           Case: 12-14017   Date Filed: 04/11/2013   Page: 1 of 8


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14017
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:11-cv-02817-SDM-AEP



DAVID J. ELKINS,

                                                            Plaintiff-Appellant,

versus

TROY ELENZ,
MICHAEL PALMIOTTO,
ROBERT ROBBINS,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (April 11, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-14017      Date Filed: 04/11/2013   Page: 2 of 8


      David Elkins appeals the district court’s dismissal of his pro se civil rights

complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), the Privacy Act, 5

U.S.C. § 552a, and the Administrative Procedure Act, 5 U.S.C. §§ 702, 706

(“APA”). His complaint stemmed from: (1) alleged aerial surveillance of his car

along a public roadway by defendant Robbins, a Drug Enforcement Administration

agent; and (2) his probation officer requiring him to turn over, on threat of

revocation of probation, a mental health examination Elkins had conducted at his

own expense. The district court granted qualified immunity and dismissed the

constitutional violations and also dismissed the statutory violations for a failure to

state a claim because Elkins did not name an agency defendant.

      On appeal, Elkins first argues that the district court should have converted

the defendants’ motion to dismiss into a motion for summary judgment and

considered his supporting affidavits. Second, he argues that the district court erred

in dismissing his constitutional rights claims to be free from aerial surveillance on

a public roadway. Finally, he argues that the district court erred in dismissing his

allegations of violations of the Privacy Act and the APA. After careful review, we

affirm.

                                           I.




                                           2
              Case: 12-14017     Date Filed: 04/11/2013    Page: 3 of 8


      We review de novo a district court’s decision to grant a motion to dismiss,

including whether a district court was required to convert a motion to dismiss into

a motion for summary judgment. See SFM Holdings, Ltd. v. Banc of Am. Sec.,

LLC, 600 F.3d 1334, 1336-37 (11th Cir. 2010); Day v. Taylor, 400 F.3d 1272,

1275-76 (11th Cir. 2005). We also review de novo whether a complaint alleges a

violation of a clearly established constitutional right. St. George v. Pinellas Cnty.,

285 F.3d 1334, 1337 (11th Cir. 2002). We accept the facts alleged in the

complaint as true, draw all reasonable inferences in the plaintiff’s favor, and limit

our review to the four corners of the complaint. Id.

      “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings

are presented to and not excluded by the court, the motion must be treated as one

for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). A district court

does not need to formally exclude a matter outside of the pleadings if it is clear the

district court did not consider such in its order. See Harper v. Lawrence Cnty.,

Ala., 592 F.3d 1227, 1232 (11th Cir. 2010).

      Here, the district court was not required to convert the motion to dismiss

unless it considered material outside of the complaint. Since the district court

dismissed the complaint on its legal merits, it was unnecessary for it to consider the

additional affidavits Elkins submitted. See Harper, 592 F.3d at 1232.




                                           3
               Case: 12-14017     Date Filed: 04/11/2013    Page: 4 of 8


Accordingly, the district court did not err when it did not convert the motion to

dismiss into a motion for summary judgment.

                                          II.

      The Supreme Court has held that federal officials may be sued in their

individual capacities for violations of a person’s constitutional rights. Bivens, 403

U.S. at 397, 91 S. Ct. at 2005. Bivens actions are brought directly under the

Constitution, without a statute providing a cause of action. Hardison v. Cohen,

375 F.3d 1262, 1264 (11th Cir. 2004). However, “qualified immunity shields

governmental officials executing discretionary responsibilities from civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Williams

v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1300 (11th Cir. 2007)

(quotations omitted). When a district court is evaluating a defendant’s Rule

12(b)(6) motion to dismiss based on qualified immunity, it “should grant qualified

immunity if the plaintiff’s complaint fails to allege a violation of a clearly

established constitutional or statutory right.” Id. “The applicable law is clearly

established if the preexisting law dictates, that is, truly compel[s], the conclusion

for all reasonable, similarly situated public officials that what Defendant was doing

violated Plaintiffs’ federal rights in the circumstances.” Evans v. Stephens, 407

F.3d 1272, 1282 (11th Cir. 2005) (alteration in original) (quotations omitted). A


                                           4
                Case: 12-14017        Date Filed: 04/11/2013       Page: 5 of 8


right must be “clearly established” at the time of the alleged violation. Rehberg v.

Paulk, 611 F.3d 828, 846 (11th Cir. 2010), aff’d on other grounds, 132 S. Ct. 1497

(2012).

       Multiple courts have found aerial surveillance to be constitutional. Florida

v. Riley, 488 U.S. 445, 109 S. Ct. 693 (1989); United States v. Robinson, 62 F.3d

1325, 1330 (11th Cir. 1995) (holding that aerial surveillance of a home using

thermal imagery was constitutional). Courts have also found little expectation of

privacy in movement along a public thoroughfare. See, e.g., United States v.

Knotts, 460 U.S. 276, 280-82, 103 S. Ct. 1081, 1084-86 (1983). After the

surveillance in this case, the Supreme Court ruled that attaching a GPS device to

the undercarriage of a defendant’s jeep without a warrant constituted a search for

Fourth Amendment purposes, and the evidence obtained by the warrantless use of

the device was properly suppressed. See United States v. Jones, 565 U.S. __, 132

S. Ct. 945 (2012). Because Jones was decided after the challenged actions here, it

did not clearly establish the relevant law.1 We cannot conclude that the district

court erred in holding that there has been no violation of clearly established

constitutional rights.



1
        Moreover, Jones did not overrule or disturb the holding in Knotts where the beeper was
installed with consent at a time the container belonged to a third party. See Jones, 565 U.S. at
__, 132 S. Ct. at 952. As in Knotts, the surveillance here did not involve any nonconsensual
attachment of a device, and the surveillance of defendant’s movements occurred only while he
traveled the public highways.
                                                5
               Case: 12-14017     Date Filed: 04/11/2013    Page: 6 of 8


      Probation is a criminal sanction imposed by a court after a finding of guilty.

United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587, 591 (2001).

Probationers “do not enjoy the absolute liberty to which every citizen is entitled.”

Id. (quotation omitted). We have not addressed whether a probation officer can

require a probationer to turn over medical records, without a court order, on threat

of revocation of probation. However, other circuits have addressed this issue to

varying degrees. See, e.g., United States v. Wayne, 591 F.3d 1326, 1332-33 (10th

Cir. 2012) (holding that a district court could require a probationer to submit a

mental health report to the probation office); United States v. Lopez, 258 F.3d

1053, 1057 (9th Cir. 2001) (holding that the release of mental health records was

permissible to ensure compliance with conditions of supervised release); Jarvis v.

Wellman, 52 F.3d 125, 126 (6th Cir. 1995) (holding that a disclosure of a

plaintiff’s medical records did “not rise to the level of a breach of a right

recognized as ‘fundamental’ under the Constitution. Because disclosure of

plaintiff’s medical records did not violate a constitutional right, it follows that

defendants were entitled to qualified immunity”).

      The district court correctly granted qualified immunity and dismissed the

constitutional claims. At the time of the alleged violations, there was no clearly

established right to be free from aerial surveillance on a public roadway or

electronic surveillance tracking only location. See Williams, 477 F.3d at 1300;


                                           6
               Case: 12-14017     Date Filed: 04/11/2013    Page: 7 of 8


Rehberg, 611 F.3d at 846. Similarly, in the absence of clearly established

procedures for requesting and obtaining medical records from a probationer, the

actions taken in this case could not have violated a “clearly established” right to be

free from such under the Fourth and Fifth Amendments.

                                          III.

      To state a claim under the Privacy Act, a plaintiff must allege: (1) that the

government failed to fulfill its record-keeping obligation, (2) which failure

proximately caused the adverse determination, (3) that the agency failed

intentionally or willfully to maintain the records, and (4) that the plaintiff suffered

actual damages. Perry v. Bureau of Prisons, 371 F.3d 1304, 1305 (11th Cir. 2004)

(quotation omitted) (internal quotation marks omitted). Similarly, under the terms

of the APA, a claimant “must direct its attack against some particular ‘agency

action’ that causes harm.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891, 110 S.

Ct. 3177, 3190 (1990).

      Elkins’s Privacy Act and APA claims must fail. Elkins did not name a

defendant agency in his complaint, as amended, and he did not request permission

from the district court to amend the complaint further. See Perry, 371 F.3d at

1305. He has not identified an intentional or willful failure to maintain records,

nor has he identified an agency action that has caused him harm. See id.




                                           7
              Case: 12-14017    Date Filed: 04/11/2013   Page: 8 of 8


Accordingly, the district court correctly dismissed any claim based on the Privacy

Act or the APA.

                                        IV.

      After a thorough review of the record and the parties’ briefs, we affirm.

      AFFIRMED.




                                         8
