Van Zee v. Hanson

                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-1588
                                   ___________

Joseph Van Zee,                        *
                                       *
           Plaintiff - Appellant,      * On Appeal from the United
                                       * States District Court for the
      v.                               * District of South Dakota.
                                       *
Marilyn Hanson,                        *
                                       *
           Defendant - Appellee.       *
                                  ___________

                             Submitted: November 15, 2010
                                Filed: January 18, 2011
                                 ___________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

      Joseph S. Van Zee sued Marilyn Hanson under 42 U.S.C. § 1983, alleging that
she violated his Fourteenth Amendment rights by disclosing his juvenile records to
an Army recruiter. The district court1 dismissed the complaint for failure to state a
claim upon which relief could be granted. Van Zee v. Hanson, No. CIV. 09-3007,
2010 WL 653430, at *3 (D.S.D. Feb. 22, 2010). This court affirms.




      1
        The Honorable Charles B. Kornmann, Senior United States District Judge
for the District of South Dakota.
       Van Zee enlisted in the Army in early 2008. In June, his recruiter advised him
that he could begin basic training after completion of a background check. Van Zee
then executed two blank release forms: one for law enforcement records, the other for
probation officer and court records. The Army recruiter sent these forms to law
enforcement and court agencies where Van Zee had resided, including to the Court
Services Office of the Sixth Judicial District of South Dakota. The Chief Court
Services Officer responded on July 2 that under South Dakota Law, Van Zee's
juvenile records could not be disclosed. On July 9, the recruiter contacted Hanson,
Clerk of Courts for Hyde County, South Dakota, requesting Van Zee's juvenile
records. After Hanson disclosed Van Zee's juvenile records, the recruiter notified him
that his enlistment was canceled.

       The district court ruled that Van Zee did not state a claim under 42 U.S.C. §
1983 because Hanson's actions did not violate his right of privacy. This court reviews
de novo the grant of a motion to dismiss for failure to state a claim, granting all
reasonable inferences in favor of the non-moving party. See Gregory v. Dillard's,
Inc., 565 F.3d 464, 472 (8th Cir. 2009) (en banc).

       To state a claim under § 1983, a plaintiff must allege (1) that the defendant
acted under color of state law, and (2) that the alleged conduct deprived the plaintiff
of a constitutionally protected federal right. Schmidt v. City of Bella Villa, 557 F.3d
564, 571 (8th Cir. 2009).

      Van Zee claims that Hanson's conduct violated his right of privacy under the
Fourteenth Amendment. "[T]o violate the constitutional right of privacy the
information disclosed must be either a shocking degradation or an egregious
humiliation . . . , or a flagrant bre[a]ch of a pledge of confidentiality which was
instrumental in obtaining the personal information." Cooksey v. Boyer, 289 F.3d 513,
516 (8th Cir. 2002) (internal quotation omitted). "To determine whether a particular
disclosure satisfies this exacting standard, we must examine the nature of the material

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. . . to assess whether the person had a legitimate expectation that the information
would remain confidential while in the state's possession." Eagle v. Morgan, 88 F.3d
620, 625 (8th Cir. 1996). The district court concluded that Van Zee lacked a
legitimate expectation of privacy in his juvenile records due to his signed release
forms, and that Hanson's disclosure was neither shockingly degrading nor egregiously
humiliating.

       Van Zee argues that because the pleadings do not include his release forms, the
district court's reliance on them converted Hanson's motion to dismiss into a motion
for summary judgment, without permitting him the opportunity to respond. "If, on a
motion under Rule 12(b)(6) . . . , 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). "All parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion." Id.
"[C]onstructive notice that the court intends to consider matters outside the complaint
can be sufficient." Country Club Estates, L.L.C. v. Town of Loma Linda, 213 F.3d
1001, 1005 (8th Cir. 2000). "Consideration of matters outside the pleading is
harmless where the nonmoving party had an adequate opportunity to respond to the
motion and material facts were neither disputed nor missing from the record." BJC
Health Sys. v. Columbia Gas Co., 348 F.3d 685, 688 (8th Cir. 2003) (internal
quotation omitted).

       Van Zee had (at least) constructive notice that the district court intended to
consider matters outside the complaint when the court, by memorandum to counsel
in August 2009, requested copies of any release forms Van Zee signed when enlisting
in the Army. Van Zee's counsel responded, forwarding copies of Van Zee's signed
forms. The court dismissed Van Zee's complaint in February 2010. Van Zee had an
adequate opportunity to respond to the motion.

      According to Van Zee, the district court deprived him of the opportunity to
dispute whether Hanson received a copy of the release, and if so, the legal effect of

                                         -3-
it. While these issues might affect whether Hanson committed a common-law tort or
violated South Dakota law, they have no effect on whether she violated Van Zee's
Fourteenth Amendment rights. To demonstrate a breach of privacy amounting to a
constitutional violation, Van Zee must allege facts showing a legitimate expectation
that his juvenile records would not be disclosed to the recruiter. Van Zee does not
dispute that he told the recruiter he had a juvenile record and signed forms requesting
the release of his juvenile records to the recruiter. The undisputed facts indicate Van
Zee expected his juvenile records to be disclosed as part of his background check.
Any Rule 12(d) error committed by the district court was harmless. Cf. Ginsburg v.
InBev NV/SA, 623 F.3d 1229, 1236 (8th Cir. 2010) (affirming judgment on the
pleadings where, regardless of any Rule 12(d) violation, "no amount of additional
Rule 56 procedure would cure" the flaw in plaintiff's case).

       Van Zee also claims a due process property interest in the continued
confidentiality of his juvenile records because South Dakota law prohibits disclosure
of juvenile records except in limited circumstances. See Town of Castle Rock v.
Gonzales, 545 U.S. 748, 756 (2005) (explaining that a due process property interest
is an entitlement "created and . . . defined by . . . understandings that stem from an
independent source such as state law.") (internal quotation omitted). Van Zee cites
Soucie v. County of Monroe, 736 F. Supp. 33 (W.D.N.Y. 1990), which recognized
a privacy right in juvenile records that were protected by state law. Soucie
acknowledged, however, that the plaintiffs' privacy claim "depends upon whether the
plaintiff had a reasonable expectation of privacy in the information." Soucie, 736 F.
Supp. at 36. Van Zee had no such expectation, because, unlike the plaintiffs in
Soucie, he requested that his juvenile records be disclosed. This court need not
determine whether Van Zee had a property interest in the confidentiality of his
juvenile records, because he waived any interest he might have had.

      The judgment of the district court is affirmed.
                       ___________________________



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