Brook Mallak v. Anthony Runde, et al

Filing

OPINION FILED - THE COURT: Diana E. Murphy, C. Arlen Beam and Raymond W. Gruender AUTHORING JUDGE:Raymond W. Gruender (PUBLISHED) [4400354] [15-1815, 15-1819]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1815
___________________________
Brook Mallak
lllllllllllllllllllll Plaintiff - Appellee
v.
City of Baxter; City of Brainerd; Cass County; Crow Wing County; City of
Fridley; City of Little Falls; City of St. Cloud; City of Staples; Department of
Public Safety of the State of Minnesota; Chad Visser, acting in his individual
capacity as an Officer of the Baxter Police Department; Julie McCullough, acting
in her individual capacity as an employee of the Brainerd Police Department; Joel
Reed, acting in his individual capacity as an Officer of the Brainerd Police Department
lllllllllllllllllllll Defendants
Anthony Runde, acting in his individual capacity as an Officer of the Brainerd
Police Department; Perry Jones, acting in his individual capacity as a Detective for
the Fridley Police Department; David Darling, acting in his individual capacity as
an Officer of the St. Cloud Police Department
lllllllllllllllllllll Defendants - Appellants
Tyler Burke, acting in his individual capacity as an employee of the Crow Wing
County Sheriff's Office; Amy Edberg, acting in her individual capacity as an
employee of the Crow Wing County Sheriff's Department; Ryan Goff, acting in his
individual capacity as a corrections officer for the Crow Wing County Sheriff's
Office and in his individual capacity as an Officer of the City of Staples Police
Department; Gary Gutenkauf, acting in his individual capacity as an Officer of the
Crow Wing County Sheriff's Office; Ginger Heurung, acting in her individual
capacity as a corrections officer for the Crow Wing County Sheriff's Office; Derek
Lavoy, acting in his individual capacity as an investigator for the Crow Wing

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County Sheriff's Office; Illissa Ramm, acting in her individual capacity as an
Assistant County Attorney in the Crow Wing County Attorney's Office; Michael
Tripplet, acting in his individual capacity as a corrections officer for the Crow
Wing County Sheriff's Office; Karri Turcotte, acting in her individual capacity as
an employee of the Crow Wing County Sheriff's Office; Jon Vukelich, acting in
his individual capacity as a Sergeant of the Crow Wing County Sheriff's Office;
Ryan Barnett, acting in his individual capacity as an employee of Central
Minnesota Community Corrections; Dawn Chouinard, acting in her individual
capacity as an employee of Central Minnesota Community Corrections; Shannon
Wussow, acting in her individual capacity as an employee of Central Minnesota
Community Corrections; Colleen Berens; Laura Johnson; Lori Lucas; Christine
Madsen; Joan Smith; Central Minnesota Community Corrections; John and Jane
Does (1-500), acting in their individual capacities as supervisors, officers,
deputies, staff, investigators, employees or agents of the other law-enforcement
agencies; Entity Does (1-50), including cities, counties, municipalities, and other
entitites sited in Minnesota and federal departments and agencies
lllllllllllllllllllll Defendants
___________________________
No. 15-1819
___________________________
Brook Mallak
lllllllllllllllllllll Plaintiff - Appellee
v.
City of Baxter; City of Brainerd; Cass County; Crow Wing County; City of
Fridley; City of Little Falls; City of St. Cloud; City of Staples; Department of
Public Safety of the State of Minnesota; Chad Visser, acting in his individual
capacity as an Officer of the Baxter Police Department; Julie McCullough, acting
in her individual capacity as an employee of the Brainerd Police Department; Joel
Reed, acting in his individual capacity as an Officer of the Brainerd Police
Department; Anthony Runde, acting in his individual capacity as an Officer of the
Brainerd Police Department; Perry Jones, acting in his individual capacity as a
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Detective for the Fridley Police Department; David Darling, acting in his
individual capacity as an Officer of the St. Cloud Police Department; Tyler Burke,
acting in his individual capacity as an employee of the Crow Wing County
Sheriff's Office; Amy Edberg, acting in her individual capacity as an employee of
the Crow Wing County Sheriff's Department
lllllllllllllllllllll Defendants
Ryan Goff, acting in his individual capacity as a corrections officer for the Crow
Wing County Sheriff's Office and in his individual capacity as an Officer of the
City of Staples Police Department
lllllllllllllllllllll Defendant - Appellant
Gary Gutenkauf, acting in his individual capacity as an Officer of the Crow Wing
County Sheriff's Office; Ginger Heurung, acting in her individual capacity as a
corrections officer for the Crow Wing County Sheriff's Office; Derek Lavoy,
acting in his individual capacity as an investigator for the Crow Wing County
Sheriff's Office; Illissa Ramm, acting in her individual capacity as an Assistant
County Attorney in the Crow Wing County Attorney's Office; Michael Tripplet,
acting in his individual capacity as a corrections officer for the Crow Wing County
Sheriff's Office; Karri Turcotte, acting in her individual capacity as an employee
of the Crow Wing County Sheriff's Office; Jon Vukelich, acting in his individual
capacity as a Sergeant of the Crow Wing County Sheriff's Office; Ryan Barnett,
acting in his individual capacity as an employee of Central Minnesota Community
Corrections; Dawn Chouinard, acting in her individual capacity as an employee of
Central Minnesota Community Corrections; Shannon Wussow, acting in her
individual capacity as an employee of Central Minnesota Community Corrections;
Colleen Berens; Laura Johnson; Lori Lucas; Christine Madsen; Joan Smith;
Central Minnesota Community Corrections; John and Jane Does (1-500), acting in
their individual capacity as supervisors, officers, deputies, staff, investigators,
employees or agents of the other law-enforcement agencies; Entity Does (1-50),
including cities, counties, municipalities, and other entitites sited in Minnesota and
federal departments and agencies
lllllllllllllllllllll Defendants
____________
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Appeals from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: March 15, 2016
Filed: May 19, 2016
____________
Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Brook Mallak sued various municipalities and their employees under the
Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721-25, alleging that these
employees had accessed improperly her personal data on a number of occasions. The
defendants moved for summary judgment based on qualified immunity. The district
court1 granted the motion with respect to some of the defendants, but it denied
qualified immunity to those defendants for whom a genuine issue of fact remained
regarding the purpose for which they accessed Mallak’s data. The defendants denied
qualified immunity now appeal that denial. We dismiss the appeal for lack of
jurisdiction.
I.
The Minnesota Department of Vehicle Services (“DVS”), a division of the
Department of Public Safety (“DPS”), maintains a database of information related to
Minnesota drivers. This information includes each driver’s name, date of birth,

1

The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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driver’s license number, address, photograph, weight, height, social security number,
health and disability information, and eye color.
Mallak is a practicing attorney in Brainerd and Little Falls, Minnesota. In
2013, Mallak requested from DPS an audit report of accesses of her driver’s license
information. This report revealed that Minnesota municipal and state personnel had
accessed Mallak’s information approximately 190 times between 2003 and 2012.
Mallak sued various counties and municipalities whose employees had
accessed her data. She alleged that she had no interactions with law-enforcement
personnel that would have justified the access of her personal information. As a
result, she claimed, the accesses documented by the audit report violated her rights
under the DPPA, the United States Constitution, and Minnesota’s common-law right
of privacy.
Prior to the ruling that resulted in the instant appeal, the district court ruled on
several motions to dismiss Mallak’s suit. The court dismissed all DPPA claims based
on inquiries that occurred prior to a four-year statute-of-limitations period, as well as
the constitutional and common-law claims. The court permitted Mallak to proceed
with DPPA claims involving data accesses by five counties and six cities that
occurred within the statute-of-limitations period. After an initial phase of discovery,
these defendants moved for summary judgment on the basis of qualified immunity,
which the district court granted in part and denied in part based on the evidence
available with respect to each claim. The district court granted summary judgment
to those officers who offered a definitive, uncontested, and permissible explanation
for their accesses of Mallak’s data.2 However, the district court denied summary

2

For these accesses, the district court found no genuine dispute of material fact
as to whether the access was related to one of Mallak’s several interactions with law
enforcement during the relevant time period.
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judgment with respect to accesses by four law-enforcement officers: Officer Anthony
Runde, Detective Perry Jones, Officer David Darling, and Officer Ryan Goff.
Officer Anthony Runde of the Brainerd Police Department accessed Mallak’s
data on September 8, 2009. Officer Runde’s affidavit stated that he was “confident”
that this access was in connection with a drug-related investigation of one of Mallak’s
associates. However, Officer Runde also knew Mallak because he had served with
her on a DWI court team, from which Mallak had resigned one week prior to Officer
Runde’s access of her data.
Detective Perry Jones of the Fridley Police Department accessed Mallak’s data
on June 28, 2011. Like Officer Runde, Detective Jones suggested that he may have
accessed Mallak’s data in connection with the investigation of Mallak’s associate.
However, Detective Jones and Mallak attended high school together, and Jones
previously had contacted Mallak to discuss legal matters.
Officer David Darling of the St. Cloud Police Department accessed Mallak’s
data on July 11, 2010. At the time of Officer Darling’s inquiry, Mallak’s child was
on life support at a hospital in St. Cloud. Officer Darling explained in his affidavit
that he could not remember his reason for accessing Mallak’s information.
Officer Ryan Goff of the Staples Police Department accessed Mallak’s data
twice on December 6, 2010. The computer used for these accesses was at the Crow
Wing County jail, where Officer Goff worked full time as a jailer. Mallak previously
had served on two committees that met at the jail and also visited her clients there on
occasion. However, Mallak maintains that she would not have been at the jail at the
time of Officer Goff’s accesses, nor would she have used the entrance that he claims
to have been monitoring.

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In the district court’s judgment, a genuine issue of material fact remained as to
whether the accesses of Mallak’s data by these four officers were “for a purpose not
permitted” under the DPPA. See 18 U.S.C. § 2724(a). According to the court, a grant
of summary judgment with respect to these accesses was premature, particularly when
Mallak had not yet had the opportunity to conduct meaningful discovery or take the
officers’ depositions. The defendants who were denied summary judgment appeal
this ruling, arguing that the district court erred in finding they were not entitled to
qualified immunity and that Mallak lacks standing to bring this suit.
II.
Qualified immunity shields a government official from liability unless his
conduct violates “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Because this entitlement constitutes an immunity from suit rather than merely
a defense to liability, the Supreme Court “repeatedly ha[s] stressed the importance of
resolving immunity questions at the earliest possible stage in litigation.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991). “When there is no dispute among the parties as to
the relevant facts . . . a court should always be able to determine as a matter of law
whether or not an officer is eligible for qualified immunity . . . .” Pace v. City of Des
Moines, 201 F.3d 1050, 1056 (8th Cir. 2000). “We review de novo a district court’s
denial of summary judgment based on qualified immunity.” New v. Denver, 787 F.3d
895, 899 (8th Cir. 2015).
An order denying qualified immunity can be immediately appealable despite
the fact that it is interlocutory. Cooper v. Martin, 634 F.3d 477, 479-80 (8th Cir.
2011). As the Supreme Court made clear in Johnson v. Jones, however, our
interlocutory jurisdiction is limited. 515 U.S. 304, 319-320 (1995). A defendant
denied summary judgment based on qualified immunity may appeal the “purely legal
issue” of “whether the facts alleged . . . support a claim of violation of clearly
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established law.” Id. at 313 (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n.9
(1985)). However, a defendant “may not appeal a district court’s summary judgment
order [denying qualified immunity] insofar as that order determines whether or not
the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at 319-320.
Decisions subsequent to Johnson have clarified that we may hear an appeal of
an order denying qualified immunity where the record plainly forecloses the district
court’s finding of a material factual dispute. In Scott v. Harris, for example, the
Supreme Court held that it had jurisdiction to review a district court’s denial of
qualified immunity because irrefutable video evidence resolved any factual disputes
regarding the defendants’ conduct. 550 U.S. 372, 378 (2007). Similarly, in Plumhoff
v. Rickard, the Supreme Court held that it had jurisdiction to hear an appeal in which
“the record conclusively disprove[d]” the plaintiff’s proposed version of the events
in question. 572 U.S. ---,134 S. Ct. 2012, 2021-22 (2014). As a result, the appeal
presented “legal issues” that were “quite different from any purely factual issues that
the trial court might confront if the case were tried.” Id. at 2019.
Unlike in Johnson and Plumhoff, key factual questions in the present case are
both material and disputed. Mallak contends that the officers’ accesses of her data
violated the DPPA, which prohibits the access and use of motor vehicle records “for
a purpose not permitted” under the act. See 18 U.S.C. § 2724(a). According to
Mallak, because she had no interactions with law enforcement related to these
accesses of her information, the officers must have accessed her data for personal
reasons unrelated to their official duties. The appellants do not dispute that accessing
an individual’s data to satisfy some personal interest constitutes a violation of clearly
established law under the DPPA. Instead, they contend that Mallak failed to present
evidence creating a factual dispute regarding whether the officers accessed her data
for such an improper purpose.

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Rather than “conclusively disprove[]” Mallak’s claim, however, the record
includes several facts indicating that each officer might have accessed her data for an
improper purpose. See Plumhoff, 134 S. Ct. at 2021-22. For example, the record
shows that Mallak may have had some prior relationship with several of the officers
in this case. She attended high school with Officer Jones, and Officer Jones
previously had contacted her for legal advice.3 Mallak served on a DWI court team
with Officer Runde, and Officer Runde accessed Mallak’s data just one week after
she resigned from this position. Mallak also visited clients and served on two
steering committees at the jail where Officer Goff worked. In McDonough v. Anoka
County, we explained that this type of “relationship with particular officers” could
indicate that those officers had accessed an individual’s data for an improper purpose.
See 799 F.3d 931, 947 (8th Cir. 2015). McDonough also held that “a suspicious
access pattern,” such as an access “correspond[ing] with a significant event,” could
show that an officer had accessed DPS data inappropriately. Id. On the same day that
Officer Darling of the St. Cloud police department accessed Mallak’s data, Mallak’s

3

Officer Jones disputes whether accessing Mallak’s data in order to contact her
for legal advice would have constituted a violation of Mallak’s “clearly established
statutory or constitutional rights.” See Harlow, 457 U.S. at 818. He notes that the
DPPA permits officials to access data “for use in connection with” litigation. See 18
U.S.C. § 2721(b)(4). Not until 2013, Jones explains, did the Supreme Court hold that
this provision does not permit officials to access data for use in private legal matters.
See Maracich v. Spears, 570 U.S. ---, 133 S. Ct. 2191, 2209 (2013). Because this
decision came well after his alleged access of Mallak’s data, Jones argues, he would
not have violated clearly established law by using information in connection with his
personal legal affairs. Regardless of the merit of this argument, it is immaterial to the
present appeal because the record does not foreclose the possibility that Jones
contacted Mallak for some other impermissible purpose. Prior to addressing whether
any given purpose violated clearly established law, a court must determine Officer
Jones’s actual purpose in accessing Mallak’s data. The district court held that this
question presented a material factual dispute, and under Johnson we cannot
reevaluate that determination in the context of an interlocutory appeal. See 515 U.S.
at 319-20.
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son was admitted to a St. Cloud hospital and placed on life support. Officers
investigating this event could have had a legitimate reason for accessing Mallak’s
data, but no one from the St. Cloud Police Department was part of that investigation.
In addition, as the district court noted, none of the officers offered a definitive
explanation for why they accessed Mallak’s data. Officer Goff stated that he may
have accessed Mallak’s information in order to permit her to enter the Crow Wing
County jail, where Officer Goff worked as a jailer and where Mallak occasionally met
with clients. Mallak, however, disputes that she visited the jail at the time of Officer
Goff’s accesses, and she points out that the procedure requiring officers to look up
visitors’ data was not in place when Officer Goff made these inquiries. Officer Jones
stated that he “d[id] not recall” his reason for accessing Mallak’s data, but he
conceded that it was “possible [he] accessed her information with the intent of
contacting [her] in connection with a legal matter.” Similarly, neither Officer Runde
nor Officer Darling could recall with certainty why they accessed Mallak’s
information.
The district court denied the defendants qualified immunity because it found
that these facts gave rise to a genuine dispute regarding the officers’ purposes in
accessing Mallak’s data, particularly as Mallak had not yet had the opportunity to
take the officers’ depositions in order to inquire further into the circumstances of their
accesses. Under Johnson, we lack jurisdiction to reevaluate on interlocutory appeal
the district court’s determination that this question “sets forth a ‘genuine’ issue of fact
for trial.” See 515 U.S. at 319-20.
None of the applications of Johnson relied upon by the appellants leads us to
a contrary conclusion. In Lyons v. Vaught, for example, we evaluated only the legal
question of whether official conduct, as alleged in the plaintiff’s complaint,
constituted a violation of the First Amendment. 781 F.3d 958 (8th Cir. 2015).
Similarly, in Thompson v. King, we acknowledged our jurisdiction to review the
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appeal “only to the extent Appellants’ qualified immunity arguments raise an issue
of law.” 730 F.3d 742, 746 (8th Cir. 2013). We then proceeded to assess whether,
based on the facts established by the district court, the defendants had exhibited
deliberate indifference to a detainee’s medical needs. Id. at 746-49. Finally, in New
v. Denver, we determined that none of the facts disputed in the district court were
material to whether the defendant had a reasonable, good faith belief that he had
probable cause to arrest the plaintiff—a question that we held was an issue of law.
787 F.3d at 900-01.
Unlike these cases, the appellants’ entitlement to sovereign immunity hinges
on factual questions regarding the circumstances under which they accessed Mallak’s
personal information. The record does not foreclose the possibility that the officers
accessed Mallak’s data for a purpose not permitted by the DPPA. We thus lack
jurisdiction to reassess this factual dispute in the context of an interlocutory appeal.
See Johnson, 515 U.S. at 319-20.
IV.
For the foregoing reasons, we dismiss the appellants’ appeal for lack of
jurisdiction.4
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4

Because we lack jurisdiction over this appeal, we do not reach the appellants’
argument that Mallak lacks standing to sue under the DPPA. See Consul Gen. of
Republic of Indonesia ex rel. Salom v. Bill’s Rentals, Inc., 251 F.3d 718, 720 (8th Cir.
2001) (declining to address whether plaintiff had standing to bring suit after
determining that plaintiff’s interlocutory appeal contained a jurisdictional defect).
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