IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SEAN WILLIAM BECK,

Plaintiff,

vs. Civil Action 2:11-CV-155

Magistrate Judge King

MUSKINGUM COUNTY, OHIO, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court, with the consent of the parties

pursuant to 28 U.S.C. § 636(c), on Defendants’ Motion for Summary

Judgment (“Defendants’ Motion”), Doc. No. 30. Plaintiff Sean Beck

filed a response to the motion, Response to Motion for Summary

Judgment (“Plaintiff’s Response”), Doc. No. 33, to which defendants

filed a reply. Reply in Support of Defendants’ Motion for Summary

Judgment (“Defendants’ Reply”), Doc. No. 34. For the reasons that

follow, Defendants’ Motion is GRANTED.

I. Background

Plaintiff Sean Beck, an inmate currently incarcerated at the

Bureau of Prisons Facility in Terre Haute, Indiana, brings this civil

rights action under 42 U.S.C. § 1983 against defendants Muskingum

County, Ohio, Muskingum County Sheriff Matt Lutz, and Muskingum County

Detective Amy Thompson. Plaintiff alleges that defendant Thompson

improperly shared personal information with Britton Beck, plaintiff’s 

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former wife, and improperly shared information gained in connection

with plaintiff’s criminal prosecution while testifying at his divorce

hearing. 

 Plaintiff was a Zanesville, Ohio police officer from 2003 until

his arrest in 2007. Complaint, ¶¶ 12-14. In his unverified

Complaint, plaintiff alleges that his phone calls were recorded during

his incarceration at the Franklin County jail and that the recordings

were made available to defendant Thompson, who was investigating

plaintiff at the time on an unrelated matter. Id. at ¶¶ 15, 18-19. 

Defendant Thompson allegedly shared this information with Britton Beck

and used “her position as a Detective to assist Britton Beck in her

divorce proceedings.” Id. at ¶ 31. Defendant Thompson testified for

Britton Beck at the latter’s February 24, 2009 divorce hearing. Id.

at ¶ 32. Defendant Thompson also informed Britton Beck “that the

Federal Bureau of Investigation . . . collected eight hundred dollars

from Plaintiff when he was arrested.” Id. at ¶ 36. Plaintiff alleges

that defendant Thompson shared this information with, and testified

for, Britton Beck even after she was told by Assistant United States

Attorney David Devillers and FBI Special Agent Drew McConnahey to stop

sharing information with Britton Beck. Id. at 26-28. According to

plaintiff, these actions constitute a “continuing violation” of his

civil rights. Id. at 37.1

II. Standard

1

Although the Complaint refers to state law claims, see id. at ¶¶ 40 -

58, plaintiff does not intend to pursue such claims. See Preliminary Pretrial

Order, Doc. No. 8, p. 1. The Court also notes that plaintiff fails to address

any such claims in his response to Defendants’ Motion.

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The standard for summary judgment is well established. This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,

which provides in pertinent part:

The judgment sought shall be rendered if the pleadings,

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of

law.

Fed. R. Civ. P. 56(c). Pursuant to Rule 56(c), summary judgment is

appropriate if “there is no genuine issue as to any material fact.” 

Id. In making this determination, the evidence “must be viewed in the

light most favorable” to the non-moving party. Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970). Summary judgment will not lie if the

dispute about a material fact is genuine, “that is, if the evidence is

such that a reasonable jury could return a verdict for the non-moving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

However, summary judgment is appropriate if the opposing party “fails

to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). The “mere existence of a scintilla of evidence in support

of the [opposing party’s] position will be insufficient; there must be

evidence on which the jury could reasonably find for the [opposing

party].” Anderson, 477 U.S. at 252.

The “party seeking summary judgment always bears the initial

responsibility of informing the district court of the basis for its

motion, and identifying those portions” of the record which

demonstrate “the absence of a genuine issue of material fact.” 

Celotex Corp., 477 U.S. at 323. The burden then shifts to the

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nonmoving party who “must set forth specific facts showing that there

is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting

Fed. R. Civ. P. 56(e)). “Once the moving party has proved that no

material facts exist, the non-moving party must do more than raise a

metaphysical or conjectural doubt about issues requiring resolution at

trial.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986)). 

III. Discussion

Defendants argue that summary judgment is appropriate because

they are absolutely immune from liability in connection with

Thompson’s alleged testimony at plaintiff’s divorce hearing. 

Defendants also argue that plaintiff has failed to articulate an

actionable constitutional violation to support his § 1983 claims. 

In opposing the motion for summary judgment, plaintiff does not

identify any issue of material fact; indeed, plaintiff has failed to

produce any admissible evidence even suggesting the existence of a

genuine issue of material fact. 

The only evidence to which plaintiff refers in opposing

Defendants’ Motion is his own deposition, Sean Beck Deposition, Doc.

No. 24. Specifically, plaintiff cites his deposition for the

following: 

Plaintiff’s criminal defense attorney Terry Sherman had

requested this sharing of information cease. David Devillers,

Assistant United States Attorney for the Southern District of

Ohio, and Drew McConnahey, special agent in charge of the

investigation, both told Defendant Thompson to stop sharing

information with Britton Beck. Alan Pfueffer, assistant

Federal Public Defender, even had to reiterate the request to

David Devillers about the sharing of information when he

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became Plaintiff’s attorney. Eventually, the Federal

investigators told the local authorities that they would not

be sharing any more information with them in regards to

Plaintiff.

Plaintiff’s Response, at 3 (internal citations omitted) (citing Sean

Beck Deposition, Doc. No. 24, pp. 83-88). The portions of the

deposition cited by plaintiff provide that plaintiff was told by his

former criminal defense attorney, Alan Pfeuffer, that Assistant United

States Attorney Devillers and FBI Special Agent Drew McConnahey told

Pfeuffer that they had told defendant Thompson to stop sharing

information. See Sean Beck Deposition, pp. 85-88. Clearly, plaintiff

has no personal knowledge of these alleged facts and his testimony in

this regard constitutes inadmissible hearsay. It is well-established

that “[a] party opposing a motion for summary judgment cannot use

hearsay or other inadmissible evidence to create a genuine issue of

material fact.” Sperle v. Mich. Dep't of Corr., 297 F.3d 483, 495

(6th Cir. 2002) (quoting Weberg v. Franks, 229 F.3d 514, 526 n.13 (6th

Cir. 2000)). 

In short, there is no admissible evidence before the Court in

support of plaintiff’s allegations or claims.

A. Immunity

 Defendants also argue that they are entitled to summary judgment

because they enjoy immunity from liability for money damages (the only

form of relief sought by plaintiff) arising out of defendant

Thompson’s alleged testimony. Defendants’ Motion, pp. 4-6. 

Plaintiff argues that immunity does not apply to defendants because

defendant Thompson’s testimony was not at a “criminal trial” and it

did not involve “perjured testimony.” Plaintiff’s Response, pp. 5-6. 

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However, it is well settled that witnesses, including police officers,

enjoy “absolute immunity with respect to any claim based on the

witness’ testimony.” Rehberg v. Paulk, 132 S.Ct. 1497, 1505 (2012)

(citing Briscoe v. LaHue, 460 U.S. 325, 332-33 (1983)). See also

Cleavinger v. Saxner, 474 U.S. 193, 201 (1985); Tower v. Glover, 467

U.S. 914, 920 (1984); LidoChem, Inc. v. Stoller Enters., Inc., No. 10-

1686, 2012 WL 4009709, at *12 (6th Cir. Sept. 12, 2012). That

immunity is not limited by either the nature of the judicial

proceeding or of the testimony given. Therefore, defendant Thompson

is entitled to summary judgment to the extent that plaintiff’s claims

are based on her testimony at plaintiff’s divorce proceeding. 

To the extent that plaintiff’s claims against defendants

Muskingum County, Ohio and Muskingum County Sheriff Matt Lutz are

based on defendant Thompson’s testimony, they appear to be based

solely on the theory of respondeat superior. Of course, respondeat

superior is not a viable basis for liability under § 1983. See Monell

v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978). Therefore,

defendants Muskingum County, Ohio and Muskingum County Sheriff Matt

Lutz are entitled to summary judgment to the extent that plaintiff’s

claims are based on defendant Thompson’s testimony at plaintiff’s

divorce proceeding. 

B. Constitutional Violation

Section 1983 provides in relevant part: 

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

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laws, shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress . . . . 

42 U.S.C. § 1983. A prima facie case under § 1983 requires evidence

of (1) conduct by an individual acting under color of state law, and

(2) the deprivation of a right secured by the Constitution or laws of

the United States. Day v. Wayne Cnty. Bd. of Auditors, 749 F.2d 1199,

1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535

(1981)). Section 1983 merely provides a vehicle for enforcing

individual rights and does not itself establish any substantive

rights. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002). 

Defendants argue that they are entitled to summary judgment on

plaintiff’s § 1983 claim because plaintiff cannot establish a

constitutional violation. Defendants’ Motion, pp. 6-8. The

unverified Complaint does not specify the constitutional right

allegedly violated by defendants. However, plaintiff’s response to

Defendants’ Motion contends that defendants violated his

constitutional right to informational privacy. Plaintiff’s Response,

pp. 7-10. 

The right to informational privacy is narrowly construed and

involves a two-part test: “‘(1) the interest at stake must implicate

either a fundamental right or one implicit in the concept of ordered

liberty; and (2) the government's interest in disseminating the

information must be balanced against the individual's interest in

keeping the information private.’” Flaskamp v. Dearborn Pub. Sch.,

385 F.3d 935, 945 (6th Cir. 2004) (quoting Bloch v. Ribar, 156 F.3d

673, 684 (6th Cir. 1998)). Plaintiff argues that his fundamental

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rights to privacy in marriage and in family relationships were

“violated when Defendant Thompson, in her official capacity, chose to

insert herself, and the government, into Plaintiff’s marriage and

family life by sharing private details with his wife and testifying at

his divorce proceeding.” Plaintiff’s Response, p. 8. According to

plaintiff, defendant Thompson revealed private information about

plaintiff’s finances and life and defendant Thompson’s criminal

investigation of plaintiff. Id. 

To the extent that plaintiff’s claim is based on defendant

Thompson’s testimony at his divorce hearing, the claim is without

merit. As discussed supra, plaintiff’s claim for money damages based

on defendant Thompson’s alleged testimony cannot proceed. See

Briscoe, 460 U.S. at 332-33; Monell, 436 U.S. at 691. 

To the extent that plaintiff’s claims are based on defendant

Thompson’s alleged “sharing private details with” plaintiff’s former

wife, plaintiff has not pointed to any admissible evidence in support

of his claims. Plaintiff relies on Kallstrom v. City of Columbus, 136

F.3d 1055 (6th Cir. 1998), for the proposition that defendant Thompson

violated his right to informational privacy by sharing information “in

a court of public record” that was “detrimental to the safety of

Plaintiff” and a “violation of officer safety.” Plaintiff’s Response,

p. 9. Plaintiff, however, was not a police officer at the time of the

divorce hearing, see Sean Beck Deposition, pp. 13, 90-91, and there is

no evidence that the information allegedly shared by defendant

Thompson rose to the level of a constitutional violation. 

In Kallstrom, the United States Court of Appeals for the Sixth

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Circuit held that an undercover police officer had a constitutional

right to privacy in his personal information that was disclosed by the

government to gang members who had a propensity for violence and who

were likely to seek revenge. Kallstrom, 136 F.3d at 1062-65. 

Kallstrom “did not create a broad right protecting plaintiff’s

personal information.” Barber v. Overton, 496 F.3d 449, 456 (6th Cir.

2007). “Rather, Kallstrom created a narrowly tailored right, limited

to circumstances where the information disclosed was particularly

sensitive and the persons to whom it was disclosed were particularly

dangerous vis-à-vis the plaintiffs.” Id. (emphasis in original)

(holding that the government’s release of corrections officers’ social

security numbers and birth dates to prisoners at a maximum security

correctional facility did not violate the officers’ right to

informational privacy). In the case presently before the Court,

there is no evidence detailing the information allegedly disclosed nor

is there any indication that any information that may have been

disclosed was particularly sensitive or was disclosed to people who

were particularly dangerous to plaintiff. Furthermore, there is no

evidence that the information disclosed, or the manner in which it was

disclosed, affected plaintiff’s right to marry a person of his own

choosing, see Loving v. Virginia, 388 U.S. 1 (1967), or his freedom of

personal choice in matters of family life. See Prince v.

Massachusetts, 321 U.S. 158, 166 (1944). Accordingly, plaintiff has

failed to articulate the deprivation of a constitutional right

actionable under § 1983. 

The unverified Complaint also alleges that defendants “conspired

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to violate plaintiff’s statutory civil rights in violation of 42

U.S.C. § 1983, for which Defendants Lutz and Thompson are individually

liable.” Complaint, ¶ 46. “‘A civil conspiracy is an agreement

between two or more persons to injure another by unlawful action.’” 

Hensley v. Gassman, Nos. 11-1071, 11-1129, 2012 WL 3932043, at *10

(6th Cir. 2012) (quoting Hooks v. Hooks, 771 F.2d 935, 943-44 (6th

Cir. 1985)). “The plaintiff has the burden of showing that a single

plan existed, that the alleged coconspirator shared in the general

conspiratorial objective, and that an overt act was committed in

furtherance of the conspiracy that caused injury to him.” Scott v.

Churchill, 225 F.3d 659, 2000 WL 519148, at *3 (6th Cir. Apr. 6, 2000)

(citing Collyer v. Darling, 98 F.3d 211, 229 (6th Cir. 1996)). Thus,

in order to prevail on a conspiracy claim, plaintiff “must establish

facts showing not only an agreement by defendants to violate

plaintiff's constitutional rights, but also an actual deprivation of a

constitutional right.” Crosky v. Ohio Dept. of Rehab. & Corr., No.

2:09-cv-400, 2012 WL 748408, at *12 (S.D. Ohio Mar. 8, 2012) (citing

Stone v. Holzberger, 807 F. Supp. 1325, 1340 (S.D. Ohio 1992)). As

discussed supra, plaintiff has failed to establish the deprivation of

any constitutional right and he points to no specific evidence

demonstrating a genuine issue of material fact. Accordingly,

defendants are entitled to summary judgment on plaintiff’s § 1983

claims. 

In short, defendants are immune from liability for all claims

arising out of defendant Thompson’s testimony at plaintiff’s divorce

hearing. To the extent that plaintiff’s claims are unrelated to

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defendant Thompson’s testimony, plaintiff has not produced evidence of

the denial of a constitutional right. Defendants are therefore

entitled to judgment as a matter of law. 

Accordingly, Defendants’ Motion for Summary Judgment, Doc. No.

30, is GRANTED. 

The Clerk is DIRECTED to enter FINAL JUDGMENT in this action.

October 10, 2012 s/ Norah McCann King 

 Norah McCann King

United States Magistrate Judge

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