Jurek v. Am. Tel.
| Decision Date | 19 September 2013 |
| Docket Number | CASE NO. 5:13 CV 1784 |
| Parties | JASON JUREK, Plaintiff, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Jason Jurek ("plaintiff" or "Jurek"), filed this action under the Telecommunications Act, 47 U.S.C. § 222, and the Cable Communications Policy Act ("Cable Act"), 47 U.S.C. § 551, against Anthony Finlaw ("Finlaw") and the American Telephone and Telegraph Company ("AT&T") (collectively "defendants"). In the complaint, plaintiff alleges defendants unlawfully accessed his personal computer in violation of his privacy rights under state and federal law and in breach of their contractual obligations, causing him economic injury. He seeks monetary relief. For the reasons that follow, this action is dismissed.
Jurek's complaint alleges he purchased AT&T's "U-Verse" service for his Chesterland, Ohio residence. (Compl. at 4.) He states "U-Verse" included internet, cable, and telephone services. (Id.) In the summer of 2011, Jurek requested that AT&T repair a "malfunctioning internet gateway" or "modem" at his home. (Id. at 3.)
On August 9, 2011, Finlaw, an AT&T "premises technician," responded to Jurek's service call. (Id.) Upon Finlaw's arrival at Jurek's house, Jurek's adult son greeted Finlaw, permitted him to enter the home, and directed him to the modem. Jurek was not at home at the time, but phoned his son and requested to speak with Finlaw. During that conversation, Jurek told Finlaw that several other AT&T technicians had visited the home but were unable to resolve the issues with his modem. Finlaw purportedly assured Jurek he would fix the problem. The complaint states that "[a]t no point during the conversation did Jurek give Finlaw, nor did Finlaw request, permission to turn on, access, inspect and/or connect to" Jurek's personal computer, which was located near the modem, or any of Jurek's other electronic devices. (Id. at 4.) Jurek states further that no other AT&T technician ever "accessed and/or requested permission to access Jurek's electronic devices[]" while repairing his modem. (Id.)
The complaint asserts Finlaw turned on Jurek's personal computer without his permission and bypassed Jurek's password to gain access to the computer's contents. Finlaw opened a browser window and discovered a previously-visited website containing the word "lolita" in the web address. (Id. at 5.) He then closed the browser window and spent approximately thirty minutes "searching" through Jurek's computer files and folders, which Jurek alleges "contained private, sensitive information not available to the general public." (Id.) During this "search," Finlaw discovered photographs, which he believed to be child pornography. (Id.) Finlaw subsequently left Jurek's home and reported his findings to his supervisor at AT&T.
The following day, August 10, 2011, Finlaw and a representative from AT&T's AssetProtection Department contacted the Chesterland Township Police Department, and notified them of Finlaw's findings at Jurek's residence. On August 23, 2011, Jurek was arrested and, on September 21, 2011, he was indicted in federal district court on one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count 1) and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 2). See United States v. Jurek, No. 1:11-cr-433, ECF No. 9 (N.D. Ohio Sept. 21, 2011) (Pearson, J.).
Jurek's complaint states that following his arrest, "an independent forensic review was conducted on his computer," and except for "'ghost' files in the unallocated space on the hard drive" depicting images of child pornography," " it was determined that no images of child pornography were on the computer." (Compl. at 5-6.) He further claims that, during a suppression hearing in his federal criminal proceedings, Finlaw testified his supervisor was not concerned with his actions at Jurek's residence and that he was unaware of any AT&T policies related to "customer/subscriber privacy" or as to "how he should act and conduct himself when inside the property of a customer/subscriber." (Id. at 6.)
The complaint directs the Court to the transcript of Finlaw's testimony as "part of the publicly available record," and to Judge Pearson's opinion denying Jurek's motion to suppress the fruits of Finlaw's "search," which "outline[s] the occurrences described [in the complaint]." (Id. at 7.) Jurek's motion to suppress argued Finlaw was acting as an agent of law enforcement and that his search was unreasonable. Jurek, No. 1:11-cr-433, ECF No. 33 at 4-5. The transcript from the suppression hearing indicates Finlaw testified that he had not received any training from AT&T suggesting he conduct "searches" akin to his search of Jurek's computer on August9, 2011. Jurek, No. 1:11-cr-433, ECF No. 39 at 8. He also stated that in most cases, it is not necessary for AT&T service technicians to access a customer's personal computer to make service repairs and, instead, he utilizes his own laptop computer when performing service calls. Id. at 11.
However, Finlaw testified that on the day in question, his laptop computer's ethernet connection was not functioning, and "in order to correctly configure [Jurek's] router . . . [he] did have to use [Jurek's] computer." Id. at 11-13.1 He connected to the modem through a browser window on Jurek's computer and directed the modem to recognize the new cable connection, which he had run from the exterior phone box to the modem. Id. at 18-19. When he opened the browser window, he saw the term "Lolita" in the browser history, which he understood as a reference to a "little woman or little girl" and which led him to believe there may be illegal material on Jurek's computer. Id. at 23. Finlaw stated he had previously used other customers' personal computers to confirm the success of modem repairs, but had never before viewed a customer's browser history that caused him similar concerns. Id. at 22. He testified that he then clicked the "start menu" on the computer screen, opened a file marked "Picture Files," and found pornographic images of what he believed to be children. Id. at 24-25. Finlaw admitted it was not necessary to open these files to ensure that the modem was working properly.
Following the hearing, Judge Pearson denied Jurek's motion to suppress, finding the hearing testimony did not established Finlaw was acting "on behalf of," "under the direction of," or "at the acquiescence of" law enforcement when he observed the pornographic images andsubsequently reported his observations to others at AT&T and, ultimately, to the local police and the federal authorities. Jurek, No. 1:11-cr-433, ECF No. 33 at 7.
On November 6, 2012, Jurek entered a guilty plea as to Count 1 of the Indictment. Jurek, No. 1:11-cr-433 (Minutes of Proceedings Nov. 6, 2012). During the change of plea hearing, Jurek admitted to using a computer at his home to access the internet, visiting website and online forums containing images of minors engaged in sexually explicit conduct, and downloading said images onto an external hard drive and his personal computer. Jurek, No. 1:11-cr-433, ECF No. 70 at 37-38 (Transcript of Change of Plea Hearing). On March 14, 2013, the court sentenced Jurek to 61 months incarceration to be followed by a 10 year term of supervised release as to Count 1, and Count 2 of the Indictment was dismissed. Jurek, No. 1:11-cr-433, ECF No. 60 (Judgment), ECF No. 64 (Amended Judgment Apr. 8, 2013). On March 29, 2013, Jurek filed a notice of appeal to the Sixth Circuit Court of Appeals. His appeal remains pending.
In the present action, Jurek sues Finlaw and AT&T for violations of federal privacy laws and state common law. In Count I of the complaint, he alleges AT&T violated its duty to maintain and protect his privacy as a customer/subscriber under the Telecommunications Act when AT&T permitted the unauthorized access of his personal computer by its employee, Finlaw. (Compl. at 7-8.) Jurek claims to have suffered "an economic injury" as a result. (Id. at 8.) In Count II of the complaint, he asserts defendants' conduct also violated the Cable Act; again causing him "economic injury." (Id.) Counts III through VII, allege state law claims for breach of contract, breach of oral contract, breach of implied-in-fact contract, invasion ofprivacy, and breach of fiduciary duty. (Id. at 8-14.)
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). Principles requiring generous construction of pro se pleadings are not without limits. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). A district court is not required to conjure up questions never squarely presented to it or to construct full blown claims from sentence fragments. Id.
A cause of action fails to state a claim upon which relief may be granted when it lacks "plausibility." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). Assuming all the allegations in the complaint are true, the factual allegations must be sufficient to raise the right to relief above the speculative level. Id. at 555. A claim lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The plaintiff is not required to include detailed...
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