Corbin Thomas v. Manisha Seth

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-18-2009
Corbin Thomas v. Manisha Seth
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3880
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CLD-111 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3880
___________
CORBIN THOMAS,
Appellant
v.
MANISHA SETH; JOSEPH MCGETTIGAN;
DARREN HOWARD; UNITED STATES ATTORNEY’S OFFICE;
FEDERAL DETENTION CENTER - PHILA.
____________________________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 07-02203)
District Judge: Honorable Jan E. Dubois
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 20, 2009
Before: RENDELL, HARDIMAN and GREENBERG, Circuit Judges
(Filed : March 18, 2009)
_________
OPINION OF THE COURT
_________
PER CURIAM
Corbin Thomas filed this pro se action in the Eastern District of Pennsylvania,
alleging violations of federal law with regard to the handling of his prison records. The
District Court granted Appellees AUSA Sheth 1 , AUSA McGettigan, BOP attorney
Howard, the U.S. Attorney’s Office, and FDC-Philadelphia’s motion to dismiss Thomas’
complaint. For the reasons that follow, we will affirm.
Thomas is a federal inmate who was incarcerated at FDC-Philadelphia between
April 27, 2005, and August 27, 2007, while awaiting trial on narcotics and money
laundering charges. On two occasions in March 2007, AUSAs Sheth and McGettigan,
the prosecutors assigned to Thomas’ case, requested and acquired Thomas’ prison records
from FDC-Philadelphia. The records contained, among other things, approximately 1,500
of Thomas’ telephone calls from within the prison. Thomas filed suit, alleging that
Howard and FDC-Philadelphia lacked authority to give, and that Sheth, McGettigan and
the U.S. Attorney’s Office lacked authority to receive, these records per provisions of the
federal Privacy Act, the Stored Communications Act, and the Wiretap Act. We now turn
to those statutes in that order.
Privacy Act, 5 U.S.C. § 551, et seq.
In his complaint, Thomas alleged that the U.S. Attorney’s Office and FDC-
Philadelphia violated § 552a(b) of the Privacy Act, which prevents a government agency
from disclosing “any record which is contained in a system of records by any means of
communication to any person, or to another agency,” barring certain exceptions. An
1
As noted by the District Court, AUSA Manisha Sheth’s name is spelled incorrectly in
the caption.
2
agency’s failure to comply with that provision subjects the agency to civil liability, if the
aggrieved party can demonstrate that he or she was adversely effected by that failure to
comply. See 5 U.S.C. § 552a(g)(1)(D). Here, the District Court correctly found that the
U.S. Attorney’s Office and FDC-Philadelphia’s actions were shielded by exceptions to §
552a(b). See 5 U.S.C. §§ 552a(a)(7), (b)(3), (e)(4), and (j)(2); Privacy Act of 1974, 63
Fed. Reg. 8659-02 (Feb. 20, 1998), 1998 WL 66517. Therefore, Thomas has failed to
state a claim under the Privacy Act.
Stored Communications Act, 18 U.S.C. § 2701, et seq.
Thomas next alleged that each one of the Appellees violated § 2703(c) of the
Stored Communications Act. That provision prevents a “provider of electronic
communication service or remote computing service” from disclosing certain records of
“a subscriber to or customer of such service” to a “governmental entity,” unless the entity
is, for example, acting pursuant to valid warrant, a court order, or the consent of the
“subscriber or customer.” See 18 U.S.C. §§ 2703(c)(1)(A)-(C). As a preliminary matter,
it is most doubtful that FDC-Philadelphia is a “provider of electronic communication
service or remote computing service,” or that Thomas is a “subscriber or customer” of
FDC-Philadelphia, for purposes of the Stored Communications Act. Nonetheless, the
District Court properly found that the Appellees were exempt from liability under the
statute. See 18 U.S.C. §§ 2703(c)(1)(A), (e), 2707(a) and 2707(e). Therefore, Thomas
has failed to state a claim under the Stored Communications Act.
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Wiretap Act, 18 U.S.C. § 2510, et seq.
Finally, Thomas alleged that each of the Appellees violated § 2511(1) of the
Wiretap Act, which proscribes the intentional, unauthorized interceptions and disclosures
of wire, oral and electronic communications. As Thomas concedes, however, he had
given prior consent for FDC-Philadelphia to monitor and record his phone calls. This is
fatal to his claims against Sheth, McGettigan, and Howard. See 18 U.S.C. § 2511(2)(c)
(“It shall not be unlawful under this chapter for a person acting under color of law to
intercept a wire, oral, or electronic communication, where . . . one of the parties to the
communication has given prior consent to such interception”). In addition, the Wiretap
Act exempts the United States, and therefore the U.S. Attorney’s Office and FDC-
Philadelphia, from liability, barring certain conditions not present in this case. See 18
U.S.C. §§ 2520(a) and 2712. Therefore, the District Court correctly found that Thomas
failed to state a claim under the Wiretap Act.
Futility of Amending the Complaint
“[I]n the event a complaint fails to state a claim, unless amendment would be
futile, the District Court must give a plaintiff the opportunity to amend her complaint.”
Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008); see also Alston v.
Parker, 363 F.3d 229, 235 (3d Cir. 2004) (“even when a plaintiff does not seek leave to
amend, if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a
curative amendment, unless an amendment would be inequitable or futile”) (citing
4
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). Because Thomas
cannot circumvent the layers of exemptions from liability in each of the relevant statutes,
and there appearing to be no other statutes applicable to Thomas’ specific grievance, we
are satisfied that it would have been an exercise in futility for the District Court to have
given him leave to amend the complaint.
There being no substantial question presented by Thomas’ appeal, we will
summarily affirm the District Court’s order. See LAR 27.4; I.O.P. 10.6.
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