Wurzelbacher v. Jones-Kelley

• Citation: 675 F.3d 580
• Decision Date: 27 March 2012
• Docket Number: No. 10–4009.,10–4009.
• Parties: Samuel Joseph WURZELBACHER, Plaintiff–Appellant, v. Helen E. JONES–KELLEY; Fred Williams; Doug Thompson, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

675 F.3d 580

Samuel Joseph WURZELBACHER, Plaintiff–Appellant,

v.Helen E. JONES–KELLEY; Fred Williams; Doug Thompson, Defendants–Appellees.

No. 10–4009.

United States Court of Appeals, Sixth Circuit.

Argued: March 7, 2012.Decided and Filed: March 27, 2012.

ARGUED: James F. Peterson, Judicial Watch, Inc., Washington, D.C., for Appellant. Anne Berry Strait, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees. ON BRIEF: James F. Peterson, Paul J. Orfanedes, Judicial Watch, Inc., Washington, D.C., David R. Langdon, Joshua B. Bolinger, Cincinnati, Ohio, for Appellant. Anne Berry Strait, Rebecca L. Thomas, Peggy W. Corn, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees.Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Plaintiff Samuel Joseph Wurzelbacher appeals the dismissal of his 42 U.S.C. § 1983 civil rights action alleging First Amendment retaliation and violation of his informational right to privacy. We affirm.

I.

The undisputed facts, as summarized by the district court, are as follows:

[Wurzelbacher] is an individual and resident of the State of Ohio. He was trained as a plumber by the United States Air Force, and, until recently, was employed by a small plumbing business near Toledo, Ohio. Defendant Helen Jones–Kelley was the Director of the Ohio Department of Job and Family Services (“ODJFS”). Defendant Fred Williams was the Assistant Director of ODJFS. Defendant Doug Thompson was the Deputy Director of Child Support within ODJFS.

On October 12, 2008, President Barack Obama, then Senator and presidential candidate, appeared on [Wurzelbacher]'s street while campaigning. [Wurzelbacher] joined the crowd and asked several questions of President Obama related to the impact that the President's tax plan would have on [Wurzelbacher]'s ability to purchase a small business. The questions posed by [Wurzelbacher] were recorded by the media, and replayed later on stations across the country. After his exchange with President Obama, [Wurzelbacher] received and accepted numerous requests from the media to speak about his views of the President, and, in those appearances, criticized President Obama's policies. During the third presidential debate, Senator John McCain referred to [Wurzelbacher]'s questions, and referred to [Wurzelbacher] as “Joe the Plumber.” After the debate, [Wurzelbacher] continued to appear in the national media.

At all times relevant to [Wurzelbacher]'s claims, [d]efendants were the three highest-ranking officials at ODJFS. The ODJFS administers state programs including child support enforcement, the Temporary Aid to Needy Families (“TANF”) cash assistance program, and unemployment compensation. As part of these programs, ODJFS maintains confidential databases including: the Support Enforcement Tracking System (“SETS”) for child support enforcement; the Client Registry Information System Enhanced (“CRIS–E”) for records under the TANF program; and the Ohio Job Insurance (“OJI”) database, which contains unemployment benefit records. The Ohio Revised Code sections 5101.26 through 5101.30, and the Ohio Administrative Code Chapter 5101, section 1–1–03, govern the confidentiality and disclosure rules of these databases. [Wurzelbacher] alleges that ODJFS personnel are only permitted to access the databases to carry out official agency business, and that prior to being permitted to access the databases, ODJFS employees are trained in areas related to confidentiality, safeguarding guidelines, and security procedures.

[Wurzelbacher] alleges that on October 16, 2008, four days after [his] interaction with President Obama, [d]efendants had a meeting at which they discussed “Joe the Plumber.” Defendant Jones–Kelley then authorized searches related to [Wurzelbacher] on the SETS, CRIS–E, and OJI databases. After the meeting, [d]efendant Thompson directed an agency employee to conduct an inquiry regarding [Wurzelbacher] in the SETS database, and [d]efendant Williams directed an agency employee to conduct a search related to [Wurzelbacher] in the CRIS–E database. The agency employee who searched the CRIS–E database then contacted another employee to search the OJI database. The [c]omplaint alleges that all three searches took place on October 16, 2008, that these searches were not related to any official agency business, and that [d]efendants authorized and directed the searches for the purpose of retrieving information on [Wurzelbacher] because of [his] interaction with President Obama and his subsequent media appearances.

Defendants were supporters of President Obama's campaign, and [d]efendant Jones–Kelley donated to the President's campaign, was a fundraiser, and volunteered to arrange a campaign event for First Lady Michelle Obama.

[Wurzelbacher] alleges that after the [d]efendants authorized and conducted searches in the databases, the Office of the Ohio Inspector General (“OIG”) conducted an investigation and found “no legitimate agency function or purpose for checking on [Wurzelbacher's] name through SETS, CRIS–E, and OJI or for authorizing those searches.” (Compl. at 30.) The OIG allegedly specifically found that: [d]efendant Jones–Kelley's authorization was not appropriate and that she committed a wrongful act by authorizing the searches; [d]efendant Thompson instructed an agency employee to send an email to another agency official telling that official that the search was for an agency purpose; and that the email was an attempt to deceive as there was no agency purpose. Separately from the inquiry as to the search of [Wurzelbacher]'s name, the OIG allegedly found that [d]efendant Jones–Kelley used state resources to engage in political activity for President Obama's campaign, and that those political activities were an inappropriate use of state resources. After the OIG report was issue[d], Ohio Governor Ted Strickland suspended [d]efendants from their positions. Allegedly, [d]efendant Jones–Kelley resigned her position prior to the end of her suspension, [d]efendant Williams resigned effective January 31, 2009, and [d]efendant Thompson was terminated from his position prior to the end of his suspension.

Wurzelbacher v. Jones–Kelley, 728 F.Supp.2d 928, 930–31 (S.D.Ohio 2010).

Wurzelbacher filed his complaint on March 5, 2009, alleging First Amendment retaliation and violation of his privacy rights. Thereafter, defendants moved for judgment on the pleadings, which was granted on August 4, 2010. This timely appeal followed.

II.

We review a district court's grant of judgment on the pleadings under Federal Rule of Civil Procedure 12(c) using the same de novo standard of review applicable to orders of dismissal under Rule 12(b)(6). Tucker v. Middleburg–Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir.2008). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Id. (internal quotation marks and citation omitted).

Under 42 U.S.C. § 1983, an individual may bring a private cause of action against anyone who, under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statute. Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). In this case, Wurzelbacher alleges violations of his First and Fourteenth Amendment rights. We address each claim below.

III.

Wurzelbacher asserts that defendants conducted improper database searches in retaliation for his protected speech of asking a question of a presidential candidate. In order to adequately plead a First Amendment retaliation claim, a plaintiff must allege:

(1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by the plaintiff's protected conduct.

Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir.2005) (citing Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc)). In this case, the district court held that Wurzelbacher failed to allege a sufficient “adverse action” to survive defendants' motion for judgment on the pleadings. We agree.

“The term ‘adverse action’ arose in the employment context and has traditionally referred to actions such as ‘discharge, demotions, refusal to [hire], nonrenewal of contracts, and failure to promote.’ ” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 724 (6th Cir.2010) (quoting Thaddeus–X, 175 F.3d at 396). In the First Amendment context, however, we have held that “any action that would deter a person of ordinary firmness from exercising protected conduct will [constitute a sufficient adverse action], which may include harassment or publicizing facts damaging to a person's reputation.” Id. Whether an alleged adverse action is sufficient to deter a person of ordinary firmness is generally a question of fact. Bell v. Johnson, 308 F.3d 594, 603 (6th Cir.2002). Nevertheless, when a plaintiff's alleged adverse action is “inconsequential,” resulting in nothing more than a “de minimis injury,” the claim is properly dismissed as a matter of law. Id. at 603, 606. Indeed, it “trivialize[s] the First Amendment to allow plaintiffs to bring ... claims for any adverse action[,] no matter how minor.” Id. at 603 (internal quotation marks and citation omitted) (emphasis in original).

In this case, we hold that the adverse action pleaded by Wurzelbacher is insufficient to create a cause of action. He asserts that defendants, without his knowledge, performed several improper database searches under his name. However, the complaint contains no information regarding what, if any,...