Barber v. Overton , 496 F.3d 449 ( 2007 )

KENNEDY, J., delivered the opinion of the court. COOK, J. (pp. 458-61), delivered a separate concurring opinion. COLE, J. (pp. 461-66), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KENNEDY, Circuit Judge.

This case involves the Michigan Department of Corrections’ (MDOC) release of several corrections officers’ social security numbers and birth dates to prisoners held at the Ionia Maximum Security Correctional Facility (IMAX), which houses male prisoners who pose an extreme escape risk or who have a clearly demonstrated history of violent acts toward other prisoners and staff. The disclosure occurred in the context of the prison’s investigation into prisoners’ allegations of abuse by corrections officers and the resulting disciplinary hearings. The plaintiffs, IMAX corrections officers, filed a number of claims under 42 U.S.C. § 1983 and Michigan law, and now appeal the district court’s dismissal of several of their § 1983 claims against Overton¹ and Jackson and its grant of summary judgment to defendants Bruce Sibert and Lorenzo Lowery.

1. Background

In 2002, two prisoners accused several corrections officers of sexually assaulting them. Defendant Bruce Sibert investigated the matter on behalf of the prison’s Internal Affairs section. He detailed the results of the investigation and summarized interviews of corrections officers in a report. In accordance with MDOC Internal Affairs² Investigative Manual, p. 18 (March 2002), these summaries contained the officers’ names, social security numbers, and dates of birth.

Sibert concluded from his investigation that the allegations were baseless. In light of his findings, MDOC charged the accusing prisoners with “interference with administrative rules,” a major misconduct charge that entitled the prisoners to a hearing. Prior to the hearing, defendant Lorenzo Lowery gathered information, including Sibert’s Internal Affairs report.

Defendant Fritz Jackson, the hearing officer, reviewed the documents Lowery had collected and found the prisoners guilty of major misconduct. Jackson testified in his deposition that Lowery had marked sections of the report for possible redaction on pages 5 and 20 (and in the appendix). These sections related to two prisoner informant witnesses. Jackson ordered these items redacted; he was the only person with authority to order redac-tions.

Following the hearing, the prisoners appealed the charges and requested the information on which Jackson’s ruling relied. Lowery then physically redacted the informant’s identifying Information in the Internal Affairs report in accordance with Jackson’s rulings, stamping each page with a statement identifying that it was being delivered to the prisoner. Because it was not marked for possible redaction, and thus was not ruled on by Jackson, Lowery did not redact the officers’ personal information. The name, birth date, and social security number of each officer appeared in a caption identifying each officer’s statement, rather than in Sibert’s summary of the that officer’s statement. If noticed, this information would be exempt from release and would not have been given to prisoners under internal prison policy and the department’s Freedom of Information Act (FOIA) policy. Lowery stated in an affidavit that if he had noticed the social security numbers he would have removed them. Nonetheless, Lowery delivered the report, including the officers’ personal information, to the prisoners via institutional mail as part of the hearing packet.

With this personal information in hand, IMAX prisoners began to torment the officers. As the plaintiffs’ complaint explains, prisoners have threatened and taunted the officers, often incorporating the plaintiffs’ social security numbers (which they have committed to memory) into the taunts. Some prisoners wrote the social security numbers of some of the plaintiffs on slips of paper that they threw out of their cells. Others incorporated one officer’s number into a death threat they wrote on a prison wall. More importantly, using the social security numbers the prisoners obtained other confidential information, including the plaintiffs’ home addresses and discovered the names of their family members, including their children. Prisoners have even accurately described plaintiffs’ children to them. In addition, prisoners discovered plaintiff Melissa Barber’s social security number — apparently using the number of her husband, Steven Barber. Prison officials intercepted in prison mail photos of Melissa Barber’s house and car, apparently taken by a prisoner’s accomplice outside the prison.

Plaintiffs Melissa Barber, Steven Barber, David Hall, Paul Jensen, Jennifer Kula-Hauk, Steven Pettit, and Troy Huiz-ing filed suit in the Western District of Michigan, naming as defendants William Overton, Director of the Michigan Department of Corrections, in his official capacity, and Fritz Jackson, Lorenzo Lowery, and Bruce Sibert in their individual and official capacities. The district court dismissed the plaintiffs’ claims against Fritz Jackson because it found he was entitled to . absolute judicial immunity. Subsequently, the court granted summary judgment to defendants Sibert and Lowery on the plaintiffs’ 42 U.S.C. § 1983 claims, holding that they are entitled to qualified immunity. Further, it dismissed Melissa Barber’s § 1983 claims, finding she lacked standing. Because it concluded defendants did not violate the plaintiffs’ constitutional rights, the court also denied the plaintiffs’ request for injunctive relief under § 1983. The plaintiffs then filed this appeal.³

II. Defendant Jackson

The district court dismissed the plaintiffs’ claim against Hearing Officer Jackson pursuant to Fed.R.Civ.P. 12(b)(6) because it concluded Jackson is entitled to absolute judicial immunity. We review a dismissal under Rule 12(b)(6) de novo. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996).

In granting Jackson absolute immunity, the district court relied on Shelly v. Johnson, 849 F.2d 228 (6th Cir.1988), which held that a Michigan hearing officer was entitled to absolute judicial immunity for actions taken in his hearing-officer capacity, and on Mich. Comp. Laws § 791.252(h), which grants a Michigan hearing officer the authority to deny access to evidence that may be dangerous to a witness or disruptive to normal prison operations. The plaintiffs contend that this ruling ignores the role that Jackson played in this case, one they cast as a FOIA Coordinator, rather than a hearing officer.⁴ The plaintiffs claim that the “functional approach” to judicial immunity discussed by this court in Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir.1989), counsels against absolute immunity for Jackson. Achterhof recognizes that this circuit’s approach to absolute immunity distinguishes “between prosecutorial and judicial duties and duties which are administrative or investigatory.” 886 F.2d at 829. The plaintiffs’ attempts to cast Jackson’s role as administrative are not persuasive, however.

The plaintiffs argue that Jackson was “functionally performing the actions of any administrator responding to an information request.” Pointing to Michigan Policy Directive 01.06.110, section III.L, the plaintiffs contend that Jackson’s role was that of an administrative processor of prisoner requests. They contend that the following language from that directive supports this view: “Upon request, prisoners shall be provided with a copy of their hearing investigation for any formal hearing, except those documents which have been determined by the hearing officer to be confidential.” This instruction, however, does not transform Jackson’s role. As Jackson’s and Lowery’s depositions confirm, Lowery as Hearing Investigator was responsible for processing requests for information, not Jackson. Jackson, as Hearing Officer, makes final decisions about what information should be released, but he does not act as an administrator facilitating the process. In fact, Jackson’s role is completely separate from the request process, as he never sees the prisoners’ requests, nor does he play any role in delivering the documents. Though Jackson’s role has him concerned with the department’s FOIA policy, it is better viewed as an exercise of his hearing-officer authority. He performs a judicial function when he reviews the prison administration’s request (prepared by Lowery) to redact portions of the state’s basis for charging the prisoners with major misconduct. Determining what materials prisoners are entitled to receive as part of their due process hearing is a judicial function. We hold the district court did not err in construing Jackson’s action as judicial, rather than administrative, and in granting Rule 12(b)(6) dismissal.

III. Defendants Lowery and Sibert

Plaintiffs also challenge the district court’s finding that Lowery and Sibert are entitled to qualified immunity. We review such a determination de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000).

a. Legal Framework

Qualified immunity involves a two-fold inquiry: First, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? ... [T]he next, sequential step is to ask whether the right was clearly, established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

Section 1983 actions also involve a two-part analysis: As with the qualified immunity inquiry, the plaintiff must suffer a deprivation of a federal constitutional or statutory right. In addition, that violation must be caused by a person acting under the color of state law. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005). “The Due Process Clause of the Fourteenth Amendment does not impose upon the state an affirmative duty to protect its citizens against private acts of violence, but rather, places limitations on affirmative state action that denies life, liberty, or property without due process of law.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1065 (6th Cir.1998). That is, the Fourteenth Amendment does not (in the ordinary case) provide private citizens a right to be free from prisoner abuse if those prisoners are not acting under the color of state law.⁵ Since Lowery and Sibert did not themselves threaten the plaintiffs or subject them to acts of violence, they would not normally be liable under § 1983. However, in Kallstrom we noted an exception: A section 1983 plaintiff could circumvent the state action requirement if he demonstrated that the state created a special danger.

Thus the state created danger doctrine, on which plaintiffs heavily rely, is properly understood as a caveat to the color of state law requirement. “In other words, while the state does not shoulder an affirmative duty to protect its citizens from acts of violence, it may not cause or greatly increase the risk of harm to its citizens without due process of law through its affirmative acts.” Kallstrom, 136 F.3d at 1066. As indicated by Kallstrom, state created danger is not predicated upon but-for causation; rather it is more akin to the notion of proximate causation. Our cases have spoken in terms of “creating risk” or “greatly increasing risk,” rather than in terms of “causing harm.” Thus, we have developed a three-part test: “an affirmative act that creates or increases the risk, a special danger to the victim as distinguished from the public at large, and the requisite degree of state culpability.” McQueen v. Beecher Comty. Schs., 433 F.3d 460, 464 (6th Cir.2006). As to the first part, we have noted that the increase in risk must be substantial. See, e.g., Summar v. Bennett, 157 F.3d 1054, 1059 n. 2 (6th Cir.1998). As to the third, the requisite culpability in this circumstance, i.e. one that “provide[d] opportunity for reflection and unhurried judgments,” McQueen, 433 F.3d at 469, is deliberate indifference.

Because of the majority of the Supreme Court’s insistence on addressing qualified immunity at the outset, Saucier, 533 U.S. at 200, 121 S.Ct. 2151, we apply the following analysis in a case that invokes both qualified immunity and a § 1983 action predicated on the state created danger doctrine: First, identify the constitutional right and determine whether it has been violated. Second, determine whether that right was, at the time the violation occurred, clearly established. Third, determine whether the actor violating the right was acting under color of state law, that is, whether the state actor created or greatly increased a danger that was specific to the plaintiffs and did so with deliberate indifference. Because we conclude that no constitutional violation occurred, we will omit the second and third steps.

b. Constitutional Violation

First we must determine whether the states are required, by the Constitution, to keep plaintiffs’ social security numbers and dates of birth private. Plaintiffs rely on Kallstrom, claiming that the state’s release of this private information exposed them to a serious risk of bodily harm or death at the hands of the informationally-empowered prisoners. This risk, they argue, implicates their liberty interest in personal security under the substantive component of the due process clause. A cursory examination of Kallstrom, however, indicates that that case did not define a right that would entitle plaintiffs to relief here.

In Kallstrom, the plaintiffs were City of Columbus police officers involved in an undercover investigation of “the Short North Posse, a violent gang in the Short North area of Columbus, Ohio.” Kallstrom, 136 F.3d at 1059. Forty-one of the gang members were prosecuted and the plaintiffs, three undercover police officers, testified at their trials. On request, the City of Columbus deliberately released the plaintiffs’ personnel files to the attorney of several gang members in accordance with the city’s written policy. These files included:

the officers’ addresses and phone numbers; the names, addresses, and phone numbers of immediate family members; the names and addresses of personal references; the officers’ banking institutions and corresponding account information, including account balances; their social security numbers; responses to questions regarding their personal life asked during the course of polygraph examinations; and copies of their drivers’ licenses, including pictures and home addresses.

Id.

The district judge granted a temporary-restraining order prohibiting release of the files, but refused to enter a permanent injunction when it concluded that this circuit had “ ‘steadfastly refused to recognize a general constitutionally-protected right to privacy that would shield an individual from government release of personal information about the individual.’ ” Id. at 1060 (quoting Dist. Ct. Op. at 4). The officers appealed.

This court canvassed the law regarding the substantive due process right to privacy. It noted that this right was bifurcated, including not only the right to be free of state interference when making decisions of important and intimate personal matters, see, e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), but also the right to avoid state disclosure of highly personal matters, see, e.g., Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). In this circuit, this latter privacy right to nondisclosure (the only right relevant here), has been construed narrowly, J.P. v. DeSanti, 653 F.2d 1080, 1091 (6th Cir.1981), only protecting citizens from disclosure when the circumstances implicate “personal rights that can be deemed fundamental or implicit in the concept of ordered liberty.” Id. at 1090 (citations and quotation marks omitted).

It is here that the Kallstrom court broke new ground. It held that the officers’ privacy interest implicated an important liberty interest; to wit, an interest in preserving their and their families’ personal security and bodily integrity. That is, it held that the released information was sensitive enough to put their lives at risk. This liberty interest was implicated for two reasons: (1) the gang members had a propensity for violence and intimidation and (2) those members were likely to seek revenge. However, the court explicitly limited its holding:

[T]he district court found that the City’s release of the plaintiffs-appellants’ addresses, phone numbers, and driver’s licenses to defense counsel ... as well as their family members’ names, addresses, and phone numbers, created a serious risk to the personal safety of the plaintiffs and those relatives named in the files.... The district court did not make any explicit findings with respect to whether disclosure of the remaining personal information contained in the officers’ personnel files — results of the polygraph tests, social security numbers, and financial account information — put the officers at substantial risk of serious bodily harm. On remand, the district court should consider the extent to which the release of this information jeopardized the officers’ personal security, and whether the threat, if any, implicated the officers’ constitutionally protected interests in privacy and bodily integrity.

Id. at 1063, 1063 n. 2 (emphasis added). We note also, as far as our research can divine, that this combination of privacy right violation and state created danger claim is virtually unique among courts of appeals.⁶ In addition, the disclosure here only provided a means of acquiring the kind of sensitive information directly disclosed in Kallstrom; acquiring the sensitive information required an additional wrongful act by the prisoners.

We belabor the discussion of Kallstrom to emphasize what it did not do: It did not create a broad right protecting plaintiffs’ personal information. Rather, Kallstrom created a narrowly tailored right, limited to circumstances where the information disclosed was particularly sensitive and the persons to whom it was disclosed were particularly dangerous visa-vis the plaintiffs. We cannot conclude that social security numbers and birth dates are tantamount to the sensitive information disclosed in Kallstrom. The court’s careful footnote in that case, instructing the district court on remand, should put that to rest. If mere disclosure of social security numbers were sufficient then there was no need for the remand. In addition, Kallstrom did not restrict any private information from disclosure to anyone in any circumstances, but rather only certain restricted information when the plaintiffs had a reason to fear retaliation from persons to whom it was disclosed.

In light of our narrow reading of the substantive due process right to non-disclosure privacy, we conclude that the release of the social security numbers was not sensitive enough nor the threat of retaliation apparent enough to warrant constitutional protection here.⁷ First, scary though it may be, the diligent miscreant who wishes to exact vengeance can locate a person with limited information. Plaintiffs’ names, general whereabouts (near the IMAX facility), and approximate ages were already known to these prisoners. While the social security numbers and birth dates might have pinpointed the residence of a particular plaintiff, there are other methods of learning where persons reside; several hours in a car or several telephone calls might well provide the very same information. Voter registration records, county property records, and a plethora of other publically available sources exist through which persons can discover the residency of an individual and prisoners’ accomplices have as ready access to them as any other citizen. The plaintiffs do not allege that this information allowed the prisoners to discover information that they would have been unable to otherwise. Therefore, this information does not rise to the level of sensitivity we found constitutionally significant in Kallstrom.⁸

Second, while there is can be no doubt that plaintiffs have a dangerous job, their relationship to the prisoners is not defined by the clear animosity apparent in Kallst-rom where the plaintiffs had gone undercover, infiltrated a violent gang, and testified against them at trial. While we do not condone nor indicate that we consider in any way prudent the release of the information to these prisoners, we also must remember that the right we created in Kallstrom was exceeding narrow. The relationship here is not sufficiently analogous.

Finally,

[o]ur opinion does not mean that we attach little significance to the right of privacy, or that there is no constitutional right to nondisclosure of private information .... Our opinion simply holds that not all rights of privacy or interests in nondisclosure of private information are of constitutional dimension, so as to require balancing government action against individual privacy. As with the disclosure in Paul v. Davis, [424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976),] protection of appellants’ privacy rights here must be left to the states or the legislative process.

DeSanti, 653 F.2d at 1090-91.

Since we find that no right was violated, we need not engage in the weighing analysis laid out in DeSanti, 653 F.2d at 1090-91, and its progeny.

IV. Melissa Barber’s Standing

Plaintiff Melissa Barber challenges the dismissal of her claim for lack of standing. In its dismissal, the district court relied on Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir.2000), which held that a § 1983 claim is “entirely personal to the direct victim of the alleged constitutional tort.” Claybrook examined whether relatives or dependents of a constitutional-tort victim could bring claims for “emotional distress, loss of a loved one, or any other consequent collateral injuries allegedly suffered personally by the victim’s family members.” Id. (citations omitted). Her claim is different, Barber argues, because her injuries are not caused by her husband’s injury; rather, the state’s disclosure enabled the prisoners to learn her personal information, which the prisoners then used to inflict injuries directly upon her. This fails to defeat Claybrook's rule, however, because the alleged constitutional tort in this case is the state’s release of her husband’s private information. See Kallstrom, 136 F.3d at 1059. Barber cannot point to an affirmative act committed by the government which violated her constitutional rights. Although she can trace her injury to the government’s release of her husband’s information, this does not render her a direct victim for purposes of bringing a § 1983 claim. Because Melissa Barber’s information was not released by the state, the state did not violate her constitutional rights, and she therefore cannot proceed under § 1983.

Her rejoinder — that the state-created-danger doctrine cures this deficiency — is unavailing. The state-created-danger doctrine does not create a constitutional right that Barber may employ in a § 1983 action; instead, it permits plaintiffs who have suffered constitutional harms inflicted by third parties who were facilitated by the government’s affirmative acts to satisfy the state-action requirement of § 1983. The doctrine does not confer standing on anyone injured as a result of the government’s violation of another person’s rights, no matter how interrelated the harms suffered. We affirm the district court’s dismissal of Melissa Barber’s § 1983 claim.

Y. Conclusion

Therefore, the judgment of the district court is AFFIRMED.

1 . Plaintiffs appeal a district court order that granted summary judgment in favor of Over-ton, but do not pursue their claims against him here. Therefore, we consider those claims waived.

2 . Internal Affairs handles investigations of allegations against employees of MDOC. Generally, unless "involved in felonious conduct [in] conspiracy] with an employee,” MDOC Policy Directive 01.01.140(G), prisoners do not fall under Internal Affairs' jurisdiction.

3 . The court also dismissed the suit for damages against defendant Overton in his official capacity, but plaintiffs do not challenge that decision on appeal.

4 . There is some ambiguity whether the state's release of these documents to prisoners is actually done under the dictates of FOIA. Section III.I of Michigan Department of Corrections Policy Directive 01.06.110 directs that ‘'[pjrisoners shall not be entitled to receive or inspect documents under the FOIA." Section III J, however, states, “Although prisoners shall not be entitled to receive or inspect documents under the FOIA, they shall continue to receive copies of appropriate forms when they are generated (e.g. major misconduct reports; administrative hearing reports; security classification screens; notices of parole board action; time review and disposition forms).” The district court addressed the issue as follows:

A review of the prisoner’s request for hearing materials, however, reveals that their request was not made pursuant to FOIA.... Moreover, the Department’s FOIA policy states that prisoners are not entitled to receive documents under FOIA and such requests are summarily denied .... The Court recognizes that the Department FOIA policy does permit a prisoner to request a copy of their hearing investigation materials.

Dist. Ct. Mem. Op. and Order at 3 (Dec. 2, 2004). We decline to resolve this ambiguity because the nature of FOIA’s application to prisoner requests does not change the outcome of the absolute immunity analysis. Because the plaintiffs cannot show that Jackson was acting as a "FOIA Coordinator” as they contend, his actions were judicial, not administrative, and whether FOIA applies matters not.

5 . Prisoners might, for example, act under col- or of state law when they are performing services on behalf of the prison.

6 . No other circuit has explicitly held that a breach of a plaintiff's right to privacy could implicate a claim predicated on a state created danger theory. See, e.g., Frances-Colon v. Ramirez, 107 F.3d 62 (1st Cir.1997) (baby mishandled and injured during delivery at municipal hospital); Dwares v. City of New York, 985 F.2d 94 (2d Cir.1993) (protestor attacked and beaten by skinheads who were enabled by police); Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.1996) (drunken pedestrian suffered debilitating brain injury during fall after police declined to arrest her for public intoxication); Pinder v. Johnson, 54 F.3d 1169 (4th Cir.1995) (plaintiff's children killed in a fire set by her boyfriend); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir.1994) (high school student killed by a nonstudent); Stevens v. Umsted, 131 F.3d 697 (7th Cir.1997) (disabled student sexually assaulted by another student); S.S. ex rel. Jervis v. McMullen, 225 F.3d 960 (8th Cir.2000) (child sodomized by pedophile); L.W. v. Grubbs, 974 F.2d 119 (9th Cir.1992) (nurse at prison raped by an inmate); Armijo ex rel. Chavez v. Wagon Mound Pub. Schs., 159 F.3d 1253 (10th Cir.1998) (special education student at public school committed suicide); Wyke v. Polk County Sch. Bd., 129 F.3d 560 (11th Cir.1997) (plaintiff's son committed suicide); but see Hart v. City of Little Rock, 432 F.3d 801 (8th Cir.2005) (in a case factually similar to Kallst-rom, the court assumed, without deciding, that plaintiffs constitutional right to privacy was violated but denied relief because the state actor did not possess the requisite culpability for a § 1983 claim).

7 . The dissent criticizes us for holding, "as a matter of law,” "that social security numbers [] are not sufficiently sensitive,” Cole Op., post at 462. That is not our holding as that question is not before us. Rather, our holding concerns the interplay between both the sensitivity of the information and the threat of retaliation. We express no opinion whether either of these factors, taken alone, would distinguish Kallstrom.

8 . On remand from Kallstrom, several news organizations intervened in an attempt to require the City of Columbus to turn over certain information from the officers’ personnel records for an investigation the news organizations were conducting. Therefore, the district court was asked to determine which specific pieces of information implicated the Constitution. Recognizing the propriety of our holding in Kallstrom, it noted that ''[aid-dresses are part of the public domain. Anyone with an individual’s name and either Internet access or the initiative to visit a local government office can scan county property records, court records, or voter registration records for such information as an individual’s address, the exact location of his or her residence, and even a floor plan of the home. The Supreme Court has found that 'the interests in privacy fade when the information involved already appears on the public record.’ In this case, plaintiffs have voluntarily revealed their own identities. For instance, plaintiffs initiated this lawsuit in their own names and describe their profession in the pleadings as 'undercover narcotics officers.' " Kallstrom v. City of Columbus, 165 F.Supp.2d 686, 695 (S.D.Oh.2001) (quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494-95, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975)).