(filed June 21, 1990) (Lamberth, J.) [1990 U.S. Dist. LEXIS 7487]; Harris v. District of Columbia, Civil Action No. 88-0555 (filed June 15, 1990) (Johnson, J.) [1990 U.S. Dist. LEXIS 7342].
Defendants' second argument is that plaintiffs have not alleged facts that make out a claim for violation of their privacy rights under the Constitution. Privacy rights are recognized under the Constitution, though courts have balanced such rights against governmental needs limiting them. Whalen v. Roe, 429 U.S. 589, 602, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977); Nixon v. Administrator of General Services, 433 U.S. 425, 456-57, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977).
A prisoner retains constitutional rights, though, as with other citizens' rights, courts have balanced them against governmental interest and diminished them where necessary to maintain institutional objectives. Bell v. Wolfish, 441 U.S. 520, 545-46, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); Wolff v. McDonnell, 418 U.S. 539, 555-56, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). "Inmates in jails, prisons, or mental institutions retain certain fundamental rights of privacy: they are not like animals in a zoo to be filmed and photographed at will by the public or by media reporters, however 'educational' the process may be for others." Houchins v. KQED, Inc., 438 U.S. 1, 5 n. 2, 57 L. Ed. 2d 553, 98 S. Ct. 2588 (1978). The Tenth Circuit has held that a prisoner's privacy rights are violated when personal photographs were shown to members of the public by the police if the prisoner had a legitimate expectation of privacy in the pictures and that interest outweighed the public need for their disclosure. Slayton v. Willingham, 726 F.2d 631, 635 (10th Cir. 1984). Similarly, the Central District of Illinois has found that a prison official who allowed a news reporter to film a prisoner in his cell against his will violated his constitutional rights because he had a legitimate and reasonable expectation of privacy. Smith v. Fairman, 98 F.R.D. 445, 450 (C.D. Ill. 1982). Furthermore, numerous courts have found that prisoners do not surrender their privacy rights while in prison for purposes of the Fourth Amendment absent some justification by the institution. See United States v. Hinckley, 525 F. Supp. 1342, 1360 (D.D.C. 1981), amended, 529 F. Supp. 520 (1982), aff'd 217 App. D.C. 262, 672 F.2d 115 (D.C. Cir. 1982); Bonner v. Coughlin, 517 F.2d 1311, 1316 (7th Cir. 1975), cert. denied, 435 U.S. 932, 55 L. Ed. 2d 529, 98 S. Ct. 1507 (1978); United States v. Savage, 482 F.2d 1371, 1372-73 (9th Cir. 1973), cert. denied, 415 U.S. 932, 39 L. Ed. 2d 491, 94 S. Ct. 1446 (1974). In the briefs before the Court in this action, defendants have not made any showing that institutional exigencies required the videotaping.
Instead, defendants contend that the claim may be dismissed because an individual's privacy right can not be violated in the absence of a public disclosure. However, this assertion, as noted by plaintiffs, is both legally and factually flawed. In the first place, plaintiffs may have a legitimate expectation of privacy in the film itself whether or not it is publicly disclosed. See Slayton, 726 F.2d at 635; Smith, 98 F.R.D. at 450. In addition, defendants concede that the film has been shown to Department of Corrections personnel and such showing may violate plaintiffs' privacy rights. In any event, plaintiffs allege that the defendants have displayed the videotape to unknown third parties. In fact, plaintiffs allege that a version of the videotape that included footage of a different flight was released to an attorney representing three of the plaintiffs in this action in response to a Freedom of Information Act request. In addition, plaintiffs seek a court order prohibiting future showing of the film. Accordingly, construing the allegations in favor of the plaintiffs as required by Rule 12(b)(6), the motion to dismiss cannot succeed on this point.
Defendants present several additional arguments, none of which provide the showing necessary to dismiss or issue summary judgment. First, defendants assert that plaintiffs fail to make out a claim for intentional infliction of emotional distress. Plaintiffs point out, however, that they do not assert a claim for intentional infliction of emotional distress, rather, their claim relies on the common law tort of invasion of privacy, as recognized by Vassiliades v. Garfinckel's, 492 A.2d 580, 587 (D.C. 1985).
Defendants further contend that Patricia Britton should be dismissed as a defendant because her duties were limited to administrative tasks and she was not responsible for videotaping. Defendants submitted the Statement of Material Facts Not in Dispute and the Declaration of Patricia Britton as support for this claim, and thus the standards associated with summary judgment rather than dismissal apply to this claim. In any event, plaintiffs convincingly respond that Britton's declaration, stating that she accompanied the prisoners on the flight in which they were videotaped and that her responsibilities included the administrative aspects of the transfer, creates an issue of fact as to her role in the videotaping. Plaintiffs note that knowledge of the scope of Britton's responsibilities and actions is in the possession of defendants and that without discovery they are unable to adequately contest the issue of whether Britton played a supervisory role. Thus genuine issues of material fact prevent summary judgment on this issue at this time.
Lastly, defendants Britton and Ballard assert the defense of qualified immunity, relying largely on Siegert v. Gilley, 895 F.2d 797 (D.C. Cir. 1990). Siegert discusses qualified immunity in connection with a suit for damages under the doctrine of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). However, Monell and Will established that the liability of officials sued under § 1983 stems from the liability of the governing entity. Accordingly, Monell stated that "local government officials sued in their official capacities are 'persons' under § 1983 in those cases where, as here, a local government would be suable in its own name." 436 U.S. at 690 n. 55. Will established the counter holding that a § 1983 action against state officials may not be maintained because "it is no different from a suit against the State itself." 109 S. Ct. at 2311. Thus, under Monell, District of Columbia officials are not immune from suit because the District of Columbia itself is liable as a "person."
In summary, plaintiffs have alleged facts which make out a claim for relief. Defendants have not demonstrated either that the District of Columbia may not be sued as a "person" pursuant to § 1983 or that the allegations are insufficient to create a claim for violation of plaintiffs' privacy rights under the Constitution. Neither have defendants demonstrated that plaintiffs' common law claims are insufficient, that there are no disputed issues of fact with respect to the participation of defendant Britton in the alleged deprivation, or that defendants Britton and Ballard may be dismissed on a defense of qualified immunity.
Accordingly, for the aforementioned reasons, an accompanying order will deny defendants' Motion to Dismiss or in the Alternative for Summary Judgment. Defendants' Motion for a Protective Order requesting that discovery not be conducted pending the Court's decision on the Motion to Dismiss is rendered moot.
ORDER -- August 10, 1990, Filed
For the reasons stated in the accompanying Memorandum, it is this 10th day of August, 1990, hereby
ORDERED: that defendants' Motion to Dismiss the Complaint or, in the Alternative, for Summary Judgment should be, and is, hereby DENIED; and it is further
ORDERED: that defendants' Motion for a Protective Order is rendered moot.
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