U.S. v. Lewis, 03-2734.

• Decision Date: 15 June 2005
• Docket Number: No. 03-2734.,No. 03-3427.,03-2734.,03-3427.
• Citation: 411 F.3d 838
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dewayne LEWIS, Defendant-Appellant. Dewayne Lewis, Plaintiff-Appellant, v. Susan Bolden, Branch Manager of the Midwest America Federal Credit Union, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

411 F.3d 838

UNITED STATES of America, Plaintiff-Appellee, v. Dewayne LEWIS, Defendant-Appellant.

Dewayne Lewis, Plaintiff-Appellant, v. Susan Bolden, Branch Manager of the Midwest America Federal Credit Union, Defendant-Appellee.

No. 03-2734.

No. 03-3427.

United States Court of Appeals, Seventh Circuit.

Argued September 21, 2004.

Decided June 15, 2005.

Tina L. Nommay (argued), Office of the United States Attorney, Fort Wayne, IN, for Plaintiff-Appellee, United States of America.

J. Gregory Deis (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Defendant-Appellant and Plaintiff-Appellant.

Tina L. Nommay (argued), Office of the United States Attorney, Dane L. Tubergen, Andrew S. Williams (argued), Hunt Suedhoff Kalamoros, Fort Wayne, IN, for Defendant-Appellee, Susan Bolden.

Before MANION, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Although almost anyone might feel harassed to some degree when a lawsuit is filed against her, special problems arise when that individual is a victim or a witness of a crime, and the plaintiff is associated with a suspect. Susan Bolden, the Branch Manager for the Midwest America Federal Credit Union (Credit Union), was such a defendant. The district court decided that Bolden was entitled to protection under the Victim Witness and Protection Act of 1982 (the Act), Pub.L. No. 97-291, 96 Stat. 1248 (Section 4 of Pub.L. 97-291, codified at 18 U.S.C. §§ 1512, 1513, 1514, and 1515), which protects victims and witnesses of federal crimes from "harassment."

The events in this case arose out of Bolden's effort to cooperate with a federal investigation of a bank robbery that she witnessed, and of which she was a victim. Dewayne Lewis was not the primary suspect in the robbery, but circumstantial evidence indicated that he might have had some role in it. Bolden turned over the names and social security numbers of both Lewis and Todd Andrews, the primary suspect to federal authorities investigating the bank robbery. For her trouble, she was rewarded with this suit by Lewis, seeking $2 million in damages under 42 U.S.C. § 1983 for her role in helping the police — assistance that he claimed violated his rights under the Fourth Amendment. The district court took two actions to which Lewis takes exception here. First, it entered a protective order under 18 U.S.C. § 1514(b) of the Act against Lewis in which it characterized the lawsuit as "harassment" of Bolden and commanded Lewis to desist. Second, it dismissed Lewis's complaint under Fed.R. Civ. P. 12(b)(6). We affirm both the judgment and the protective order.

I

The underlying facts are, for the most part, undisputed. On November 28, 2001, the Credit Union was robbed by two masked gunmen. Bolden, on the job as the Branch Manager, witnessed the crime. The district court found in its memorandum decision on the requested protective order that Bolden was interviewed shortly after the robbery by Detective Vaughn of the Allen County Sheriff's Department. As Vaughn was conducting the interview, both Vaughn and Bolden heard a radio transmission from the Fort Wayne police indicating that they may have located a witness. Specifically, the field officers said that a maroon Cadillac with three black males had pulled up next to a vehicle at an apartment complex and the occupants had begun transferring bags or equipment into the other car and tossing items up onto the roof. Bolden then reported to Vaughn that a few days earlier, a maroon Cadillac had been seen cruising around the bank's parking lot in the early morning. One or more of the occupants — also an African-American male — had gone into the Credit Union and conducted a transaction. Suspicious, the employees had kept a record of the names of the individuals who had transacted business in the bank. They also wrote down a partial license plate number. At some point — unspecified in the district court's order — Vaughn was given those names. He ran the information through the Bureau of Motor Vehicles and found that Lewis had a maroon Cadillac registered to his name.

Another official investigating the robberies was Special Agent Restituto Loran, an FBI agent who was a member of the local Federal Bank Robbery Task Force (Task Force). Agent Loran also reported the substance of the information collected by Vaughn. Agent Loran's affidavits, however, do not clearly indicate what the employees witnessed. According to his November 30, 2001, affidavit, prepared immediately after the robbery, the employees were able to identify only Andrews from the record of the earlier transaction. Loran's later affidavit, which had been prepared to support the government's request for a protective order filed on June 6, 2003, asserted that the Credit Union employees had identified both Andrews and Lewis as the individuals involved in the earlier incident. Either way, there is no doubt that after she overheard the radio dispatch, Bolden conducted a search of the Credit Union records and provided the Task Force with Lewis's name and social security number. Lewis alleges that she did so at the request of the law enforcement officers. Lewis himself did not authorize the search, nor did the police obtain a warrant for the search.

In the end, the authorities obtained a videotaped confession from Andrews, and he was charged with aiding and abetting the Credit Union robbery in violation of 18 U.S.C. §§ 2, 924(c), 2113(a), and 2113(d). Lewis was never charged under either federal or state law with any offense in connection with the robbery because he was incarcerated when the bank robbery occurred.

After Andrews filed a motion to suppress evidence of the robbery and his videotaped confession and the court denied that motion, the government disclosed certain Jencks Act materials to the defense. See 18 U.S.C. § 3500. This was how both Andrews and Lewis learned of Bolden's role in the investigation. On May 14, 2003, Andrews and Lewis separately brought pro se actions in state court against Bolden, each seeking $2 million in damages from her individually, under 42 U.S.C. § 1983, for disclosing their names and social security numbers to the Task Force. On June 6, 2003, the government responded with a complaint in federal district court seeking a temporary restraining order and a protective order under 18 U.S.C. § 1514(a) and (b), that would prohibit Andrews and Lewis from "harassing, intimidating, deposing or otherwise proceeding against Susan Bolden [in the designated cases]."

In short order, the district court issued an ex parte temporary restraining order against Andrews and Lewis enjoining them from proceeding in any way against Bolden in their pending pro se actions "or in any other state or federal civil proceeding relating to any events or transactions connected with the case of United States of America v. Todd Andrews... for charges in relation to the November 28, 2001, armed robbery of the Midwest America Federal Credit Union." Immediately after a hearing held on June 12, 2003, the court converted this into a protective order under § 1514(b) that was to last for three years from the date of issuance; it entered judgment on that order on June 25, 2003, and Lewis's appeal from that judgment was docketed in this court on June 30, 2003, as appeal No. 03-2734.

In the meantime, Bolden removed both Lewis's and Andrews's state court actions to the U.S. District Court for the Northern District of Indiana. There she moved to dismiss for failure to state a claim, arguing both that the § 1983 claim failed for lack of state action and that the Right to Financial Privacy Act (RFPA), 12 U.S.C. § 3403(a), which generally prohibits disclosure of financial records of customers, did not reach her actions. The district court granted her motion and entered judgment in her favor on August 26, 2003, agreeing that there was no state action and finding that she was immune under an exemption to the RFPA, see 12 U.S.C. § 3403(c). Lewis's appeal from that judgment was docketed in this court on September 15, 2003, as No. 03-3427. In a later order, we consolidated the two appeals. (Andrews's case dropped out along the way; we therefore have no comment on it.)

II

For reasons that will become apparent later, we consider first Lewis's appeal from the judgment dismissing his civil action against Bolden. We apply a de novo standard of review to a district court's grant of the motion to dismiss for failure to state a claim under Rule 12(b)(6). Olson v. Wexford Clearing Servs. Corp., 397 F.3d 488, 490 (7th Cir.2005). The question before us is whether there is any set of facts consistent with Lewis's allegations that would give rise to a right to relief. Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir.1997) ("It is enough if the complaint puts the defendants on notice of the claim and that some set of facts could be presented that would give rise to a right to relief."). Lewis now relies on the RFPA and state law to support his complaint. He correctly notes that his earlier references to § 1983 and the Fourth Amendment do not prevent him from going forward, because it is well established that litigants do not need to plead legal theories. Like Lewis, we focus most of our attention on his RFPA theory.

Lewis argues that the allegations of the complaint are consistent with a finding that Bolden violated RFPA in two ways: first, that she conducted her search at the direction of law-enforcement officials and thus provided the government with "access to" Lewis's financial records in violation of 12 U.S.C. § 3403(a); and second, she provided law-enforcement officials with Lewis's name and social security number, both of which she derived from his financial records. The court assumed favorably to Lewis that Bolden had done all of these things, but it then turned to § 3403(c), which says:

Nothing in this title shall preclude any financial institution, or any officer, employee, or agent of a financial institution, from notifying...