United States District Court, N.D. Ohio, Eastern Division
Holly L. Thacker, M.D., Plaintiff,
Cuyahoga Heights Board of Education, Defendants.
MEMORANDUM OPINION AND ORDER
C. NUGENT United States District Judge.
matter is before the Court on the Motion of Defendants
Cuyahoga Heights Board of Education and the Cuyahoga Heights
Local School District to Dismiss the Complaint pursuant to
Fed.R.Civ.P. 12(b)(6). (ECF #10) Since the filing of the Motion
to Dismiss Plaintiffhas filed a Notice of Voluntary
Dismissal, dismissing the School District without prejudice
pursuant to Fed.R.Civ.P. 41(a)(1). (ECF #50) The motion is
fully briefed and ready for decision.
Dr. Holly Thacker, has been a member of the Cuyahoga Heights
Board of Education (the "Board") since January
2010. She was elected to the role of President of the Board
in January 2016. Dr. Thacker's three children attended
and graduated from the Cuyahoga Heights Local School District
("CHLSD" or "School District"). Dr.
Thacker alleges that she began emailing CHLSD as a parent
around 2003. In early 2011, Dr. Thacker brought evidence to
the authorities which started an investigation into an
embezzlement scheme that resulted in federal convictions.
(Compl. ¶ 14) As a result of the clean-up after the
embezzlement there has been turnover of several Board of
Education members and the Superintendent. Defendant Thomas
Evans, was placed on administrative leave on August 2, 2016
to investigate allegations against him. as well as
allegations against former School District treasurer
Defendant Joy Clickenger and former District employee
Defendant Kathy Martin. (Compl. ¶ 15). Plaintiff asserts
that Board member Defendant Melynda Schuckert has called for
the resignation of certain Board members. including Dr.
after January 2016, Defendant Schuckert made a public records
request for all business related emails to or from Dr.
Thacker and others. (Compl. ¶ 17) On February 3. 2016,
her last day of work, Defendant Joy Clickenger, who was
responsible for the proper dissemination of public records,
directed Defendant David Wallis, the District's IT
director, to collect the requested emails and to disseminate
emails from 2003 and forward to the public without regard to
the content or subject of the emails. (Compl. ¶¶
11. 18) Mr. Wallis ran a search of all emails from Dr.
Thacker and others that were contained on the Board of
Education/School District servers and created links which he
forwarded to Ms. Clickenger. Plaintiff alleges that none of
the individual defendants complied with Board policy
regarding public records requests. (Comp. ¶ 19)
Plaintiff further alleges that the emails were turned over by
the individual defendants, in their individual and official
capacities, without any review, to Board member Schuckert who
then turned the emails over to members of the public. (Compl.
upon these allegations, Plaintiffs asserts claims of
violation of the Stored Communications Act ("SCA"),
18 U.S.C. § 2701 (Count One) and violation of the Wire
Tap Act, 18 U.S.C. § 2511 (Count Two) against all of the
individual Defendants and the Board. Plaintiff alleges that
the Board would be liable for violation of both federal
statutes under a theory of respondent superior. Plaintiff
also asserts state law claims of Invasion of Privacy (Count
Three) and Civil Conspiracy. (Count Four). In her opposition
to the Board's Motion to Dismiss, Plaintiff clarifies
that she is not asserting the state law claims against the
Board. Thus, the only claims asserted against the Board are
the violations of the federal Wire Tap Act and the Stored
Communications Act based upon a theory of respondent
evaluating a motion to dismiss, the court must construe the
complaint in the light most favorable to the plaintiff,
accept its factual allegations as true, and draw reasonable
inferences in favor of the plaintiff. See Directv Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
The complaint need not contain detailed factual allegations,
but it must include more than labels, conclusions, and
formulaic recitations of the elements of a cause of action.
Id. "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Ashcrofi v. Iqbal 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing
Twombly, 550 U.S. at 555).
survive a motion to dismiss under Rule 12(b)(6), a complaint
must allege facts that "state a claim to relief that is
plausible on its face, " and that, if accepted as true,
are sufficient to "raise a right to relief above the
speculative level." Twombly, 550 U.S. at 555,
570. "The plausibility standard is not akin to a
'probability requirement, " but it asks for more
than a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. 678. "A claim
is plausible on its face if the 'plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.' " Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano. 648 F.3d 365, 369 (6th Cir.2011), cert,
denied, 132 S.Ct. 1583. (2012) (quoting Iqbal
556 U.S. at 677). Where a complaint pleads facts that are
merely consistent with a defendant's liability, it
"stops short of the line between possibility- and
plausibility of'entitlement to
relief."?" Iqbal. 556 U.S. at
678 (quoting Twombly 550 U.S. at 557).
motion brought under Rule 12(b)(6). the court's inquiry
is limited to the content of the complaint, although matters
of public record, orders, items appearing in the record of
the case, and exhibits attached to the complaint may also be
taken into account. See Bassett v. Nat'l
Collegiate Athletic Ass 'n. 528 F.3d 426, 430
(6th Cir. 2008); Amini v. Oberlin
College, 259 F.3d 493, 502(6th Cir. 2001).
Board moves to dismiss the claims against it under the
Wiretap Act and the SCA asserting that there is no secondary
liability under either statute.
The SCA provides in relevant part that whoever:
(1) intentionally accesses without authorization a facility
through which an electronic communication ...