Corbett v. Transp. Sec. Admin.

• Decision Date: 16 November 2012
• Docket Number: Case No. 12–20863–CV.
• Citation: 968 F.Supp.2d 1171
• Parties: Jonathan CORBETT, Plaintiff, v. TRANSPORTATION SECURITY ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

968 F.Supp.2d 1171

Jonathan CORBETT, Plaintiff,
v.
TRANSPORTATION SECURITY ADMINISTRATION, et al., Defendants.

Case No. 12–20863–CV.

United States District Court,
S.D. Florida.

Nov. 16, 2012.

[968 F.Supp.2d 1176]

Jonathan Corbett Miami, FL, pro se.

Laura G. Lothman, U.S. Department of Justice Constitutional and Specialized Torts, Washington, DC, Robert Dominic Yates, Robert D. Yates, P.A., Robert Lon Teitler, Fort Lauderdale, FL, for Defendants.

OMNIBUS ORDER ON DEFENDANTS' MOTIONS TO DISMISS (D.E. 30, 37, 41, 64) AND PLAINTIFF'S CROSS–MOTIONS FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT (D.E. 38, 46, 65)
JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court on Defendants Broward County, the United States of America, the Transportation Security Administration, Alejandro Chamizo, and Broward Sheriff Al Lamberti's Motions to Dismiss (D.E. 30, 5/22/2012; D.E. 37, 6/25/2012; D.E. 41, 7/19/2012; D.E. 64, 10/22/2012). Plaintiff Jonathan Corbett filed Responses in Opposition (D.E. 35, 6/6/12; D.E. 46, 8/3/2012; D.E. 38, 7/9/12; D.E. 65, 11/7/12), which included three purported Cross–Motions for Leave to Amend ( see D.E. 38, 7/9/12; D.E. 46, 8/3/12; D.E. 65, 11/7/12). Defendants filed Replies (D.E. 36, 6/12/12; D.E. 49, 8/13/12; D.E. 42, 7/23/12; D.E. 68, 11/14/12), and Plaintiff filed one Sur–Reply (D.E. 45, 7/24/12). Having considered the referenced filings and the record, the Court finds as follows.

I. Background

Plaintiff's First Amended Complaint alleges the following.

On August 27th, 2011, Plaintiff arrived at Fort Lauderdale–Hollywood International Airport in Broward County to board a commercial airline flight. (First Amended Complaint, D.E. 20 ¶¶ 23, 24, 26.)

Plaintiff proceeded to a Transportation Security Administration (TSA) checkpoint where he was required to submit to a security screening. ( Id. ¶¶ 27, 28.)

At the checkpoint, Plaintiff was directed to a full-body scanner. ( Id. ¶ 30.) A full-body scanner uses millimeter waves or similar electromagnetic radiation to create a nude image of a subject and detect metallic objects. ( See id. ¶ 30.)

Plaintiff declined to go through the body scanner. ( Id. ¶ 31.) TSA policy allows passengers to decline going through the scanner and to submit to a manual pat-down search instead. ( Id. ¶¶ 32, 33.)

Plaintiff was informed by TSA personnel that he would be screened using a pat-down search. ( Id. ¶ 34.) Plaintiff agreed to a pat-down search on the condition that the TSA screener not touch his private areas. ( Id. ¶ 35.) A TSA screener informed Plaintiff that this condition was a problem. ( Id. ¶ 36.) The screener summoned a TSA supervisor. ( Id.) The supervisor informed Plaintiff that he would have to consent to having private areas touched or police would be called. ( Id. ¶ 37.) Plaintiff reiterated that he would not consent to the touching of his private areas. ( Id. ¶ 38.) The TSA supervisor summoned a Broward County sheriff as well as Defendant Chamizo, a TSA manager. ( Id. ¶¶ 39, 41, 43.)

Chamizo arrived at the checkpoint and told Plaintiff that would have to consent to having his private areas touched. ( Id. ¶ 44.) Chamizo told Plaintiff that if he did not consent, he would be forcibly searched and arrested. ( Id. ¶¶ 45, 46.) Chamizo also told Plaintiff that he was not free to leave. ( Id. ¶ 47.) Plaintiff's understanding at that point was that he was being detained. ( Id. ¶ 48.)

[968 F.Supp.2d 1177]

Meanwhile, two TSA screeners searched Plaintiff's belongings, which consisted of a backpack and a plastic bag containing books. ( Id. ¶¶ 50, 51.) One of the screeners found a stack of Plaintiff's credit cards and IDs. ( Id. ¶ 55.) Plaintiff objected to the inspection of his credit cards, stating that the search exceeded TSA's objective of finding weapons, explosives, and incendiary devices. ( Id. ¶ 56.) The screener responded that he was just making sure the names matched. ( Id. ¶ 57.) Also during the search, a screener looked through one of Plaintiff's books. ( Id. ¶ 59.) Plaintiff objected. ( Id. ¶ 61.) The screener responded that he could look through Plaintiff's book if he wanted to. ( Id. ¶ 62.)

Chamizo took Plaintiff's driver's license and boarding pass in order to photocopy them. ( Id. ¶ 66.) Plaintiff did not provide consent for Chamizo to do so. ( Id. ¶ 67.) TSA agents also furnished a copy of Plaintiff's driver's license to the Broward Sheriff's Office, and the Broward Sheriff's Office checked if Plaintiff had any outstanding warrants. ( Id. ¶ 70, 72.)

The search of Plaintiff's belongings lasted more than thirty minutes. ( Id. ¶ 52.) Plaintiff was subsequently “ejected” from the security checkpoint and denied access to his departure gate. ( Id. ¶ 73.)

On August 29, 2011, Plaintiff requested, pursuant to the Freedom of Information Act and Florida's Public Records Act, that TSA and Broward County provide any documentation related to and any surveillance video footage of the security confrontation. ( Id. ¶¶ 74, 75.) TSA responded by stating that it was not in possession of any video evidence, as it did not operate the cameras at Fort Lauderdale–Hollywood International Airport. ( Id. ¶ 77.) Broward responded by stating that no video evidence existed, and even if it did, Broward had been informed by the TSA that any video footage would constitute sensitive security information not subject to public disclosure. ( Id. ¶ 78, 80, 84.) TSA has since furnished to Plaintiff documentation and surveillance footage of the incident, though it has withheld certain documents and pixelated select video footage pursuant to several specified Freedom–of–Information–Act exemptions. ( See TSA FOIA Response, D.E. 42–1 at 1–2; Plaintiff's Status Report, D.E. 50 at 1.)

Plaintiff filed this action pro se on March 2, 2012, alleging various civil rights violations, torts, Privacy–Act violations, and Freedom–of–Information–Act/Public–Records–Act violations. ( See Complaint, D. E. 1.) Plaintiff's First Amended Complaint sets forth the following twenty-one counts against Defendants:

Count
Defendant
Asserted Basis of Claim
Allegation

1	Chamizo	Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)/Fourth Amendment	Unreasonable seizure of person
2	Chamizo	Bivens /Fourth Amendment	Unreasonable search of credit cards
3	Chamizo	Bivens /Fourth Amendment	Unreasonable search of book
4	Chamizo	Bivens /Fourth Amendment	Unreasonable “retaliatory” search
5	Chamizo	Civil Rights Act, 42 U.S.C. § 1983	Deprivation of constitutional, federal, and state rights
6	United States	Federal Tort Claims Act, 28 U.S.C. § 1346/Florida state law	Civil assault by Chamizo
7	United States	Federal Tort Claims Act, 28 U.S.C. § 1346/Florida state law	False arrest by TSA agents
8	United States	Federal Tort Claims Act, 28 U.S.C. § 1346/Florida state law	False light invasion of privacy by TSA agents for publicly detaining Plaintiff and searching belongings
9	United States	Federal Tort Claims Act, 28 U.S.C. § 1346/Florida state law	Intentional infliction of emotional distress by TSA agents
10–16	TSA	Privacy Act, 5 U.S.C. § 552a(e)(3), (4), (5), (9), (10), (11), (12)	Failure to meet agency requirements when taking driver's license and boarding pass
17	TSA	Freedom of Information Act, 5 U.S.C. § 552, et seq.	Failure to respond to request for disclosure
18	Broward	Florida Public Records Act, Fla. Stat. § 119, et seq.	Failure to provide records as requested
19	United States	Federal Tort Claims Act, 28 U.S.C. § 1346/Florida state law	Civil conspiracy in denying Public Records Act request
20	Broward	Florida state law	Civil conspiracy in denying Public Records Act request
21	Broward Sheriff's Office	Florida Constitution	Unlawful search and seizure for accepting Plaintiff's driver's license and running warrant check

[968 F.Supp.2d 1178]

(First Amended Complaint, D.E. 20 at 9–14.) Plaintiff seeks a myriad of compensatory, punitive, statutory, and nominal damages as well as declaratory and injunctive relief. ( See id. at 15.)

II. Motions

Defendants move to dismiss Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). ( See Motions, D.E. 30, 37, 41, 64.) Defendants assert numerous grounds for dismissal which are discussed below.

In his Responses to Defendants' Motions to Dismiss, Plaintiff requests leave to amend his First Amended Complaint. ( See D.E. 38, 46, 65.) Plaintiff's requests to amend are detailed below as well.

III. Applicable Standardsa. Rule 12(b)(6) Dismissal

Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. SeeFed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss under Rule 12(b)(6), a court must accept all factual allegations contained in the complaint as true and view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). “The threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is ... ‘exceedingly low.’ ” Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985) (quoting Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev., 711 F.2d 989, 995 (11th Cir.1983)). To dismiss, it must “appear [ ] to a certainty, ‘that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. (quoting Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984)).

[968 F.Supp.2d 1179]

b. Rule 12(b)(1) Dismissal

A challenge to the court's subject-matter jurisdiction is brought under Federal Rule of Civil Procedure 12(b)(1). SeeFed.R.Civ.P. 12(b)(1); Newman v. William L. Gunlicks Irrevocable Trust, 897 F.Supp.2d 1270, 1272–73 (M.D.Fla.2012). Attacks on subject-matter jurisdiction come in two varieties, facial attacks and factual attacks. Godiciu v. J.P. Morgan Chase Bank, N.A., 2012 WL 4370263, at *1 (S.D.Fla.2012). Facial attacks assert that the plaintiff's allegations, taken as true, fail to establish the court's jurisdiction. ...