Constitutional – Search & Seizure – Daughter’s Tablet – Free Speech – Due Process

Listen to this article

Even if plaintiff has a reasonable expectation of privacy in the tablet that he gave his daughter to take to school, such a right was not clearly established at the time sheriff’s detectives searched the tablet.

The court grants defendants’ motion to dismiss.

Plaintiff’s minor daughter, SMJ, received an unwanted pornographic image of a male student, and she forwarded the image to several of her friends at their request. During a sheriff’s department investigation of the matter, detectives interviewed SMJ and searched her tablet with her consent.

Where plaintiff does not claim to be a member of the bar of any court, he may not litigate his minor daughter’s claims. Therefore, the court dismisses the claims that plaintiff made on SMJ’s behalf.

Privacy Expectation

Plaintiff argues that he had a reasonable expectation of privacy in the tablet that detectives searched.

Where the office of the sheriff has the final policymaking authority over all matters concerning the sheriff’s department, defendant Brunswick County does not have final policymaking authority over the sheriff’s department. Accordingly, the court dismisses plaintiff’s claim against Brunswick County.

Even though the defendant-school board has a policy of cooperating with criminal investigations and prosecutions, plaintiff has not plausibly alleged that this policy was the moving force behind the alleged violation of his Fourth Amendment rights. Accordingly, the court dismisses plaintiff’s claim against the school board.

Plaintiff asserts a reasonable expectation of privacy in the tablet he gave to SMJ to take to school. Such a right was not clearly established at the time sheriff’s detectives searched the tablet. Plaintiff does not cite any relevant authority from the U.S. Supreme Court, the Fourth Circuit, or the North Carolina Supreme Court for the proposition that he had a reasonable expectation of privacy in the tablet he gave to his daughter.

Although plaintiff alleges that he owns the tablet, property ownership alone is not determinative of whether an individual’s Fourth Amendment rights have been violated. Although plaintiff may have hoped that SMJ would not allow anyone to search the tablet, hopes and intentions do not make Fourth Amendment rights. Thus, the detectives have qualified immunity, and the court dismisses plaintiff’s Fourth Amendment claim.

Due Process

Plaintiff contends that defendants violated his due process rights by interrogating SMJ without his consent. The in-school interview of SMJ did not violate plaintiff’s liberty interest in the care and custody of his child.

Due process does not require school administrators to notify a student’s parents before the student is interviewed on school grounds. Thus, because defendants did not infringe on plaintiff’s liberty interest, he fails to allege a procedural or substantive due process claim.

Plaintiff also claims defendants violated his liberty interests by failing to comply with a school board policy concerning the release of students from the school’s custody and parents’ involvement in student discipline. However, 42 U.S.C. § 1983 does not provide a remedy for violations of state or local law or policies. Rather, a school board’s policies merely establish guidelines to be followed and do not confer any constitutional right. Thus, even if defendants failed to follow a school board policy, such failure does not create a cognizable § 1983 claim.

Motion to Amend

Plaintiff’s motion to amend his complaint is denied as futile.

First, he seeks to add ABC Surety Co. as a defendant, but he has not plausibly alleged that ABC Surety Co. is a state actor. Thus, any § 1983 claim against ABC Surety Co. would be dismissed.

Plaintiff also seeks to add the Brunswick County Sheriff’s Department as a defendant, but sheriff’s departments in North Carolina do not have the legal capacity to be sued.

A letter from Sheriff’s Captain Mose Highsmith informed plaintiff that the sheriff’s department could not serve plaintiff’s summonses and complaints because sheriff’s deputies were defendants in the case. Such a letter would not deter a person of ordinary firmness from exercising his First Amendment rights. Furthermore, plaintiff has not plausibly alleged that Highsmith returned the documents to plaintiff in retaliation for filing a complaint and sending complaining emails.

Johnson has not plausibly alleged that the detectives, the captain, the school principal or the assistant principal manufactured evidence, much less that they did so in retaliation for plaintiff’s exercise of his First Amendment rights.

Motion granted.

Johnson v. Allen (Lawyers Weekly No. 002-011-18, 17 pp.) (James Dever, C.J.) 7:18-cv-00014. Brad Johnson for plaintiff; Christopher Geis, Loryn Ashley Buckner, Benton Louis Toups, Elizabeth King, Edwin West and Sarah Saint for defendants. E.D.N.C.