number and status, address, photograph, weight, height, and eye color).

Plaintiff argues that the Supreme Court's decision in Maracich v. Spears, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013), demonstrates " the importance of the privacy rights created by the DPPA." (See Pl.'s Resp. to Ramsey County at 19-21 [Doc. No. 1].) In that case, the Court considered whether an attorney's solicitation of clients constituted a permissible purpose for disclosure under the DPPA. See Maracich, 133 S.Ct. at 2195-96. In doing so, it noted that:

If (b)(4) were read to permit disclosure of personal information whenever any connection between the protected information and a potential legal dispute could be shown, it would undermine in a substantial way the DPPA's purpose of protecting an individual's right to privacy in his or her motor vehicle records.
. . . .
An additional reason to hold that (b)(4) does not permit solicitation of clients is because the exception allows use of the most sensitive kind of information, including medical and disability history and Social Security numbers. To permit this highly personal information to be used in solicitation is so substantial an intrusion on privacy it must not be assumed, without language more clear and explicit, that Congress intended to exempt attorneys from DPPA liability in this regard.

Id. at 2200, 2202. However, Maracichis not dispositive because the Court did not address whether an individual has a constitutional right to privacy in driver's license record information. That issue was not before the Court, and the statements regarding privacy that the Court did make cannot be understood to refer to a constitutional right rather than to a statutory right.

While the Eighth Circuit has not ruled on this exact issue, it has determined that the disclosure of similar information is insufficient to state a claim for a violation of the constitutional right to privacy. In McCaslin v. Campbell, the court determined that the plaintiff had not asserted a constitutional violation despite allegations that her driver's license information, social security number, bank account numbers, criminal record, previous landlords, previous names, and personal references were disclosed without her consent. No. 95-4041, 1997 WL 148824, at *1 (8th Cir. Apr. 2, 1997). The court found that much of the information was public record and that " the remaining information did not involve the most intimate aspects of human affairs." Id. at *2. Therefore, the court affirmed the district court's dismissal of the plaintiff's claim under Rule 12(b)(6). Id. at *1; see also Cooksey, 289 F.3d at 516 (finding that disclosure of the fact that an individual was receiving psychological treatment for stress was " neither shockingly degrading [n]or egregiously humiliating" ); Eagle, 88 F.3d at 628 (explaining that " [b]ecause [the plaintiff] has no legitimate expectation of privacy in the contents of his criminal history file, [the court] cannot agree that the officers violated his constitutional right when they engaged in an unwarranted search of this material." ).

In this case, Plaintiff alleges a privacy interest in her driver's license information. Plaintiff claims that her address, color photograph, date of birth, weight, height, eye color, driver identification number, and driving record were improperly accessed. (Compl. ¶ 164 [Doc. No. 1].) With the exception of Plaintiff's driving record, all of this information is included

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on the face of a driver's license, and individuals show their driver's licenses to strangers on a daily basis. Moreover, much of this information can be obtained by looking at an individual or by reviewing public records. Thus, the disclosure of this information cannot be considered shockingly degrading or egregiously humiliating. Nor could Plaintiff, based on the public nature of this information, legitimately expect that it would remain confidential. Accordingly, as determined in Travis, Kiminski, and McCaslin, this information does not warrant constitutional protection because an individual does not have a legitimate expectation of privacy in it.

However, Plaintiff argues that, in addition to the information mentioned above, Minnesota driver's license records contain an individual's medical information and social security number. (Compl. ¶ 164 [Doc. No. 1].) Specifically, Plaintiff explains that the records include highly confidential medical information such as seizure, diabetes, and vision information, and that such information has long been recognized as protected. (See Pl.'s Resp. to Ramsey County at 17 [Doc. No. 57].)

Although the Court doubts whether this information could even create a recognizable privacy interest, Plaintiff's claim still fails because she does not allege that such specific medical information was obtained about her. In fact, she states that Defendants accessed her social security number and medical information merely " upon information and belief." (Compl. ¶ 164 [Doc. No. 1].) Rollins does not offer any allegations, facts, or affidavits to substantiate her " belief" that Defendants accessed her social security number and medical information.[4] Therefore, Rollins' Complaint fails to " raise a reasonable expectation that discovery will reveal evidence of [the claim]." See Twombly, 550 U.S. at 556.

As noted above, in Count III, Plaintiff also seeks to impose supervisory liability under § 1983 on the " entity" and " supervisor" Defendants for an alleged failure to monitor and enforce the rules or to train, supervise, and impose proper discipline. (See Compl. ¶ ¶ 352-74 [Doc. No. 1].) However, because Plaintiff has failed to state a claim for an underlying constitutional violation by any individual Defendant, Plaintiff has also failed to state a claim as to the entity and supervisor Defendants. See Brockinton v. City of Sherwood, Arkansas, 503 F.3d 667, 673 (8th Cir. 2007) (noting that a county sheriff could not be held individually liable under § 1983 on a supervisory theory where the allegations did not establish an underlying constitutional violation by the county deputy); McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005) ( " [I]n order for municipal liability to attach, individual liability first must be found on an underlying substantive claim." ). For the same reason, Plaintiff's claim in Count IV fails against the Commissioner Defendants and the DPS Does. (See Compl. ¶ ¶ 375-92 [Doc. No. 1].) Because Plaintiff has failed to state a claim for an underlying constitutional violation by any individual Defendant, Plaintiff failed to state a claim as to the Commissioner Defendants and the DPS Does. Therefore, to the extent that Plaintiff's § 1983 claims, as stated in Counts II, III, and IV of the Complaint, are based on an underlying constitutional violation, those claims are dismissed.

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c. Minnesota state law bases


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