Doe v. Luzerne County

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-3921
_____________

JANE DOE,
Appellant

v.

LUZERNE COUNTY; RYAN FOY, in his Individual
Capacity; BARRY STANKUS, in his Individual
Capacity,

_____________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 3-08-cv-01155
District Judge: The Honorable A. Richard Caputo

Argued September 13, 2011

Before: SLOVITER, SCIRICA, and SMITH,
Circuit Judges
 (Filed: October 12, 2011)

Cynthia L. Pollick (Argued)
The Employment Law Firm
363 Laurel Street
Pittston, PA 18640
Counsel for Appellant

Mark W. Bufalino (Argued)
John G. Dean
Paul A. Galante
Elliott Greenleaf & Dean
39 Public Square
Suite 1000
Wilkes-Barre, PA 18702
Counsel for Appellee

Marc Rotenberg
John Verdi (Argued)
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, DC 20009
Counsel for Amicus Appellant

________________

OPINION
2
 ________________

SMITH, Circuit Judge.

Appellant Jane Doe, a deputy sheriff in the Luzerne
County Sheriff‘s Department (the ―Department‖), brought
this action against appellees Luzerne County (the ―County‖),
Ryan Foy, who was a deputy chief for the Department at the
time of the events at issue, and Barry Stankus, who was the
sheriff of Luzerne County also at that time (collectively, the
County, Foy, and Stankus are ―County Defendants‖). Doe
sought remedies pursuant to 42 U.S.C. § 1983 and claimed,
among other things, that County Defendants violated both her
federal constitutional right to privacy under the Fourteenth
Amendment and her right to be free from unlawful searches
and seizures under the Fourth Amendment, and that the
County failed to properly train its employees. The District
Court granted the County Defendants‘ motion for summary
judgment, dismissing the case in its entirety. We will reverse
the District Court‘s order dismissing Doe‘s constitutional
right to privacy claim under the Fourteenth Amendment and
remand the case for further proceedings. We will affirm the
District Court‘s order in all other respects.

I. BACKGROUND

On September 27, 2007, the Department, which has
employed Doe as a deputy sheriff since 2002, instructed Doe
to serve a bench warrant on a resident in Wilkes-Barre,
3
Pennsylvania. Doe and her partner, Deputy Brian Szumski,
traveled to and entered the residence, finding it in disarray
with garbage and even the carcass of a dead cat on the floor.
Although they did not find the subject of the warrant, they
were soon to discover other unwelcome residents.

Upon exiting the residence, Doe noticed that there
were a multitude of fleas crawling on her and Szumski. The
officers radioed the Department‘s headquarters regarding the
flea encounter and asked for further instructions. After some
delay, the Department directed the officers to proceed to a
nearby Emergency Management Building (―EMA‖) and await
construction of a temporary decontamination shower. The
officers were told to stay inside their police cruiser until Chief
Deputy Arthur Bobbouine, a superior officer to both Doe and
Szumski, arrived at the EMA.

Approximately twenty minutes later, Bobbouine
arrived at the EMA along with Foy, who was also a superior
officer to both Doe and Szumski, and Deputies Erin Joyce
and Michael Patterson. Foy brought a video camera and
immediately began to film Doe and Szumski, who both
remained inside their parked vehicle with the windows up.
Doe requested to exit the vehicle because of the high
temperature and the fleas‘ continual biting. Bobbouine and
Foy ordered Doe and Szumski to remain in the police cruiser
to limit the spread of fleas. Foy continued to film the scene,
allegedly laughing at Doe and Szumski‘s plight and taunting
them. Doe testified at her deposition that she asked Foy to
stop filming on at least four specific occasions during the
events in question, but that he continued and told her at least
4
one time to ―shut up‖ because it was for ―training purposes.‖1
County Defendants, however, assert that Doe never requested
that Foy stop filming.

The EMA employees were unable to construct the
decontamination shower. Bobbouine therefore instructed Doe
and Szumski to drive to Mercy Hospital (the ―Hospital‖),
which was equipped with a decontamination facility.2 Once
at the Hospital, Szumski was taken inside and Doe was told to
wait in the police cruiser while Szumski underwent the
decontamination process. After approximately forty-five
minutes, Foy radioed Doe and directed her to remove her
boots and socks, place them in the trunk of the police car, and
proceed toward the hospital entrance. As Doe approached,
Foy exited the Hospital and walked toward her, filming all the
while. Doe testified that she again demanded that Foy stop
filming but that Foy refused and reiterated that he was filming

1
Foy testified that Bobbouine ordered him to create a training
video of the ―decontamination process.‖ Foy‘s explanation is, at
best, suspect. First, Bobbouine, Foy‘s superior, testified that he
did not know why Foy was filming. Second, Deputy Mandy
Leandri testified that, prior to Bobbouine and Foy leaving to meet
Doe and Szumski at the EMA, Bobbouine and Foy discussed how
they would tell everyone they were making a training video so that
no one would question why they were filming. Third, as will be
discussed in more detail infra, Foy uploaded the video and showed
it to other officers as a joke, not in the context of a training video.
Finally, no training video was ever produced from the footage Foy
shot that day. Thus, a reasonable jury could conclude that Foy‘s
―training video‖ explanation was a pretext to mask his misconduct.
2
Mercy Hospital is now Geisinger South Wilkes-Barre.
5
for ―training purposes.‖

Doe entered the Hospital and was met by Joyce, a
female deputy, who then led her to a large open showering
room (the ―Decontamination Area‖). Joyce did not follow
Doe inside, but stood in the doorway with the door opened
slightly so that she could read Doe instructions about the
decontamination process and how to apply special chemical
shampoo. Doe did not undress until Joyce finished the
instructions and closed the door completely (though the door
could not be locked because it contained no locking
mechanism). Doe then showered without incident.

After Doe completed her shower, she realized that
there were no towels in the Decontamination Area. There
was, however, a roll of thin paper of the type that typically
covers a doctor‘s examination table. Doe asserts that this
paper was semi-transparent or that Doe‘s wet body caused the
paper to become semi-transparent; County Defendants deny
both assertions. Through the closed door, Joyce told Doe to
wrap the hospital paper around her private areas so that Joyce
could enter the room and examine Doe to ensure that no fleas
remained. Once Doe had complied, Joyce entered, closed the
door behind her and began inspecting Doe for any surviving
fleas. At this point, Doe‘s back was facing the door; most of
her back, shoulders and legs were completely exposed, and
the thin paper, which could have been semi-transparent, was
wrapped around her buttocks and breasts.

While Joyce examined Doe for fleas, Bobbouine and
Foy, unbeknownst to the two female deputies, opened the
6
Decontamination Area‘s door approximately a foot and
observed Doe. Foy began filming again. After viewing Doe
for some unknown period of time, Bobbouine said, in
reference to a tattoo on Doe‘s back, ―What‘s that shit all over
your back?‖ Startled, Doe thought this meant that there were
fleas on her back, and she instinctively turned her head while
trying to brush fleas away. As she did so, she caught
Bobbouine and Foy out of the corner of her eye. Doe,
without turning around, yelled at Bobbouine and Foy to leave
the Decontamination Area. She then heard either Bobbouine
or Foy say, ―They are tattoos on her back. I wonder what
they say?‖ One of Doe‘s tattoos contains the initials of the
woman with whom Doe was in a relationship. Doe, again
without turning around, yelled at the men to leave the
Decontamination Area.

The parties dispute how much of Doe‘s body was
exposed to Bobbouine and Foy in the Decontamination Area.
County Defendants claim that only Doe‘s bare back,
shoulders, legs and arms were observed and filmed, and that
at no time were Doe‘s breasts or buttocks exposed in the
Decontamination Area. Doe alleges that there is evidence
demonstrating that her breasts and/or buttocks were exposed.
Doe asserts that an unknown individual was captured on
video stating that he could see her ―boobies‖ and that
somebody should grab something to ―cover [Doe] up.‖ Doe
testified that the outline of her buttocks was visible through
the wet paper, and that Bobbouine allegedly made a statement
captured on video that he ―could see [Doe‘s] ass.‖

Joyce closed the Decontamination Area‘s door, again
7
shielding Doe from Bobbouine and Foy. Joyce then
completed her examination of Doe, who was eventually
provided with hospital scrubs and transported to the police
station.

Later that day, Foy uploaded the video onto his work
computer and called several officers, both male and female,
into his office to view the footage. It is not clear what Foy
showed those congregated in his office. Female Deputy
Mandy Leandri testified that Foy displayed a still image of
Szumski‘s bare buttocks, which prompted Leandri to leave
Foy‘s office in disgust. Foy was unable to recall any details
about the viewing held in his office other than that Doe was
present. Doe, however, testified that she was not present at
the viewing and had gone home after the incident at the
Hospital. Foy saved several still images, as well as the video
of the day‘s events (collectively, these are the ―Doe Files‖), in
a public computer folder entitled, ―Brian‘s ass,‖ which Doe
testified could have been viewed by anyone who had access
to the Luzerne County network.

Sometime in April 2008, Leandri rediscovered the
―Brian‘s ass‖ folder and came across the Doe Files. Leandri
testified that she opened one photo of Doe — a close-up of
Doe‘s back showing her tattoo — which Leandri showed to
another female deputy and recalled that the two made fun of
Doe for tattooing her girlfriend‘s initials on to her back.
Leandri explained that she was ―in shock that [Doe] would
get someone‘s initials tattooed‖ on her. Leandri did not,
however, testify that she was surprised that Doe had a
girlfriend, nor is there any evidence in the record that, as a
8
result of the September 27 events, anyone learned for the first
time that Doe had a girlfriend.

Leandri notified her superior, Sheriff Michael
Savokinas, of the Doe Files, and he oversaw removal of the
files. At the time of its removal, the ―Brian‘s ass‖ folder
contained five still photos of Doe and Szumski and an edited
video clip from the events at issue.3 Only two of the photos
depicted Doe: one was the close-up of her bare back and the
other showed Doe‘s hips, bare back, and bare shoulders. In
both photos, the outline of Doe‘s buttocks — covered only by
thin, wet hospital paper — was visible.

In June of 2008, Doe filed a complaint against the
County as a municipal defendant and against defendants Foy
and Stankus4 in their individual capacities, alleging two
counts. Count One asserted violations of the Fourth
Amendment‘s right to be free from unreasonable searches and
seizures, the Fourteenth Amendment‘s right to privacy and
comparable rights arising under Pennsylvania law. Count
Two alleged a failure to train claim against the County under
42 U.S.C. § 1983.

On August 31, 2010, the District Court granted
summary judgment in favor of County Defendants,
dismissing Doe‘s case in its entirety. The District Court

3
Doe further testified that Foy stopped recording at certain points,
and that therefore the video did not include certain events and
conversations that occurred on the day in question.
4
Stankus was the Sheriff of Luzerne County in September 2007.
9
stated that, ―[a]lthough the supposed training video was likely
ill-conceived and definitely poorly executed,‖ the ―case does
not fall within the zone of privacy protected by the Fourteenth
Amendment.‖ The District Court further determined that the
alleged search — namely Foy‘s observation and filming of
Doe‘s partially nude body in the Decontamination Area —
fell within the ―special needs‖ exception to the Fourth
Amendment. Finally, the District Court rejected the failure to
train claim because it found that there was no ―ultimate
constitutional injury‖ and so there could not be any claim for
failure to train.

Doe appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. §
1331, which grants the district courts ―original jurisdiction of
all civil actions arising under the Constitution, laws, or
treaties of the United States.‖ We have final-order
jurisdiction under 28 U.S.C. § 1291.

We review the District Court‘s disposition of a
summary judgment motion de novo, applying the same
standard as the District Court. Pichler v. UNITE, 542 F.3d
380, 385 (3d Cir. 2008) (citing Marten v. Godwin, 499 F.3d
290, 295 (3d Cir. 2007)). ―The court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.‖ Fed. R. Civ. P. 56(a). All inferences
must be viewed in the light most favorable to the nonmoving
10
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).

―A disputed fact is ‗material‘ if it would affect the
outcome of the suit as determined by the substantive law.‖
Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.
1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). The nonmoving party cannot establish a
genuine dispute as to a material fact by pointing to
unsupported allegations in the pleadings. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). To defeat a motion for
summary judgment, the nonmoving party must raise more
than ―some metaphysical doubt as to the material facts,‖
Matsushita, 475 U.S. at 586, and the court must determine
that ―a fair-minded jury could return a verdict for the
[nonmoving party] on the evidence presented.‖ Anderson,
477 U.S. at 252. ―The court may not, however, weigh the
evidence or make credibility determinations‖ because ―these
tasks are left for the fact finder.‖ Pichler, 542 F.3d at 386
(citations and quotation marks omitted).

11
 III. DISCUSSION

A. CONSTITUTIONAL RIGHT TO PRIVACY UNDER THE
FOURTEENTH AMENDMENT

―The United States Constitution does not mention an
explicit right to privacy and the United States Supreme Court
has never proclaimed that such a generalized right exists.‖
C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 178 (3d Cir.
2005). But see Sterling v. Borough of Minersville, 232 F.3d
190, 193 (3d Cir. 2000) (stating that the Supreme Court
―acknowledged the individual‘s constitutional right to
privacy‖ in Griswold v. Connecticut, 381 U.S. 479 (1965)).
The Supreme Court, however, has found certain constitutional
―zones of privacy.‖ C.N., 430 F.3d at 178 (citing Roe v.
Wade, 410 U.S. 113, 152–53 (1973)). From these zones of
privacy, we have articulated two types of privacy interests
rooted in the Fourteenth Amendment. Nunez v. Pachman,
578 F.3d 228, 231 n.7 (3d Cir. 2009); see also Malleus v.
George, 641 F.3d 560, 564 (3d Cir. 2011); C.N., 430 F.3d at
178. The first privacy interest is the ―individual interest in
avoiding disclosure of personal matters,‖ and the second is
the ―interest in independence in making certain kinds of
important decisions.‖ C.N., 430 F.3d at 178; see also
Malleus, 641 F.3d at 564; Hedges v. Musco, 204 F.3d 109,
121 (3d Cir. 2000). The first privacy interest is at issue in this
matter.

―‗The right not to have intimate facts concerning one‘s
life disclosed without one‘s consent‘ is ‗a venerable [right]
whose constitutional significance we have recognized in the
12
past.‘‖ C.N., 430 F.3d at 179 (quoting Bartnicki v. Vopper,
200 F.3d 109, 122 (3d Cir. 1999)). Justice Brandeis, in
dissent, famously referred to this as ―the right to be let alone.‖
Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting).

The touchstone of constitutional privacy protection is
whether the information at issue is ―within an individual‘s
reasonable expectations of confidentiality.‖ Malleus, 641
F.3d at 564; see also C.N., 430 F.3d at 179; Fraternal Order
of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 112
(3d Cir. 1987) (―Fraternal Order of Police‖). The more
intimate or personal the information, the more reasonable the
expectation is that it will remain confidential. Fraternal
Order of Police, 812 F.2d at 112-13 (citing United States v.
Westinghouse Electric Corp., 638 F.2d 570, 577 & n.5 (3d
Cir. 1980)); see also Malleus, 641 F.3d at 564; C.N., 430 F.3d
at 179. Indeed, the ―federal constitution . . . protects against
public disclosure [of] only highly personal matters
representing the most intimate aspects of human affairs,‖
thereby shielding from public scrutiny ―only that information
which involves deeply rooted notions of fundamental
personal interests derived from the Constitution.‖ Nunez, 578
F.3d at 232 (emphasis omitted) (citation and quotation marks
omitted).

We have found the following types of information to
be protected: a private employee‘s medical information that
was sought by the government; medical, financial and
behavioral information relevant to a police investigator; a
public employee‘s prescription record; a minor student‘s
13
pregnancy status; sexual orientation; and an inmate‘s HIV-
positive status. Malleus, 641 F.3d at 565 (citing cases and
explaining that information encompassed by the
constitutional right to privacy may be separated into
categories reflecting sexual, medical and some financial
information).

Although the issue of whether one may have a
constitutionally protected privacy interest in his or her
partially clothed body is a matter of first impression in this
circuit, other circuits — including the Second, Sixth and
Ninth Circuits — have held that such a right exists. See, e.g.,
Poe v. Leonard, 282 F.3d 123, 136-39 (2d Cir. 2002) (finding
that plaintiff, a female civilian who was participating in a
police training video, alleged sufficient facts to raise a triable
issue of whether her constitutional right to privacy was
violated where the male police officer surreptitiously filmed
her in the dressing room while topless and without a bra);
York v. Story, 324 F.2d 450, 454-56 (9th Cir. 1963) (finding
that the plaintiff properly stated a claim for a violation of her
constitutional right to privacy where she alleged that, while
reporting a sexual assault, a male police officer deceived her
into permitting him to photograph her genitals and exposed
breasts under the pretext of an investigation), cert. denied,
376 U.S. 939 (1964); Brannum v. Overton Cnty. Sch. Bd., 516
F.3d 489, 497-98 (6th Cir. 2008) (finding a privacy violation
where a middle school‘s surveillance cameras recorded the
plaintiff students in their undergarments while in the school

14
locker room).5

Privacy claims under the Fourteenth Amendment
necessarily require fact-intensive and context-specific
analyses, and unfortunately, bright lines generally cannot be
drawn. The difficulty in drawing a bright line is evident as
we are not aware of any court of appeals that has adopted
either a requirement that certain anatomical areas of one‘s
body, such as genitalia, must have been exposed for that
person to maintain a privacy claim under the Fourteenth
Amendment or a rule that a nonconsensual exposure of
certain anatomical areas constitutes a per se violation. See,
e.g., Poe, 282 F.3d at 136-39 (conducting a context-specific
analysis); York, 324 F.2d at 454-56 (same); Brannum, 516
F.3d at 493-500 (same but in the Fourth Amendment context).
We likewise refuse to draw bright lines based on anatomical
parts or regions. Accordingly, we must analyze the specific
circumstances under which the alleged violation occurred.

5
Based on existing precedent in the Sixth Circuit, Brannum found
that the constitutional right to privacy was protected by the Fourth
Amendment‘s guarantee against unreasonable searches and
seizures. 516 F.3d at 494. Brannum further recognized that other
circuits have found that the ―same privacy right is located in the
Due Process Clause [of the Fourteenth Amendment].‖ Id. Thus,
while the Sixth Circuit may locate the right to privacy in the Fourth
Amendment — and we, as well as the Second and Ninth Circuits,
locate this right within the Fourteenth Amendment — the contours
of the right appear to be the same. See id. (referring to ―the same
privacy right‖ that other circuits find within the Fourteenth
Amendment).
15
 We conclude that Doe had a reasonable expectation of
privacy while in the Decontamination Area, particularly while
in the presence of members of the opposite sex.6 The
Decontamination Area is a large showering facility, and Doe
permitted only Joyce, a female deputy, to enter for the
purpose of combing Doe‘s hair in an effort to remove any
remaining fleas. Upon entering the Decontamination Area,
Joyce closed the heavy wooden door to shield Doe‘s privacy
but could not lock it because the door had no locking
mechanism. The record, viewed in the light most favorable to
Doe, does not support the assertion that Doe expressly or
implicitly consented to Bobbouine and Foy‘s opening the
door or filming the events inside the Decontamination Area.
In fact, Doe testified that she was unaware that Bobbouine
and Foy were observing her until Bobbouine spoke, and that
she repeatedly asked Bobbouine and Foy to leave the
Decontamination Area to no avail. Joyce then closed the
Decontamination Area‘s door to again shield Doe‘s privacy.
Doe clearly had a reasonable expectation of privacy while in
the Decontamination Area under these circumstances.7 Our

6
In addition to the exposure of Doe‘s body in the Decontamination
Area, Doe also asserts that Foy‘s filming of the tattoo of
someone‘s initials on her back led to the discovery of the private
and intimate fact that she is in a lesbianic relationship. We note
that initials of a person generally are not indicative of a person‘s
gender. Furthermore, such an assertion is belied by the record,
which contains no evidence that, as a result of the September 27
events, anyone learned for the first time that Doe had a girlfriend.
7
Davis v. Bucher, 853 F.2d 718 (9th Cir. 1988), a case relied on
extensively by County Defendants for the proposition that Doe‘s
16
analysis must then turn to whether Doe‘s exposure meets the
lofty constitutional standard of the ―most intimate aspects of
human affairs‖ that involve ―deeply rooted notions of
fundamental personal interests.‖ Nunez, 578 F.3d at 232.
Because material facts remain in dispute, we are unable to
answer that question at this time.

A dispute of material fact exists as to which of Doe‘s
body parts were exposed to members of the opposite sex
and/or filmed while she was in the Decontamination Area.
County Defendants assert that only Doe‘s back, shoulders
arms and legs were exposed, and that at no time were Doe‘s
breasts or buttocks exposed. Doe has presented evidence,
however, that her breasts and/or buttocks may have been
exposed. Doe asserts that an unknown individual captured on
the videotape allegedly stated that he could see Doe‘s
―boobies‖ and told others to ―cover [Doe] up.‖ Doe also

claims are not of constitutional significance, is inapposite. In
Davis, one of the plaintiffs was a prisoner who brought
photographs of his naked wife into prison. A guard took the
photographs and displayed them to two inmates. Id. at 719. The
Ninth Circuit held that the prisoner‘s alleged injury was not one of
constitutional magnitude because the prisoner ―imported the
photos into the prison environment, a habitat presenting an
inherent risk of disclosure and a cognizable diminution in [the
prisoner‘s] reasonable expectations of privacy.‖ Id. at 720. Doe,
unlike the prisoner in Bucher, had a higher expectation of privacy
while she was showering and partially clothed in the
Decontamination Area.

17
presented evidence to support her claim that the paper sheet
she used to cover her breasts and buttocks was ―see-through.‖
This includes: an alleged statement made by Bobbouine and
captured on video that he ―could see [Doe‘s] ass‖; Doe‘s
testimony that the outline of her buttocks was visible through
the wet paper; an alleged statement from an unknown
individual captured on video stating that Doe had a ―big rip in
her ass‖ (it is unclear from the record whether this comment
referred to Doe‘s body or the paper covering her body); and a
statement from an unknown individual that Doe‘s tan lines
were visible. Doe, as the nonmovant, is entitled to have all
inferences viewed in the light most favorable to her. See,
e.g., Matsushita Elec. Indus. Co., 475 U.S. at 587. Under the
circumstances before us, the issues of whether Doe‘s breasts
or buttocks were exposed would affect the outcome of the suit
and thereby are material.

The analysis is not complete, however, because a
person‘s right to avoid disclosure of personal matters is not
absolute. See C.N., 430 F.3d at 179; Fraternal Order of
Police, 812 F.2d at 110. ―Disclosure may be required if the
government interest in disclosure outweighs the individual‘s
privacy interest.‖ Fraternal Order of Police, 812 F.2d at 110
(citing Trade Waste Mgmt. Ass’n v. Hughey, 780 F.2d 221,
234 (3d Cir. 1985); Westinghouse Electric, 638 F.2d at 577).
When making such a determination, we apply a ―flexible
balancing test‖ and consider the following factors:

[1] the type of record requested, [2] the
information it does or might contain, [3] the
potential for harm in any subsequent
18
 nonconsensual disclosure, [4] the injury from
disclosure to the relationship in which the
record was generated, [5] the adequacy of
safeguards to prevent unauthorized disclosure,
[6] the degree of need for access, and [7]
whether there is an express statutory mandate,
articulated public policy, or other recognizable
public interest militating toward access.

C.N., 430 F.3d at 179-180 (quoting Westinghouse Electric,
638 F.2d at 578); see also Fraternal Order of Police, 812
F.2d at 110-11.

On the record before us, the aforementioned factors
overwhelmingly weigh in Doe‘s favor. The type of records at
issue include photographs of Doe while she is partially
dressed and an edited video of Doe that may include images
of, among other things, Doe‘s exposed breasts and/or
buttocks. The potential harm of nonconsensual disclosure is
exacerbated by the existence of the Internet, where one can
upload image and video files and irretrievably share them
with the world in a matter of moments. Doe‘s alleged harm
could be aggravated by the context of the disclosure, most
notably the facts that the video of the events was shown to
others within the workplace and that the alleged violations
involved superior officers abusing their authority. The
adequacy of safeguards to prevent unauthorized disclosure
also favors Doe because there is evidence that Foy saved the
Doe Files in a public computer folder, which Doe testified
could have been viewed by anyone with access to the Luzerne
County network.
19
 Finally, although factors 6 and 7 could arguably favor
County Defendants based on their alleged need to create a
training video of the decontamination process generally, it
was not necessary for Bobbouine and Foy to observe or film
Doe while she was partially clothed. Hospital scrubs were
available but were not provided to Doe until after Bobbouine
and Foy‘s alleged misbehavior in the Decontamination Area.8

Accordingly, dismissing Doe‘s Fourteenth
Amendment claim was error at this stage, and we will reverse
and remand this matter to the District Court for further
proceedings.

B. SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT

The Fourth Amendment protects the ―right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.‖ U.S.
Const. amend. IV. The phrase ―searches and seizures‖
connotes that the Fourth Amendment regulates conduct that is
―somehow designed to elicit a benefit for the government in
an investigatory or, more broadly, an administrative
capacity.‖ United States v. Attson, 900 F.2d 1427, 1429 (9th
Cir. 1990) (holding that a physician employed by the
government who drew a blood sample from the defendant for
medical, not investigatory, purposes did not conduct a
―search‖ under the Fourth Amendment). Similarly, the
Supreme Court has stated that the Fourth Amendment applies

8
County Defendants have not asserted a qualified immunity
defense.
20
to governmental conduct whether ―the government‘s
motivation is to investigate violations of criminal laws or
breaches of other statutory or regulatory standards.‖ New
Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (citations and
quotation marks omitted); see also Camara v. Mun. Court of
S.F., 387 U.S. 523, 534 (1967) (applying the Fourth
Amendment to a governmental inspection program).

In Poe v. Leonard, a police officer who invited
plaintiff to film a training video for the police academy
surreptitiously videotaped plaintiff in a state of partial dress
while in her changing room. 282 F.3d 123, 136-37 (2d Cir.
2002). The Second Circuit found that this was not a search
under the Fourth Amendment because the officer‘s
surreptitious filming during his assigned duties was for his
―personal reasons‖ and ―occurred outside of a criminal
investigation or other form of governmental investigation or
activity.‖ See id.

Here, Doe asserts that County Defendants, in violation
of the Fourth Amendment, ―unlawfully searched and seized
video images‖ of her in the Decontamination Area. Foy‘s
conduct of recording and disseminating the video and images
of Doe was not a search or seizure under the Fourth
Amendment. At oral argument, Doe‘s counsel conceded that
Foy filmed Doe for personal interest, and that Foy did not
film Doe in furtherance of any governmental investigation.
Because Foy acted for personal reasons and outside the scope
of a governmental investigation, his actions do not implicate
the Fourth Amendment. Poe, 282 F.3d at 136-37.
Accordingly, we will affirm the District Court‘s dismissal of
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Doe‘s Fourth Amendment claim.9

C. FAILURE TO TRAIN

Under 42 U.S.C. § 1983 (―§ 1983‖), a municipality
may be liable for the failure to train its employees only where
that failure amounts to ―deliberate indifference to the
[constitutional] rights of persons with whom the police come
in contact.‖ City of Canton v. Harris, 489 U.S. 378, 388
(1989); see also Woloszyn v. County of Lawrence, 396 F.3d
314, 324 (3d Cir. 2005). In other words, a municipality can
only be liable under § 1983 where the failure to train
demonstrates a ―deliberate‖ or ―conscious‖ choice by the
municipality. Woloszyn, 396 F.3d at 324 (citing City of
Canton, 489 U.S. at 389). To determine whether a
municipality‘s alleged failure to train its employees amounted
to a deliberate or conscious choice, it must be shown that ―(1)
municipal policymakers know that employees will confront a
particular situation; (2) the situation involves a difficult
choice or a history of employees mishandling; and (3) the
wrong choice by an employee will frequently cause
deprivation of constitutional rights.‖ Carter v. City of Phila.,
181 F.3d 339, 357 (3d Cir. 1999) (citing Walker v. N.Y.C.,
974 F.2d 293, 297-98 (2d Cir. 1992)).

―Moreover, for liability to attach in this circumstance

9
Because we hold that there was no search or seizure implicating
the Fourth Amendment, there is no need to consider whether the
―special needs‖ exception to the Fourth Amendment, which the
District Court relied on, is applicable under these circumstances.
22
the identified deficiency in a city‘s training program must be
closely related to the ultimate injury,‖ City of Canton, 489
U.S. at 391, meaning that the plaintiff must ―prove that the
deficiency in training actually caused [the constitutional
violation at issue].‖ Id.; see also Woloszyn, 396 F.3d at 325.

Here, the record does not support Doe‘s claim that the
County‘s alleged failure to train amounted to deliberate
indifference towards Doe‘s constitutional rights. The record
does not demonstrate that any of the County‘s policymakers
knew that its employees would likely confront a situation
implicating the violation of one‘s right to privacy when
videotaping certain activities. Similarly, the record is devoid
of any evidence that there has been a history of County
employees mishandling the production of training videos or
videotaping in general; indeed, there is no evidence that there
has ever been another incident like the one Doe experienced.
See City of Oklahoma v. Tuttle, 471 U.S. 808, 823–24 (1985)
(stating that a ―single incident of unconstitutional activity‖ is
generally insufficient to make out a claim unless there is
proof that the incident ―can be attributed to a municipal
policymaker‖). Further, it cannot be said that a wrong choice
by a County employee while producing a training video or
videotaping in general will frequently cause a deprivation of
one‘s constitutional right to privacy. See supra Section III.A
(stating that the constitutional right to privacy is limited and
protects public disclosure of only ―highly personal matters
representing the most intimate aspects of human affairs‖)
(citing Nunez, 578 F.3d at 231-32). Consequently, any
alleged failure by the County to train its employees did not
amount to deliberate indifference towards Doe‘s
23
constitutional rights.

In any event, Doe has not produced sufficient evidence
demonstrating that a deficiency in the County‘s training
program actually caused the alleged violation of her
constitutional privacy right. Accordingly, we will affirm the
District Court‘s dismissal of Doe‘s failure to train claim
against the County.

IV. CONCLUSION

For the reasons set forth above, we will reverse the
District Court‘s order dismissing Doe‘s constitutional right to
privacy claim under the Fourteenth Amendment and remand
the case for further proceedings. We will affirm the District
Court‘s order in all other respects.

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