Alvarado v. Kob-Tv, L.L.C.

• Decision Date: 13 July 2007
• Docket Number: No. 06-2001.,06-2001.
• Citation: 493 F.3d 1210
• Parties: Vicente ALVARADO, Yvette Alvarado, Steve Flores, Priscilla Flores, Thomas Gutierrez, Beverly Gutierrez, Plaintiffs-Appellants, v. KOB-TV, L.L.C. (Channel 4 News), Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

493 F.3d 1210

Vicente ALVARADO, Yvette Alvarado, Steve Flores, Priscilla Flores, Thomas Gutierrez, Beverly Gutierrez, Plaintiffs-Appellants, v. KOB-TV, L.L.C. (Channel 4 News), Defendant-Appellee.

No. 06-2001.

United States Court of Appeals, Tenth Circuit.

July 13, 2007.

Jason Bowles, (B.J. Crow with him on the briefs) Bowles & Crow, Albuquerque, NM, for Plaintiffs-Appellants.

Geoffrey D. Rieder, (Travis G. Jackson, with him on the brief) Foster & Rieder, P.C., Albuquerque, NM, for Defendant-Appellee.

Before KELLY, EBEL, and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.

Two former undercover police officers for the City of Albuquerque brought suit against a local television station, KOB-TV, for broadcasting their identities and their undercover status in the context of their suspected involvement in an alleged incident of sexual assault. The officers were never charged, and about a week after the broadcasts, the city police department announced publicly that it had concluded the officers were not involved in the alleged sexual assault. The officers sued KOB-TV for invasion of privacy and intentional infliction of emotional distress. The district court dismissed their claims under Fed.R.Civ.P. 12(b)(6). While we are sympathetic to the difficult and potentially dangerous situation undercover officers face after having their identities revealed to the public, we agree with the court below that the officers' allegations do not support a tort claim for either invasion of privacy or emotional distress. Because Alvarado and Flores fail to state a claim upon which relief can be granted, it is unnecessary for us to reach the issue of whether KOB-TV's First Amendment defense merited dismissal of the claims. Accordingly, we AFFIRM dismissal of their claims.

I. BACKGROUND

Vicente Alvarado and Steve Flores were undercover police officers for the City of Albuquerque in early 2004. According to the facts alleged by Alvarado and Flores in their complaint, around May 3, 2004, Syra Roman called the Albuquerque Police Department to report that she had been sexually assaulted by two undercover officers. The detective taking the call asked her to obtain a physical examination and follow up with him within a couple of days, but apparently she did neither. A week later, a detective with the police department apprehended Roman on the basis of an outstanding warrant, and told her that, if she gave a statement about the alleged sexual assault, she would not be booked on that warrant. She gave the requested statement, describing her alleged assailants, and the police department released her. A couple of weeks later, one of Roman's friends contacted the detective who had taken Roman's statement. The friend suggested that Alvarado and Flores were the two officers involved in the sexual assault.

On June 2, a police department captain told Alvarado and Flores to report to the deputy chief's office about some allegations, but they were not told the nature of those allegations. The same day, a state district judge signed warrants to authorize searches of their homes and vehicles. The judge sealed the warrants to the extent of Alvarado's and Flores's names and addresses, citing potential endangerment to the officers and interference with investigative activities. However, the court order sealing the warrants was not addressed to KOB-TV, nor did it mention the press generally.

At a time uncertain, someone provided KOB-TV with information about the sexual assault allegations and the investigation, naming Alvarado and Flores. On June 3, KOB-TV ran newscasts at 6 p.m. and 10 p.m. about the investigation in which Alvarado and Flores were named as being accused of the sexual assault. KOB-TV also ran video footage of Alvarado and Flores each answering the door to their respective homes and telling the reporter that they did not wish to comment.

At some point, someone informed KOB-TV that Alvarado and Flores were undercover narcotics officers. During the 10 p.m. newscast on June 3, KOB-TV announced that the news station had learned they were undercover detectives and therefore blurred their faces. However, KOB-TV did not remove their names from that broadcast or subsequent broadcasts. KOB-TV ran coverage of the investigation for several days and posted the news stories on the internet, although no charges were brought. On June 8, KOB-TV reported that the officers had been cleared by DNA evidence and by evidence that one of the officers was not in the state on the day of the alleged assault. Furthermore, the accuser, Roman, later recanted her allegations. But according to Alvarado and Flores, the damage was done. They claim their "lives have been threatened since the time that their names and identities were released to the general public," and they continue to "fear for their lives and that of their families."

Alvarado and Flores and their respective spouses, Yvette Alvarado and Priscilla Flores (collectively, "Plaintiffs"), brought suit against the City of Albuquerque for defamation, false imprisonment and violations of their constitutional right to privacy.¹ The suit also named KOB-TV as a defendant, alleging invasion of privacy and intentional infliction of emotional distress. Plaintiffs specifically claimed that KOB-TV "violat[ed] a court order" and "subject[ed] Plaintiffs . . . to serious physical harm or even death." The City removed the entire action to federal court because the Plaintiffs brought a claim under 42 U.S.C. § 1983 and 5 U.S.C. § 552a(b), thus stating a federal question providing for federal district court jurisdiction under 28 U.S.C. § 1331.

The United States District Court of the District of New Mexico ruled for KOB-TV on a Rule 12(b)(6) motion to dismiss. Alvarado v. KOB-TV, LLC, No. 05-750, slip op. (D.N.M. Nov. 14, 2005). The court held that Plaintiffs' allegations "d[id] not meet the contours" of invasion of privacy and intentional infliction of emotional distress. Id. at 10-13. The court concluded also that, on the facts alleged, the First Amendment would bar relief through tort law. Id. Further, the court decided that even if the order sealing Alvarado and Flores's names from the search warrants applied to the media, it would have been an unconstitutional prior restraint. Id. at 9. Because the district court concluded that the plaintiffs' claims against KOB-TV failed as a matter of law, it did not convert KOB-TV's motion to dismiss into one seeking summary judgment, despite the fact that the parties had submitted to the court evidence outside the pleadings. Id. at 5.

This appeal followed. We have jurisdiction over an appeal from a final order of dismissal from a district court, pursuant to the district court's amended order of dismissal under Fed.R.Civ.P. 54(b). See 28 U.S.C. § 1291.

II. DISCUSSION

A. Standard of Review

We review de novo a district court's decision on a Rule 12(b)(6) motion for dismissal for failure to state a claim. Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir.1995). "We must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996). "We look for plausibility in th[e] complaint." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1970, 167 L.Ed.2d 929 (2007).²

In reviewing a Rule 12(b)(6) motion to dismiss, our first step is to review the factual allegations that should have been considered by the district court. See, e.g., Prager v. LaFaver, 180 F.3d 1185, 1188 (10th Cir.1999). On a Rule 12(b)(6) motion, if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). "[I]n general, a motion to dismiss should be converted to a summary judgment motion if a party submits, and the district court considers, materials outside the pleadings." Prager, 180 F.3d at 1188. However, notwithstanding the usual rule that a court should consider no evidence beyond the pleadings on a Rule 12(b)(6) motion to dismiss, "the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity." Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002). "The failure to convert a 12(b)(6) motion to one for summary judgment where a court does not exclude outside materials is reversible error unless the dismissal can be justified without considering the outside materials." GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir.1997) (emphasis added).

In the proceedings below, Plaintiffs submitted to the district court a copy of the court order sealing Alvarado's and Flores's names and addresses, and KOB-TV submitted a certified transcript of excerpts of the audio portion of at least some of the broadcasts in question and a DVD containing copies of those broadcasts. In a hearing on the motion, the court acknowledged it had reviewed the transcript of the broadcasts. KOB-TV described some aspects of the video for the court, arguing that Flores's image was too fuzzy to identify him, and that the broadcasts never gave the addresses of either Flores or Alvarado. Plaintiffs argued that they needed an opportunity to conduct discovery on "all of the broadcasts, exactly what they . . . released," adding that they were "not sure [KOB-TV] produced all of them." Plaintiffs also argued that dismissal on a Rule 12(b)(6) motion was inappropriate because they needed discovery on "the circumstances under which [Alvarado's and Flores's names were] disclosed and what [KOB-TV] knew."

On appeal, Alvarado and Flores argue that the district court "impermissibly viewed all of the facts in...