RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0083p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
SAMUEL JOSEPH WURZELBACHER,
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No. 10-4009
v.
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HELEN E. JONES-KELLEY; FRED WILLIAMS;
Defendants-Appellees. -
DOUG THOMPSON,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 09-00162—Algenon L. Marbley, District Judge.
Argued: March 7, 2012
Decided and Filed: March 27, 2012
Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.
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COUNSEL
ARGUED: James F. Peterson, JUDICIAL WATCH, INC., Washington, D.C., for
Appellant. Anne Berry Strait, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellees. ON BRIEF: James F. Peterson, Paul J. Orfanedes,
JUDICIAL WATCH, INC., Washington, D.C., David R. Langdon, Joshua B. Bolinger,
Cincinnati, Ohio, for Appellant. Anne Berry Strait, Rebecca L. Thomas, Peggy W.
Corn, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellees.
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OPINION
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GRIFFIN, Circuit Judge. Plaintiff Samuel Joseph Wurzelbacher appeals the
dismissal of his 42 U.S.C. § 1983 civil rights action alleging First Amendment retaliation
and violation of his informational right to privacy. We affirm.
1
No. 10-4009 Wurzelbacher v. Jones-Kelley, et al. Page 2
I.
The undisputed facts, as summarized by the district court, are as follows:
[Wurzelbacher] is an individual and resident of the State of Ohio. He
was trained as a plumber by the United States Air Force, and, until
recently, was employed by a small plumbing business near Toledo, Ohio.
Defendant Helen Jones-Kelley was the Director of the Ohio Department
of Job and Family Services (“ODJFS”). Defendant Fred Williams was
the Assistant Director of ODJFS. Defendant Doug Thompson was the
Deputy Director of Child Support within ODJFS.
On October 12, 2008, President Barack Obama, then Senator and
presidential candidate, appeared on [Wurzelbacher]’s street while
campaigning. [Wurzelbacher] joined the crowd and asked several
questions of President Obama related to the impact that the President’s
tax plan would have on [Wurzelbacher]’s ability to purchase a small
business. The questions posed by [Wurzelbacher] were recorded by the
media, and replayed later on stations across the country. After his
exchange with President Obama, [Wurzelbacher] received and accepted
numerous requests from the media to speak about his views of the
President, and, in those appearances, criticized President Obama’s
policies. During the third presidential debate, Senator John McCain
referred to [Wurzelbacher]’s questions, and referred to [Wurzelbacher]
as “Joe the Plumber.” After the debate, [Wurzelbacher] continued to
appear in the national media.
At all times relevant to [Wurzelbacher]’s claims, [d]efendants were the
three highest-ranking officials at ODJFS. The ODJFS administers state
programs including child support enforcement, the Temporary Aid to
Needy Families (“TANF”) cash assistance program, and unemployment
compensation. As part of these programs, ODJFS maintains confidential
databases including: the Support Enforcement Tracking System
(“SETS”) for child support enforcement; the Client Registry Information
System Enhanced (“CRIS-E”) for records under the TANF program; and
the Ohio Job Insurance (“OJI”) database, which contains unemployment
benefit records. The Ohio Revised Code sections 5101.26 through
5101.30, and the Ohio Administrative Code Chapter 5101, section
1-1-03, govern the confidentiality and disclosure rules of these databases.
[Wurzelbacher] alleges that ODJFS personnel are only permitted to
access the databases to carry out official agency business, and that prior
to being permitted to access the databases, ODJFS employees are trained
in areas related to confidentiality, safeguarding guidelines, and security
procedures.
No. 10-4009 Wurzelbacher v. Jones-Kelley, et al. Page 3
[Wurzelbacher] alleges that on October 16, 2008, four days after [his]
interaction with President Obama, [d]efendants had a meeting at which
they discussed “Joe the Plumber.” Defendant Jones-Kelley then
authorized searches related to [Wurzelbacher] on the SETS, CRIS-E, and
OJI databases. After the meeting, [d]efendant Thompson directed an
agency employee to conduct an inquiry regarding [Wurzelbacher] in the
SETS database, and [d]efendant Williams directed an agency employee
to conduct a search related to [Wurzelbacher] in the CRIS-E database.
The agency employee who searched the CRIS-E database then contacted
another employee to search the OJI database. The [c]omplaint alleges
that all three searches took place on October 16, 2008, that these searches
were not related to any official agency business, and that [d]efendants
authorized and directed the searches for the purpose of retrieving
information on [Wurzelbacher] because of [his] interaction with
President Obama and his subsequent media appearances.
Defendants were supporters of President Obama’s campaign, and
[d]efendant Jones-Kelley donated to the President’s campaign, was a
fundraiser, and volunteered to arrange a campaign event for First Lady
Michelle Obama.
[Wurzelbacher] alleges that after the [d]efendants authorized and
conducted searches in the databases, the Office of the Ohio Inspector
General (“OIG”) conducted an investigation and found “no legitimate
agency function or purpose for checking on [Wurzelbacher’s] name
through SETS, CRIS-E, and OJI or for authorizing those searches.”
(Compl. at 30.) The OIG allegedly specifically found that: [d]efendant
Jones-Kelley’s authorization was not appropriate and that she committed
a wrongful act by authorizing the searches; [d]efendant Thompson
instructed an agency employee to send an email to another agency
official telling that official that the search was for an agency purpose; and
that the email was an attempt to deceive as there was no agency purpose.
Separately from the inquiry as to the search of [Wurzelbacher]’s name,
the OIG allegedly found that [d]efendant Jones-Kelley used state
resources to engage in political activity for President Obama’s campaign,
and that those political activities were an inappropriate use of state
resources. After the OIG report was issue[d], Ohio Governor Ted
Strickland suspended [d]efendants from their positions. Allegedly,
[d]efendant Jones-Kelley resigned her position prior to the end of her
suspension, [d]efendant Williams resigned effective January 31, 2009,
and [d]efendant Thompson was terminated from his position prior to the
end of his suspension.
Wurzelbacher v. Jones-Kelley, 728 F. Supp. 2d 928, 930-31 (S.D. Ohio 2010).
No. 10-4009 Wurzelbacher v. Jones-Kelley, et al. Page 4
Wurzelbacher filed his complaint on March 5, 2009, alleging First Amendment
retaliation and violation of his privacy rights. Thereafter, defendants moved for
judgment on the pleadings, which was granted on August 4, 2010. This timely appeal
followed.
II.
We review a district court’s grant of judgment on the pleadings under Federal
Rule of Civil Procedure 12(c) using the same de novo standard of review applicable to
orders of dismissal under Rule 12(b)(6). Tucker v. Middleburg-Legacy Place, LLC,
539 F.3d 545, 549 (6th Cir. 2008). “For purposes of a motion for judgment on the
pleadings, all well-pleaded material allegations of the pleadings of the opposing party
must be taken as true, and the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.” Id. (internal quotation marks and citation
omitted).
Under 42 U.S.C. § 1983, an individual may bring a private cause of action
against anyone who, under color of state law, deprives a person of rights, privileges, or
immunities secured by the Constitution or conferred by federal statute. Blessing v.
Freestone, 520 U.S. 329, 340 (1997); Maine v. Thiboutot, 448 U.S. 1, 4 (1980). In this
case, Wurzelbacher alleges violations of his First and Fourteenth Amendment rights.
We address each claim below.
III.
Wurzelbacher asserts that defendants conducted improper database searches in
retaliation for his protected speech of asking a question of a presidential candidate. In
order to adequately plead a First Amendment retaliation claim, a plaintiff must allege:
(1) the plaintiff engaged in constitutionally protected conduct; (2) an
adverse action was taken against the plaintiff that would deter a person
of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s
protected conduct.
No. 10-4009 Wurzelbacher v. Jones-Kelley, et al. Page 5
Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005) (citing Thaddeus-X v. Blatter, 175
F.3d 378, 394 (6th Cir. 1999) (en banc)). In this case, the district court held that
Wurzelbacher failed to allege a sufficient “adverse action” to survive defendants’ motion
for judgment on the pleadings. We agree.
“The term ‘adverse action’ arose in the employment context and has traditionally
referred to actions such as ‘discharge, demotions, refusal to [hire], nonrenewal of
contracts, and failure to promote.’” Fritz v. Charter Twp. of Comstock, 592 F.3d 718,
724 (6th Cir. 2010) (quoting Thaddeus-X, 175 F.3d at 396). In the First Amendment
context, however, we have held that “any action that would deter a person of ordinary
firmness from exercising protected conduct will [constitute a sufficient adverse action],
which may include harassment or publicizing facts damaging to a person’s reputation.”
Id. Whether an alleged adverse action is sufficient to deter a person of ordinary firmness
is generally a question of fact. Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002).
Nevertheless, when a plaintiff’s alleged adverse action is “inconsequential,” resulting
in nothing more than a “de minimis injury,” the claim is properly dismissed as a matter
of law. Id. at 603, 606. Indeed, it “trivialize[s] the First Amendment to allow plaintiffs
to bring . . . claims for any adverse action[,] no matter how minor.” Id. at 603 (internal
quotation marks and citation omitted) (emphasis in original).
In this case, we hold that the adverse action pleaded by Wurzelbacher is
insufficient to create a cause of action. He asserts that defendants, without his
knowledge, performed several improper database searches under his name. However,
the complaint contains no information regarding what, if any, information was
discovered. Moreover, if any information was obtained, it was never publicly disclosed.
See Brown v. Crowley, 312 F.3d 782, 801 (6th Cir. 2002) (“Where, as here, a challenged
action has no consequences whatsoever, either immediate or long-term, it ineluctably
follows that such an action is ‘inconsequential.’”). Wurzelbacher did not suffer a threat
to his economic livelihood, Fritz, 592 F.3d at 728; was not defamed, id. at 726; did not
endure a search or seizure of property, Bell, 308 F.3d at 604-05; and did not experience
the public disclosure of intimate or embarrassing information, Bloch v. Ribar, 156 F.3d
No. 10-4009 Wurzelbacher v. Jones-Kelley, et al. Page 6
673, 681 (6th Cir. 1998). In addition, Wurzelbacher was not threatened with a
continuing governmental investigation, and he does not allege that defendants’ actions
in fact caused a “chill” of his First Amendment rights. Rather, he alleges that the
challenged database searches were all conducted and completed on or about October 16,
2008. See Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 375 (6th Cir.
2011) (“The mere presence of an intelligence data-gathering activity does not give rise
to constitutional liability.”) (internal quotation marks and citation omitted).
Wurzelbacher does allege that his knowledge of the improper database searches
caused him to suffer “emotional distress, harassment, personal humiliation, and
embarrassment.” However, these allegations are too generalized to withstand judgment
on the pleadings. See Mezibov, 411 F.3d at 722 (dismissing a First Amendment
retaliation claim when allegations of “emotional anguish and distress” were insufficient
to establish the requisite level of “specific or concret[e] personal injury”) (internal
quotation marks and citation omitted); Mattox v. City of Forest Park, 183 F.3d 515, 523
(6th Cir. 1999) (“[Plaintiff] offers only generalized statements about the effect on her
character and reputation[.] . . . Nowhere does she attempt to concretize her personal
injury.”).
Moreover, while we have held that embarrassment and humiliation may be
sufficient to establish a First Amendment retaliation claim, this holding was made in the
context of the public disclosure of intimate information regarding a rape. Bloch, 156
F.3d at 676. Indeed, not all allegations of emotional injury are sufficient to establish
First Amendment retaliation. In Mattox, the plaintiff alleged First Amendment
retaliation when a published report disclosed private information regarding a “traumatic
childhood incident.” 183 F.3d at 522. In addressing this claim, we held that the
disclosure was insufficiently adverse to establish First Amendment retaliation, despite
the fact that the plaintiff alleged “ridicule, contempt, shame, and disgrace.” Id. at 523.
While not minimizing “any embarrassment [the plaintiff] may have suffered,” we held
that the disclosure of the childhood incident did not rise to the same “level” as the
disclosure in Bloch, which involved “humiliating details” regarding a rape. Id.
No. 10-4009 Wurzelbacher v. Jones-Kelley, et al. Page 7
In the present case, the allegations are even less severe than those in Mattox
because information, if any, discovered by defendants was never disclosed. Indeed,
Wurzelbacher’s alleged emotional injuries stem from the mere fact that fruitless database
searches were conducted. Accordingly, we hold this alleged adverse action to be
“inconsequential” as a matter of law. See McComas v. Bd. of Educ., Rock Hill Local
Sch. Dist., 422 F. App’x 462, 469 (6th Cir. 2011) (holding that a public statement was
“not sufficiently embarrassing to constitute an adverse action”); Reynolds-Bey v. Harris,
428 F. App’x 493, 503-04 (6th Cir. 2011) (noting that a single search of a prisoner’s cell
is not sufficiently severe to constitute an adverse action); Mills v. Williams, 276 F. App’x
417, 418-19 (6th Cir. 2008) (holding that a job transfer was not sufficiently severe to
constitute an adverse action); Poppy v. City of Willoughby Hills, 96 F. App’x 292, 295
(6th Cir. 2004) (“Poppy fails to explain how conduct such as . . . reviewing her time
sheets, requesting keys to her office to inspect records kept there, or installing a security
camera in the hall outside her office adversely affected her employment and thereby
deterred her from exercising her rights under the First Amendment.”); Mezibov, 411 F.3d
at 722 (“[A]ny harm to Mezibov . . . is too minimal to be constitutionally cognizable.”).
Under the circumstances alleged in the present case, we conclude that “a person
of ordinary firmness” would not be deterred or chilled. Our conclusion is supported by
the fact that Wurzelbacher was not deterred or chilled in the exercise of his First
Amendment rights as a result of defendants’ wrongful conduct. Accordingly, for the
reasons detailed above, the district court correctly dismissed this claim for failure to
allege a sufficient adverse action.
IV.
Wurzelbacher next asserts the violation of his Fourteenth Amendment privacy
rights. Upon review, we hold that this claim was also properly dismissed.
As we have previously explained:
Two types of interests have been identified by the Supreme Court as
protected by the right to privacy that is rooted in the substantive due
process protections of the Fourteenth Amendment. One is the interest in
No. 10-4009 Wurzelbacher v. Jones-Kelley, et al. Page 8
“independence in making certain kinds of important decisions.” Whalen
v. Roe, 429 U.S. 589, 599-600 & n.26, 97 S. Ct. 869, 51 L. Ed. 2d 64
(1977) (noting that these decisions have been characterized as dealing
with “matters relating to procreation, marriage, contraception, family
relationships, and child rearing and education” (quoting Paul v. Davis,
424 U.S. 693, 713, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976))). The other
type of privacy interest applicable to individuals is the “interest in
avoiding disclosure of personal matters.” Id. at 599, 603-04, 97 S. Ct.
869 (recognizing that a statute requiring that the state be provided with
a copy of certain drug prescriptions implicated the individual’s interest
in non-disclosure, but upholding the law because the statute contained
adequate security measures); Nixon v. Adm’r of Gen. Servs., 433 U.S.
425, 465, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977) (assuming that
President Nixon had a legitimate expectation of privacy in his private
communications, but upholding a federal law that provided for the review
and classification of presidential materials by professional archivists).
Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008). The latter interest, commonly
referred to as the “informational right to privacy,” Bloch, 156 F.3d at 683, is implicated
in this case.
In contrast to our sister circuits, we have limited the right of informational
privacy “only to interests that implicate a fundamental liberty interest.” Lambert, 517
F.3d at 440 (internal quotation marks and citation omitted). Accordingly, a plaintiff
alleging the violation of his informational privacy rights must demonstrate that “the
interest at stake relates to those personal rights that can be deemed fundamental or
implicit in the concept of ordered liberty.” Bloch, 156 F.3d at 684 (internal quotation
marks and citation omitted); see also Lee v. City of Columbus, Ohio, 636 F.3d 245, 260
(6th Cir. 2011); J.P. v. DeSanti, 653 F.2d 1080, 1087-91 (6th Cir. 1981). Given this
demanding standard, we have recognized a constitutionally-protected informational-
privacy interest in only two circumstances: (1) where the release of personal
information may lead to bodily harm, and (2) where the released information relates to
matters “of a sexual, personal, and humiliating nature.” Lambert, 517 F.3d at 440.
Our precedent forecloses Wurzelbacher’s privacy claim. Wurzelbacher does not
allege that the improper database searches endangered a fundamental liberty interest.
Certainly, he does not allege that he was subjected to a risk of bodily injury or that
No. 10-4009 Wurzelbacher v. Jones-Kelley, et al. Page 9
intimate information was disclosed to the public. Thus, because Wurzelbacher has not
identified an interest at stake that is “fundamental or implicit in the concept of ordered
liberty,” his claim fails. Bloch, 156 F.3d at 684 (internal quotation marks and citation
omitted). The Supreme Court has listed “matters relating to marriage, procreation,
contraception, family relationships, and child rearing and education” as fundamental.
Paul v. Davis, 424 U.S. 693, 713 (1976). None of these interests are implicated in this
case.
V.
For these reasons, we affirm the judgment of the district court.