Malleus v. George

Decision Date06 June 2011
Docket NumberNo. 10–3539.,10–3539.
Citation268 Ed. Law Rep. 71,641 F.3d 560
PartiesDr. Karen MALLEUS, Appellantv.Dr. John J. GEORGE, in his individual capacity; Dr. Jill M. Hackman, in her individual capacity; Dr. Jeffrey A. Conrad, in his individual capacity; Intelligencer Journal/Lancaster, New Era Editor Doe; Sunday News Editor Doe; Lancaster Newspapers, Inc.; Cindy Stauffer.
CourtU.S. Court of Appeals — Third Circuit


Andrea C. Farney, Sharon R. Lopez (Argued), Triquetra Law, Lancaster, PA, for Appellant.Paul J. Cianci (Argued), Michael I. Levin, Levin Legal Group, Huntingdon Valley, PA, for Appellees, Dr. John J. George and Dr. Jill M. Hackman.Leonard G. Brown, (Argued), Clymer, Musser, Brown & Conrad, Lancaster, PA, for Appellee, Dr. Jeffrey A. Conrad.

Before: FISHER, JORDAN and COWEN, Circuit Judges.


FISHER, Circuit Judge.

Appellant Dr. Karen Malleus appeals the final order of the United States District Court for the Eastern District of Pennsylvania granting Dr. John J. George, Dr. Jill M. Hackman, and Dr. Jeffrey A. Conrad's motion to dismiss Malleus's 42 U.S.C. § 1983 claim that they violated her Fourteenth Amendment privacy rights. For the reasons discussed below, we will affirm.


Malleus was a school board member for the Warwick School District. George was the superintendent of the Warwick School District. Hackman was the director of pupil services and later the acting assistant superintendent of the Warwick School District. Conrad was the head of the Warwick Republican Party, and later a candidate for the school board.

In 2006, a student within the Warwick School District (“Reporting Student”) reported that she had seen a teacher (“Teacher”) hugging a minor student (“Minor Student”). Immediately after witnessing the incident, the Reporting Student told her substitute teacher about it. That evening the Reporting Student explained to her parents what she had seen. They then had her call her great-aunt, Malleus. Over the next few days, the Reporting Student and her parents met with various school administrators. The school and school district subsequently conducted an investigation into the Reporting Student's claim.

During the subsequent investigation Malleus shared credibility concerns about the Reporting Student, volunteering advice to various administrators that they should have more evidence before disciplining the Teacher based on the account given by the Reporting Student. She raised these concerns with other members of the school board, the school's administration, and the school's faculty. Malleus did so because the allegations against the Teacher were serious, and she questioned the accuracy of those allegations. The investigation into the incident ended when the Teacher and the Minor Student denied the allegations. The Teacher received a warning that the allegations were serious and that, had they been true, the Teacher would have been terminated.

In 2008, a police officer encountered the Minor Student and the Teacher engaging in sexual activity. The Teacher was arrested. Subsequently, the school board conducted its own investigation into the 2006 incident.

Malleus agreed to cooperate with the investigation because the attorney conducting the investigation told her that the report would remain confidential, and the school board expressed that the report would be confidential. In an interview, she repeated her opinion that the Reporting Student has a vivid imagination and a history of exaggerating her conclusions about others' conduct.

The final report detailed Malleus's interjection into the 2006 investigation. Malleus viewed the report as unfair, and she was upset with its conclusions; however, she believed it would remain confidential.

In the run up to the 2008 school board election, George and Hackman leaked a copy of the report to Conrad, who subsequently provided it to the press. Local papers released articles based on the report. Malleus alleges that these articles caused reputational harm, family problems, loss of emotional peace of mind, and loss of income.

Malleus filed a § 1983 claim against George, Hackman, and Conrad for violating her right to privacy. She claimed to have had a constitutionally protected expectation of privacy in the report under the Fourteenth Amendment because she had revealed her opinion about her grand-niece for a limited purpose and with the expectation that it would be kept secret. The District Court dismissed the complaint under Fed.R.Civ.P. 12(b)(6), ruling it failed to state a claim because the Fourteenth Amendment does not protect that type of communication.

Malleus filed a timely notice of appeal.


The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

Malleus argues that the District Court erred in dismissing her § 1983 claim. The District Court held that Malleus failed to plead that a right secured by the Constitution had been violated. See Barna v. City of Perth Amboy, 42 F.3d 809, 815 (3d Cir.1994). Malleus argues that her Fourteenth Amendment right to privacy was violated when her opinion about her grand-niece's truthfulness was disclosed by George, Hackman, and Conrad.

We exercise plenary review over a district court's grant of a motion to dismiss. AT & T v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir.2006). When reviewing a motion to dismiss, [a]ll allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom.” Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir.1992). A motion to dismiss should be granted if the plaintiff is unable to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.


For a plaintiff to recover under § 1983, she must establish that the defendant acted under color of state law to deprive the plaintiff of a right secured by the Constitution. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Barna, 42 F.3d at 815. The right that Malleus claims is protected by the Constitution is the right to share one's opinion about other individuals privately. For purposes of Twombly analysis, we must first establish that this is a right secured by the Constitution; if there is no constitutional right, it does not matter what facts have been provided as there can be no § 1983 claim.

Generally, Fourteenth Amendment constitutional privacy is limited to information about oneself. To the extent that the right applies to information about others, it is limited to one's decision not to share that information.

To begin with, both the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private. According to Webster's initial definition, information may be classified as “private” if it is “intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.”

U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 764–65, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (footnotes omitted).

Traditionally, the Fourteenth Amendment has protected two types of privacy rights. Whalen v. Roe, 429 U.S. 589, 599–600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 178 (3d Cir.2005). First, it protects “the individual interest in avoiding disclosure of personal matters.” Hedges v. Musco, 204 F.3d 109, 121 (3d Cir.2000) (internal quotation marks and citation omitted). This category protects against disclosure of certain personal information, including: information containing specific “details of one's personal life,” id. at 121; Scheetz v. The Morning Call, Inc., 946 F.2d 202, 208 (3d Cir.1991), information “which the individual is ordinarily entitled to retain within the private enclave where he may lead a private life,” and information containing “intimate facts of a personal nature.” United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir.1980) (internal quotation marks and citation in footnote omitted). Second, it protects “the interest in independence in making certain kinds of important decisions.” C.N., 430 F.3d at 178 (quoting Whalen, 429 U.S. at 599, 97 S.Ct. 869). This category of “important decisions” has not been extended beyond “matters relating to marriage, procreation, contraception, family relationships, and child rearing and education.” Westinghouse, 638 F.2d at 577 (quoting Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). The first category is a right to...

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