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Hibbert v. Schmitz

United States District Court, C.D. Illinois, Springfield Division

January 5, 2017

CHRISTINA HIBBERT, Plaintiff,
v.
LEO P. SCHMITZ, DEBORAH SIMENTAL, JOANN JOHNSON, JEFFREY JACOBS, JEFFREY KNAUER, ANGES KINDRED-JOHNSON, and MACHARIA FORTSON, Defendants.

          OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         Plaintiff Christina Hibbert has sued several defendants, all of whom are or were employed by the Illinois State Police (ISP), under 42 U.S.C. § 1983, alleging the defendants violated several of her civil rights. This cause is before the Court on the Motion to Dismiss (d/e [6]) filed by Defendants Leo Schmitz, Deborah Simental, Joann Johnson, Jeffrey Jacobs, and Jeffrey Knauer. For the reasons set forth below, the motion to dismiss is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         The following facts come from the Complaint filed in this case (d/e [1]) by Christina Hibbert and are accepted as true at the motion to dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

         Hibbert worked for the ISP from 2001 to 2014, though she was never a sworn law enforcement officer. In November 2013, Officers Agnes Kindred-Johnson and Macharia Fortson covertly installed video cameras in Conference Rooms B and C of the ISP headquarters. Those conference rooms afford ISP employees a limited amount of personal privacy-the doors have locks-and employees sometimes use the rooms to place personal phone calls or to change clothes before working out.

         Unaware of the covertly-installed cameras, Hibbert used the conference rooms to change clothes and to “engage in other personal matters, ” and the cameras recorded Hibbert “in a state of undress.” Compl. ¶¶ 67, 71. Although the purpose of installing the cameras was to “establish that [Hibbert] and a co-worker were engaging in a romantic relationship, ” the Complaint does not say whether the cameras actually recorded such a liaison. Id. ¶ 53. Regardless, Officers Kindred-Johnson and Fortson “disseminated the information about Hibbert being nude” to other ISP employees, and the ISP currently maintains a copy of the video images of Hibbert “in a state of undress.” Id. ¶¶ 72, 74.

         On May 6, 2014, Director Schmitz filed a complaint with the ISP Merit Board seeking administrative discipline against an ISP officer named Anthony McClure. Id. ¶¶ 22, 25. The Complaint suggests, but does not state, that Officer McClure is the second party to the alleged romantic relationship described above.

         Prompted by Officers Simental, Johnson, and Jacobs, the ISP Merit Board issued what the Complaint alleges was a “purported subpoena.” The purported subpoena was to be served on Hibbert, and read, “YOU ARE HEREBY NOTIFIED to surrender your personal cellular phone with number [redacted] immediately.” Id. ¶ 27.

         Although the ISP did not require Hibbert to carry a cell phone, Hibbert, like many ISP employees, nonetheless carried a personal iPhone, which she had owned since 2012. Hibbert used her iPhone for normal purposes: to place and take calls; to text and email family, friends, and others including lawyers, doctors, and counselors; to take and store personal photographs; and to access the internet.

         On May 20, 2014, Officer Johnson handed Hibbert the subpoena while Hibbert was at her desk at the ISP headquarters building. Hibbert indicated that she did not want to turn over her iPhone and asked whether she had to do so. Officer Johnson responded that Hibbert had no choice in the matter. Hibbert asked if she could call an attorney first, and a different “ISP official” told Hibbert that she could not and that she needed to turn over the phone immediately. Id. ¶ 34.

         Believing that she had no choice other than to do what she was told, Hibbert handed her iPhone to Officer Johnson. Hibbert was also told to provide the password to her phone, which she understood to be “a direct order.” The Complaint does not identify the person who ordered Hibbert to provide her password. Hibbert gave Officer Johnson the password. Id. ¶ 36.

         Officer Johnson gave the phone to Knauer, a non-sworn ISP employee, who downloaded a complete digital copy of all of the information on Hibbert's iPhone, including contact information, private emails, text messages, photographs, financial information, and medical information. Knauer then gave this digital information to Officers Simental, Johnson, and Jacobs. The officers returned Hibbert's iPhone, but they retained the digital information. The ISP currently retains a complete record of the information from the iPhone. Id. ¶¶ 40-42.

         Hibbert's employment with the ISP ended shortly afterward, on July 9, 2014. Id. ¶ 11. The Complaint does not state whether Hibbert quit or was fired.

         The Complaint raises two claims. In Count 1, Hibbert claims that the taking and copying of her iPhone was an unlawful seizure under the Fourth Amendment and violated her Fourth Amendment right to privacy. Hibbert asks the Court: (1) to order ISP Director Schmitz and Officers Simental, Johnson, and Jacobs to return all copies of any information retained from her iPhone and to modify ISP policy to protect ISP employees from future Fourth Amendment violations; (2) to award Hibbert her costs and attorney's fees; and (3) to assess actual and punitive damages against Knauer and Officers Simental, Johnson, and Jacobs.

         In Count 2, Hibbert claims that the covert video recording violated her Fourth Amendment right to privacy. Hibbert asks the Court: (1) to order Director Schmitz and Officer Simental to destroy all copies of any covertly recorded video of Hibbert and to modify ISP policy to ensure such recording does not occur in the future; (2) to award Hibbert her costs and attorney's fees; and (3) to assess actual and punitive damages against Officers Kindred-Johnson and Fortson.

         Defendants Kindred-Johnson and Fortson, who are implicated in Count 2 only, filed an answer in response to the Complaint. The other defendants-Knauer, Director Schmitz, and Officers Simental, Johnson, and Jacobs (hereinafter, “Defendants”)-have filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). They request that: (1) the Court deny Hibbert's requests for injunctive relief in both counts; (2) the Court dismiss Count 1 because the service and execution of an administrative subpoena does not constitute a Fourth Amendment search or seizure; (3) the Court dismiss Count 1 on absolute immunity grounds; and (4) the Court dismiss Count 1 on qualified immunity grounds.

         II. LEGAL STANDARD

         A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 458 (7th Cir. 2007). To state a claim for relief, a plaintiff need only provide a short and plain statement of the claim showing she is entitled to relief and ...


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