Paige v. United States Drug Enforcement Admin.

Decision Date29 December 2010
Docket NumberCivil Action No. CV 1:06–644 (JDS).
Citation818 F.Supp.2d 4
PartiesLee PAIGE, Plaintiff, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Defendant.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

Joseph D. Magri, Merkle Magri & Meythaler, P.A., Ward A. Meythaler, Merkle & Magri, P.A., Tampa, FL, for Plaintiff.

Paul A. Dean, U.S. Department of Justice, Washington, DC, for Defendant.

ORDER

JACK D. SHANSTROM, Senior District Judge.

Presently before the Court is the Defendant's Motion for Summary Judgment on all of Plaintiff's claims. Plaintiff has also filed a Cross-motion for Partial Summary Judgment on liability and to Strike Various Defenses. A hearing was held on the Parties' Motions. After review and consideration, the Court is prepared to render a ruling at this time.

FACTUAL BACKGROUND

Plaintiff Lee Paige has been an agent for the United States Drug Enforcement Agency since 1990. At the time of the incident at issue, Plaintiff was stationed at the DEA's Orlando District Office (“ODO”). On April 9, 2004, Plaintiff was giving a drug education presentation to parents and children at the Orlando Youth Minority Golf Association (OMYGA) in Orlando, Florida. During the course of the presentation, Plaintiff was showing his sidearm to the audience and informing them about the importance of gun safety. He then stated that “I am the only one in the room professional enough, that I know of, to carry this Glock 40.” Almost immediately after, Plaintiff accidently discharged his sidearm and wounded himself in the leg.

The Incident was videotaped on to a Mini–DV storage device by a private individual. Plaintiff was aware of the videotaping. The Mini–DV was provided to the DEA. A copy of the Mini–DV was also made on to a VHS tape. The record reflects that the DEA had the only copies of the video with the shooting footage.

Subsequent to the Incident, an investigation was conducted by the DEA Office of Inspections (“IN”). The investigation resulted in a decision by the DEA Board of Professional Conduct to place Plaintiff on suspension for a five-day period. It is undisputed that during the course of the investigation, numerous copies of the Incident, in varying lengths and forms of electronic media were made.

Beginning in March 2005, the video of the Plaintiff's Incident began to circulate on the Internet and was also picked up by broadcast shows including the Jay Leno Show, CNN Headline News, Fox News, the Jimmy Kimmel Show and others. These video clips are 4 minutes and 9 seconds (4:09) in length.

Plaintiff contends that the DEA had the only copy of the video and that Plaintiff never consented to the disclosure of the video. Plaintiff's Amended Complaint alleges Count I—that the disclosure of the video constitutes a violation of the Privacy Act and Count II—that the disclosure of the video is an invasion of privacy and false light under the Federal Tort Claims Act (“FTCA”). It is upon this backdrop that this Court shall look at the Parties' respective motions for summary judgment.

STANDARD OF REVIEW

Where no genuine dispute exists as to any material fact, summary judgment is required. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact is one that would change the outcome of the litigation. Id. at 247, 106 S.Ct. 2505. “The burden on the moving party may be discharged by ‘showing’—that is, pointing out to the [Court]—that there is an absence of evidence to support the non-moving party's case.” Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed.Cir.1987).

Once the moving party has met its burden, the non-movant may not rest on mere allegations, but must instead proffer specific facts showing that a genuine issue exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Thus, to avoid summary judgment here, Plaintiff (as the non-moving party) must present some objective evidence that would enable the Court to find he is entitled to relief. In Celotex Corp. v. Catrett, the Supreme Court held that, in responding to a proper motion for summary judgment, the party who bears the burden of proof on an issue at trial must “make a sufficient showing on an essential element of [his] case” to establish a genuine dispute. 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In Anderson, the Supreme Court further explained that “the mere existence of a scintilla of evidence in support of the Plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the Plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also Laningham v. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987) (the non-moving party is “required to provide evidence that would permit a reasonable jury to find” in its favor).

DISCUSSIONPrivacy Act Claim

Plaintiff contends that Defendant violated the Privacy Act when it, or its agents, disseminated the video without Plaintiff's consent. Specifically Plaintiff contends that (1) the 4:09 clip was taken from a longer Mini–DV recording that was contained within the DEA's “system of records”; (2) that the 4:09 clip was disclosed onto the Internet; (3) that the disclosure was done willfully and intentionally; and (4) the disclosure was done without Plaintiff's consent.

The Privacy Act as codified in 5 U.S.C. § 552a(b) states in pertinent part:

(b) Conditions of Disclosure. No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless ...

§ 552a(a)(4) of the Act defines a “record” as follows:

(4) the term “record” means any item, collection, or grouping of information about an individual that is maintained by an agency, ... and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;

It is undisputed that Plaintiff did not consent to any disclosure of the video of the Incident.

Remedies for any violation of the Privacy Act is reflected in 5 U.S.C. § 552a(g)(1) provides in pertinent part:

Civil Remedies. Whenever any agency—

* * *

(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect of an individual, the individual may bring a civil action against the agency ...

Further, 5 U.S.C. § 552 a(g)(4) provides the following:

(4) In any suit brought under the provision of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of ––––

(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000, and

(B) the costs of the action together with reasonable attorney fees as determined by the court. [emphasis added]

The Government contends that Plaintiff cannot satisfy the critical elements of his Privacy Act claim. Specifically, the Government contends that Plaintiff (1) cannot establish that the video footage at issue that was publicized on the Internet came from a protected “system of records”; (2) cannot establish that the release of the video was done with an “intentional and willful” mental state; (3) cannot meet the Privacy Act's disclosure provision since the circumstances surrounding the shooting were already in the public domain when the Incident happened in April 2004 and therefore were well before the video started appearing on the Internet in March 2005; and (4) Plaintiff cannot show pecuniary damages and the Privacy Act does not allow recovery for emotional and reputational damages.

In opposition to Defendant's summary judgment motion, Plaintiff contends that someone within Defendant's agency was responsible for disclosing the video to unauthorized parties since it was the DEA that had exclusive possession of the Mini–DV. In support, Plaintiff cites to the production of at least 8 VHS copies, 26 CD/DVD copies, 3 laptop copies as well as numerous unaccounted-for email copies. Plaintiff contends that such disclosure was intentional and willful. And that such disclosures within the DEA that ultimately resulted in the publication of the 4:09 video on the Internet resulted in Plaintiff's primary injury.

A. RETRIEVAL FROM A SYSTEM OF RECORDS

Looking first at whether the Mini–DV was contained within a “system of records”, the record reflects that when a shooting involving DEA personnel occurs, an investigation is initiated by the Office of Inspections (“IN”) upon notification of the shooting incident. In the instant case, IN directed the Orlando District Office to begin the investigation to be supervised by Group Supervisor Peter Gruden. On the week of April 12, 2004, Gruden was directed to create an investigation file which included the Mini–DV. On April 15, 2004, Gruden went on to direct DEA tech personnel to make 4 CD copies of the incident from the Mini–DV. The CDs were each 4 minutes and 9 seconds in length. Gruden also directed two full length VHS copies of the incident to be made as well.

Gruden also wrote up a “Report of Shooting” form. In so doing, Gruden used the file identifier # of GFAO–04–9020. That file number is a DEA general file and not indexed to any particular individual. Further, Gruden sent copies of the 4:09 video to other DEA agents upon their request. Subsequently, Gruden was informed that IN had reconsidered its earlier position and would in fact take over the investigation of the Incident.

April 15, 2004 was the date that IN decided that it would take over the investigation of the Incident. That next day,...

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2 cases
  • Taylor v. Def. Fin. & Accounting Serv.
    • United States
    • U.S. District Court — Eastern District of California
    • 2 Enero 2014
    ...721, 724 (9th Cir. 1987) ("refus[ing] . . . to extend the doctrine to prove an intentional tort"); see also Paige v. U.S. Drug Enforcement Admin., 818 F. Supp. 2d 4, 15 (D.D.C. 2010) ("To the extentPlaintiff relies on the common law tort doctrine of res ipsa loquitur to support a Privacy Ac......
  • Paige v. Drug Enforcement Admin.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 17 Enero 2012
    ...claims. On December 29, 2010, the district court granted summary judgment to the DEA. Paige v. U.S. Drug Enforcement Admin., No. CV 1:06–644, 818 F.Supp.2d 4, 2010 WL 7758769 (D.D.C. Dec. 29, 2010). The court held that Paige failed to establish the elements of his Privacy Act claim—specific......

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