United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
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 ) 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.
following facts come from the Complaint filed in this case
(d/e ) 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).
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.
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.
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.
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.
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.
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.
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.
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.
employment with the ISP ended shortly afterward, on July 9,
2014. Id. ¶ 11. The Complaint does not state
whether Hibbert quit or was fired.
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.
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
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
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 ...