David J. Elkins v. Troy Elenz ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14017
Non-Argument Calendar
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D.C. Docket No. 8:11-cv-02817-SDM-AEP
DAVID J. ELKINS,
Plaintiff-Appellant,
versus
TROY ELENZ,
MICHAEL PALMIOTTO,
ROBERT ROBBINS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 11, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
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David Elkins appeals the district court’s dismissal of his pro se civil rights
complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), the Privacy Act, 5
U.S.C. § 552a, and the Administrative Procedure Act, 5 U.S.C. §§ 702, 706
(“APA”). His complaint stemmed from: (1) alleged aerial surveillance of his car
along a public roadway by defendant Robbins, a Drug Enforcement Administration
agent; and (2) his probation officer requiring him to turn over, on threat of
revocation of probation, a mental health examination Elkins had conducted at his
own expense. The district court granted qualified immunity and dismissed the
constitutional violations and also dismissed the statutory violations for a failure to
state a claim because Elkins did not name an agency defendant.
On appeal, Elkins first argues that the district court should have converted
the defendants’ motion to dismiss into a motion for summary judgment and
considered his supporting affidavits. Second, he argues that the district court erred
in dismissing his constitutional rights claims to be free from aerial surveillance on
a public roadway. Finally, he argues that the district court erred in dismissing his
allegations of violations of the Privacy Act and the APA. After careful review, we
affirm.
I.
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We review de novo a district court’s decision to grant a motion to dismiss,
including whether a district court was required to convert a motion to dismiss into
a motion for summary judgment. See SFM Holdings, Ltd. v. Banc of Am. Sec.,
LLC, 600 F.3d 1334, 1336-37 (11th Cir. 2010); Day v. Taylor, 400 F.3d 1272,
1275-76 (11th Cir. 2005). We also review de novo whether a complaint alleges a
violation of a clearly established constitutional right. St. George v. Pinellas Cnty.,
285 F.3d 1334, 1337 (11th Cir. 2002). We accept the facts alleged in the
complaint as true, draw all reasonable inferences in the plaintiff’s favor, and limit
our review to the four corners of the complaint. Id.“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). A district court
does not need to formally exclude a matter outside of the pleadings if it is clear the
district court did not consider such in its order. See Harper v. Lawrence Cnty.,
Ala., 592 F.3d 1227, 1232 (11th Cir. 2010).
Here, the district court was not required to convert the motion to dismiss
unless it considered material outside of the complaint. Since the district court
dismissed the complaint on its legal merits, it was unnecessary for it to consider the
additional affidavits Elkins submitted. See Harper, 592 F.3d at 1232.
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Accordingly, the district court did not err when it did not convert the motion to
dismiss into a motion for summary judgment.
II.
The Supreme Court has held that federal officials may be sued in their
individual capacities for violations of a person’s constitutional rights. Bivens, 403
U.S. at 397, 91 S. Ct. at 2005. Bivens actions are brought directly under the
Constitution, without a statute providing a cause of action. Hardison v. Cohen,
375 F.3d 1262, 1264 (11th Cir. 2004). However, “qualified immunity shields
governmental officials executing discretionary responsibilities from civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Williams
v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1300 (11th Cir. 2007)
(quotations omitted). When a district court is evaluating a defendant’s Rule
12(b)(6) motion to dismiss based on qualified immunity, it “should grant qualified
immunity if the plaintiff’s complaint fails to allege a violation of a clearly
established constitutional or statutory right.” Id. “The applicable law is clearly
established if the preexisting law dictates, that is, truly compel[s], the conclusion
for all reasonable, similarly situated public officials that what Defendant was doing
violated Plaintiffs’ federal rights in the circumstances.” Evans v. Stephens, 407
F.3d 1272, 1282 (11th Cir. 2005) (alteration in original) (quotations omitted). A
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right must be “clearly established” at the time of the alleged violation. Rehberg v.
Paulk, 611 F.3d 828, 846 (11th Cir. 2010), aff’d on other grounds, 132 S. Ct. 1497(2012).
Multiple courts have found aerial surveillance to be constitutional. Florida
v. Riley, 488 U.S. 445, 109 S. Ct. 693 (1989); United States v. Robinson, 62 F.3d
1325, 1330 (11th Cir. 1995) (holding that aerial surveillance of a home using
thermal imagery was constitutional). Courts have also found little expectation of
privacy in movement along a public thoroughfare. See, e.g., United States v.
Knotts, 460 U.S. 276, 280-82, 103 S. Ct. 1081, 1084-86 (1983). After the
surveillance in this case, the Supreme Court ruled that attaching a GPS device to
the undercarriage of a defendant’s jeep without a warrant constituted a search for
Fourth Amendment purposes, and the evidence obtained by the warrantless use of
the device was properly suppressed. See United States v. Jones, 565 U.S. __, 132
S. Ct. 945 (2012). Because Jones was decided after the challenged actions here, it
did not clearly establish the relevant law.1 We cannot conclude that the district
court erred in holding that there has been no violation of clearly established
constitutional rights.
1
Moreover, Jones did not overrule or disturb the holding in Knotts where the beeper was
installed with consent at a time the container belonged to a third party. See Jones, 565 U.S. at
__, 132 S. Ct. at 952. As in Knotts, the surveillance here did not involve any nonconsensual
attachment of a device, and the surveillance of defendant’s movements occurred only while he
traveled the public highways.
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Probation is a criminal sanction imposed by a court after a finding of guilty.
United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587, 591 (2001).
Probationers “do not enjoy the absolute liberty to which every citizen is entitled.”
Id. (quotation omitted). We have not addressed whether a probation officer can
require a probationer to turn over medical records, without a court order, on threat
of revocation of probation. However, other circuits have addressed this issue to
varying degrees. See, e.g., United States v. Wayne, 591 F.3d 1326, 1332-33 (10th
Cir. 2012) (holding that a district court could require a probationer to submit a
mental health report to the probation office); United States v. Lopez, 258 F.3d
1053, 1057 (9th Cir. 2001) (holding that the release of mental health records was
permissible to ensure compliance with conditions of supervised release); Jarvis v.
Wellman, 52 F.3d 125, 126 (6th Cir. 1995) (holding that a disclosure of a
plaintiff’s medical records did “not rise to the level of a breach of a right
recognized as ‘fundamental’ under the Constitution. Because disclosure of
plaintiff’s medical records did not violate a constitutional right, it follows that
defendants were entitled to qualified immunity”).
The district court correctly granted qualified immunity and dismissed the
constitutional claims. At the time of the alleged violations, there was no clearly
established right to be free from aerial surveillance on a public roadway or
electronic surveillance tracking only location. See Williams, 477 F.3d at 1300;
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Rehberg, 611 F.3d at 846. Similarly, in the absence of clearly established
procedures for requesting and obtaining medical records from a probationer, the
actions taken in this case could not have violated a “clearly established” right to be
free from such under the Fourth and Fifth Amendments.
III.
To state a claim under the Privacy Act, a plaintiff must allege: (1) that the
government failed to fulfill its record-keeping obligation, (2) which failure
proximately caused the adverse determination, (3) that the agency failed
intentionally or willfully to maintain the records, and (4) that the plaintiff suffered
actual damages. Perry v. Bureau of Prisons, 371 F.3d 1304, 1305 (11th Cir. 2004)
(quotation omitted) (internal quotation marks omitted). Similarly, under the terms
of the APA, a claimant “must direct its attack against some particular ‘agency
action’ that causes harm.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891, 110 S.
Ct. 3177, 3190 (1990).
Elkins’s Privacy Act and APA claims must fail. Elkins did not name a
defendant agency in his complaint, as amended, and he did not request permission
from the district court to amend the complaint further. See Perry, 371 F.3d at
1305. He has not identified an intentional or willful failure to maintain records,
nor has he identified an agency action that has caused him harm. See id.7
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Accordingly, the district court correctly dismissed any claim based on the Privacy
Act or the APA.
IV.
After a thorough review of the record and the parties’ briefs, we affirm.
AFFIRMED.
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