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Thacker v. Cuyahoga Heights Board of Education

United States District Court, N.D. Ohio, Eastern Division

May 23, 2017

Holly L. Thacker, M.D., Plaintiff,
v.
Cuyahoga Heights Board of Education, Defendants.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT United States District Judge.

         This 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).[1] (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.

         FACTS[2]

         Plaintiff. 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. Thacker. (Id.)

         Sometime 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. ¶ 20).

         Based 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 superior.

         STANDARD OF REVIEW

         In 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).

         To 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).

         On a 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).

         DISCUSSION

         The 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 ...

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