Morris v. Danna

• Decision Date: 01 April 1976
• Docket Number: No. 3-75-Civ. 420.,3-75-Civ. 420.
• Parties: Bruce H. MORRIS, Plaintiff, v. Anthony A. DANNA et al., Defendants.
• Court: U.S. District Court — District of Minnesota

411 F. Supp. 1300

Bruce H. MORRIS, Plaintiff, v. Anthony A. DANNA et al., Defendants.

No. 3-75-Civ. 420.

United States District Court, D. Minnesota, Third Division.

April 1, 1976.

Paul W. Onkka, Jr., Legal Asst. of Ramsey County, St. Paul, Minn., for plaintiff.

C. David Dietz, Asst. Ramsey County Atty., St. Paul, Minn., for defendants.

MEMORANDUM ORDER

LARSON, District Judge.

Plaintiff Bruce Morris commenced this civil action for declaratory, injunctive, and monetary relief on November 24, 1975. Jurisdiction is asserted pursuant to 28 U.S.C. §§ 1331, 1343(3) and 1343(4). The defendants are a former Assistant Ramsey County Attorney (Joseph E. Cartwright), the manager of the Ramsey County Welfare Department RCWD fraud unit (Grace M. Colosimo), the Director of the RCWD, the Ramsey County Attorney, and seven individual members of the Ramsey County Welfare Board. The gist of the plaintiff's cause of action is that he has been damaged by the defendants' malicious invasion of his privacy.

On November 3, 1975, a front page article appearing in the St. Paul Dispatch named the plaintiff as a male "go-go" dancer and welfare recipient who had been "tripped up" by the RCWD fraud unit. A similar article appeared in a Minneapolis newspaper the next day. The complaint alleges that the articles contained information which could only have been obtained from confidential files concerning the receipt of public assistance; in particular, the complaint points to the confidentiality of medical reports submitted to the RCWD by certain named doctors. The complaint alleges on information and belief that all of this information was released to the press for publication by defendants Cartwright and Colosimo, who had access to the files because of their public positions and were therefore acting under color of State law. The complaint further alleges that this release of information made confidential by law was willful and malicious, with the purpose and effect of depriving plaintiff of his statutory and constitutional right to privacy. Specifically, the complaint alleges that the defendants' actions deprived the plaintiff of rights, privileges and immunities secured to him by the Fourteenth Amendment, by 42 U.S.C. § 602(a)(9)¹ a provision in the Social Security Act, by Federal regulations implementing that statute,² by Minn.Stat. §§ 15.162(2a) and 15.1641(c),³ and by State and county regulations.⁴

The defendants have filed a motion to dismiss the complaint for lack of jurisdiction.⁵ Oral argument on that motion was heard on December 12, 1975, and the parties have submitted briefs and citations of authority with respect to the issues presented therein. The Court finds the application of each of the three jurisdictional statutes to the facts of this case to be novel and difficult. Nevertheless, for the reasons set forth herein, it is convinced that neither § 1331, § 1343(3), nor § 1343(4) confer subject matter jurisdiction to entertain the present suit. Accordingly, the defendants' motion to dismiss will be granted.

I. § 1331: FEDERAL QUESTION JURISDICTION OVER ACTIONS ARISING UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES.

The plaintiff's jurisdictional argument under § 1331 has two facets. First, he argues, the action arises under the Constitution, since the defendants' conduct is alleged to have deprived him of a constitutional right to privacy. Second, he contends, the action arises under 42 U.S.C. § 602(a)(9), a provision in the Social Security Act which requires State AFDC plans to contain provisions respecting confidentiality. This Court can accept neither contention, even though it assumes arguendo that the plaintiff's claim of $75,000 in damages is made in good faith.

A. The Constitutional Right to Privacy.

It is true that under some circumstances there can be such a gross abuse of privacy as to amount to an abridgment of fundamental constitutional guarantees. See, e. g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); York v. Story, 324 F.2d 450, 454-55 (9th Cir. 1963), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964). It is also true that, if such circumstances were present here, jurisdiction would attach not only by means of § 1331, assuming the requisite jurisdictional amount, but also under § 1343(3) in conjunction with 42 U.S.C. § 1983.

At common law, however, the "right to privacy" is a multifarious creature, embracing far more than the Constitution has yet been thought to regulate. As Professor Prosser has stated, the common law now protects the right of privacy by recognizing:

". . . not one tort, but a complex of four. To date the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by a common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff `to be let alone.' . . .." W. Prosser, The Law of Torts § 117 at 804 (4th ed. 1971).

Prosser defines the four distinct torts as: (1) "the appropriation, for the defendant's benefit or advantage, of the plaintiff's name or likeness," id.; (2) "intrusion upon the plaintiff's solitude or seclusion . . . as in unauthorized prying," id., at 807-08; (3) "publicity, of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation," id., at 809; and (4) "publicity which places the plaintiff in a false light in the public eye." Id., at 812.

The constitutionalization of any of these four causes of action or their corresponding privacy rights has been an extremely cautious and deliberate process, occurring only in response to extraordinary circumstances. Both Griswold and York cited by the plaintiff, presented such circumstances. Griswold involved an attempt by the State to intrude into the marital privacy of the bedroom. York involved indecent photographs of an assault victim taken by police officers and circulated within the department as a sport; the gist of the action was that the defendants had engaged in unreasonable prying for the purpose and with the effect of humiliating the plaintiff. Both Griswold and York, therefore, were concerned primarily with Prosser's second category of privacy interests; the right to freedom from unauthorized intrusion.

The present action, however, is much more closely allied with the common law tort of defamation than with unwarranted intrusions into the physical security and privacy of the plaintiff. Without denying the truth of the adverse publicity, the complaint alleges that the:

". . . plaintiff has incurred substantial harm and detriment to his character and reputation, and to his ability to obtain and hold gainful employment."

Presenting as it does an issue most closely related to Prosser's third category of privacy cases, the complaint—to paraphrase Prosser—"has almost nothing in common" with the York and Griswold cases.

The law in this circuit is that damages for defamation by public officials are not recoverable under § 1983:

". . . because a defamed person has not been deprived of any right, privilege or immunity secured to him by the Federal Constitution or laws of the United States. . . ." Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (per curiam).

See also Haaf v. Grams, 355 F.Supp. 542, 545-46 (D.Minn.1973) (allegations that the defendants had maliciously issued unwarranted and unfounded criminal complaints and caused a newspaper account to be published with the intent to humiliate and injure the plaintiffs failed to state a constitutionally based cause of action under § 1983). Accord, Baker v. Howard, 419 F.2d 376, 377 (9th Cir. 1969). The Court concludes that this rule provides the answer to the constitutional privacy claim made here.

This Court has discovered only one suggestion in the reported caselaw that publication, under color of law, of governmentally held derogatory information about a citizen may give rise to a constitutionally based cause of action for invasion of privacy. The concurring opinion of Justice Douglas in Doe v. McMillan, 412 U.S. 306, 328, 93 S.Ct. 2018, 2033, 36 L.Ed.2d 912, 930 (1973) (joined by Brennan and Marshall, JJ.), states that in his view, the question presented was whether the congressional publication of a report containing derogatory information about named school children "infringes upon the constitutional rights of petitioners." Justice Douglas' conclusion that the ministerial officials responsible for the publication should not be immune from liability for their acts indicated his belief that the petitioners had properly stated a claim for the deprivation of their constitutional right to privacy. The majority opinion by Justice White, however, indicates rather clearly his belief that the underlying cause of action stemmed from "local laws protecting the good name or the reputation of the ordinary citizen." Id. at 324, 93 S.Ct. at 2030, 36 L.Ed.2d at 927. See Note, The Supreme Court, 1972 Term, 87 Harv.L.Rev. 1, 228 and n.42 (1973). The Doe decision itself, therefore, does not support the finding of a constitutional cause of action in the present case. Moreover, in light of the Eighth Circuit's recent rejection of the constitutional argument in Ellingburg v. Lucas, supra, this Court concludes that the concurring opinion of three Supreme Court Justices is too slender a reed to support the conclusion that the plaintiff in the case sub judice has stated a constitutional claim. See also Paul v. Davis, ___ U.S. ___, 96 S.Ct. 1155, 47 L.Ed.2d 405, 44 U.S.L.W. 4337 (1976) (defamatory flyer by police authorities violated no constitutional right to privacy).

B. The Statutory Right to the Confidentiality of Welfare Records.

The plaintiff contends, however, that this case is distinguishable from Ellingburg, Haaf, and Baker because the information made public here was required by law to be...