Why Joe the Plumber’s Civil Rights Claims Were Flushed Down the Toilet

Plaintiff, Joe the Plumber, became a national figure during the 2008 presidential campaign when he appeared in the media on numerous occasions questioning and criticizing then Senator Obama's tax plan particularly as it related to small businesses.

Plaintiff subsequently filed a 42 U.S.C.S. § 1983 action against several officials of the Ohio Department of Job and Family Services (ODJFS) alleging retaliation under the First Amendment and violations of his informational right to privacy under the Fourteenth Amendment. 

The ODJFS administers state programs including Temporary Aid to Needy Families, child support enforcement and unemployment compensation.  As part of such programs, ODJFS maintains several confidential databases.  Plaintiff claimed that following his appearance with Senator Obama, the officials, who had access to these confidential databases, used them to conduct a search related to plaintiff outside the scope of their employment with ODJFS and in retaliation for his interaction with Senator Obama.  The officials were supporters of Senator Obama's campaign, and one of the officials donated to the campaign and was a fundraiser for Senator Obama.

The district court granted the officials' motion for judgment on the pleadings, and plaintiff appealed.  The appellate court affirmed the district court's judgment.  Specifically, the appellate court determined that plaintiff's First Amendment retaliation claim did not allege any sufficient adverse action inasmuch as: (1) the complaint contained no information regarding what, if any, information was discovered, (2) if any information was obtained, it never was disclosed publicly, (3) plaintiff was not threatened with a continuing government investigation, and (4) plaintiff's alleged emotional injury stemming from the mere fact that fruitless database searches were conducted was "inconsequential" as a matter of law. 

The appellate court stated that although plaintiff alleged that his knowledge of the improper database searches caused him to suffer "emotional distress, harassment, personal humiliation, and embarrassment," the allegations were too generalized to withstand judgment on the pleadings.  Further, plaintiff did not suffer a threat to his economic livelihood.  He was not defamed, he did not endure a search or seizure of property, and he did not experience the public disclosure of intimate or embarrassing information.

The appellate court found that under the circumstances alleged in the case, "a person of ordinary firmness" would not be deterred or chilled.  Therefore, the district court correctly dismissed the First Amendment retaliation claim for failure to allege a sufficient adverse action.

The appellate court explained that two types of interests have been identified by the Supreme Court as protected by the right to privacy that is rooted in the substantive due process protections of the Fourteenth Amendment: (1) the interest in "independence in making certain kinds of important decisions;" and (2) the "interest in avoiding disclosure of personal matters." The court held that the right of informational privacy is limited to interests that implicate a fundamental liberty interest.

The appellate court held that plaintiff's privacy claim was properly dismissed inasmuch as he failed to allege that the improper database searches endangered a fundamental liberty interest.  Specifically, plaintiff failed to allege that he was subjected to a risk of bodily injury or that intimate information was disclosed to the public. subscribers can access the Lexis enhanced version of the Wurzelbacher v. Jones-Kelley, et al., 2012 U.S. App. LEXIS 6177, decision with summary, headnotes, and Shepard's.

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