Larios v. Lunardi, et al

Filing 57

ORDER signed by District Judge John A. Mendez on 4/9/2020 GRANTING 42 Defendants' motion for summary judgment on Plaintiff's unlawful seizure claim. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY LARIOS,

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2:15-cv-02451-JAM-DMC

Plaintiff,
v.
SCOTT LUNARDI and ROBERT J.
JONES,

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Defendants.

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No.

In October 2019, Scott Lunardi, Kyle Foster, and Robert

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Jones filed a motion for summary judgment.

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(“Mot.”), ECF No. 42.

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judgment in favor of Defendants on each of Plaintiff’s claims.

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Order Granting in Part Defs.’ Mot. for Summ. J., ECF No. 55.

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Court deferred ruling on Defendants’ challenge to Plaintiff’s

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claim that Lunardi and Jones partook in an unlawful seizure when

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they allowed CHP investigator Curtis Duray to download the

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contents of Plaintiff’s personal phone onto a CHP computer.

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Order at 2-3.

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surreply so he could respond to arguments Defendants raised for

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the first time in their reply brief on this issue.

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23; see also Plf’s. Surreply, ECF No. 56.

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Mot. for Summ. J.

With one exception, the Court granted

The

The Court granted Plaintiff leave to file a

Order at 22-

For the reasons set forth below, the Court finds Jones was
not an integral participant in Duray’s seizure.
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Consequently,

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the Court finds that he can not be held liable for Duray’s

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conduct under Section 1983.

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participant in this seizure—a seizure that violated Plaintiff’s

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Fourth Amendment rights.

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established when the seizure occurred, Lunardi is entitled to

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qualified immunity.

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summary judgment on Plaintiff’s unlawful seizure claim against

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both Lunardi and Jones.

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Lunardi was, however, an integral

But because the right was not clearly

The Court grants Defendants’ motion for

I.

BACKGROUND

The Court refers the parties to its previous order, ECF No.

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55, where it set forth this case’s procedural history and

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relevant undisputed facts.

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cv-02451-JAM-DMC, 2020 WL 1062049, at *1-3 (E.D. Cal. March 5,

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2020).

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See also Larios v. Lunardi, No. 2:15-

II.

OPINION

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A.

Analysis

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Section 1983 of the Civil Rights Act creates a private

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right of action against any person who, under the color of state

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law, deprives another “of any rights, privileges, or immunities

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secured by the Constitution and laws” of the United States.

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U.S.C. § 1983.

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officials from liability under this provision unless the

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official’s conduct violated a constitutional or statutory right

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that was “clearly established” when the conduct occurred.

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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requires courts to determine whether the official’s conduct

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violated a federal right and whether that right was clearly

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established at the time the officer’s conduct occurred.

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Qualified immunity, however, shields state

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This standard

Pearson

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v. Callahan, 555 U.S. 223, 243-44 (2009).

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to both questions is ‘yes’ may a plaintiff sue a state official

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under section 1983.

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Only when the answer

Id.

Constitutional Violation

Plaintiff’s remaining claim contends Lunardi and Jones

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participated in an unconstitutionally overbroad seizure when

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their colleague, Curtis Duray, created a backup of Plaintiff’s

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personal cell phone on a CHP computer.

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¶ 33(a).

Sec. Am. Compl. (“SAC”)

The Fourth Amendment, incorporated against the states

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by the Fourteenth Amendment, “proscribes unreasonable searches

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and seizures.”

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Within the Fourth Amendment context, a seizure is any

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“meaningful interference with an individual’s possessory

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interests in [his] property.”

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1196 (9th Cir. 2017).

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Florida v. Bostick, 501 U.S. 429, 440 (1991).

Brewster v. Beck, 859 F.3d 1194,

When the Court adjudicated Plaintiff’s unconstitutional

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search claim, it had to first determine whether Defendants

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conducted a search at all.

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Defendants do not contest whether downloading the contents of

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Plaintiff’s personal phone onto a workplace computer amounted to

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a seizure.

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not named in Plaintiff’s suit—was the only officer that

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conducted the seizure and (2) the seizure was reasonable.

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at 5-6.

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Order at 14-18.

Here, however,

Rather, they argue that (1) Duray—a CHP investigator

Reply

The Court agrees with Defendants only in part.

First, it is true that the undisputed facts show Duray

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created the backup of Plaintiff’s phone.

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Decl. ¶¶ 16-17, ECF No. 42-11; Lunardi Decl. ¶ 77, ECF No. 42-5.

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But this fact, in and of itself, does not necessarily absolve
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See RSUF ¶ 118; Duray

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Defendants of liability.

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“each officer’s actions themselves rise to the level of a

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constitutional violation.”

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780 (9th Cir. 2004).

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involve[d] . . . in the conduct that allegedly caused the

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violation,” the officer may be liable as an “integral

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participant.”

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n.12 (9th Cir. 2007); see also Monteilh v. County of Los

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Angeles, 820 F. Supp. 2d 1081, 1089-91 (C.D. Cal. 2011).

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Section 1983 does not require that

Boyd v. Benton County, 374 F.3d 773,

If an officer was “fundamental[ly]

Blankenhorn v. City of Orange, 485 F.3d 463, 481

The Court finds Jones was not sufficiently involved in

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Duray’s seizure of Plaintiff’s data to be liable under the

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integral participant doctrine.

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directed Plaintiff to provide his cell phone to CHP.

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¶ 110; Jones Decl. ¶ 15, ECF No. 42-9; Ex. 22 to Defs.’ Mot.,

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ECF No. 43-1.

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extraction to retrieve the work product” stored on Plaintiff’s

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phone.

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and Lunardi only extracted the work product discussed in Jones’s

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memo, the seizure would have fallen within the workplace

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inspection exception to the Fourth Amendment’s warrant

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requirement.

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the investigators’ seizure to extend more broadly than his memo

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described or that he ever authorized the seizure Duray

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ultimately conducted.

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involved in the seizure Plaintiff challenges, the Court cannot

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hold Jones liable under section 1983.

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Defendants’ motion for summary judgment with respect to

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Plaintiff’s unconstitutional seizure claim against Jones.

Jones signed the memorandum that
RSUF

The memo explained that CHP would “conduct a data

Ex. 22 to Defs.’ Mot.

But as explained below, had Duray

Plaintiff presents no evidence that Jones intended

Because Jones was not fundamentally

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The Court grants

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Lunardi, on the other hand, was fundamentally involved in

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the process of seizing data from Plaintiff’s phone.

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He brought Plaintiff’s phone to Duray for the forensic

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extraction Jones authorized.

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devices did not work, he partook in the deliberative process of

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deciding upon alternative ways to extract the data.

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¶¶ 116-17.

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messages between Plaintiff and Mellow.

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¶ 14; Lunardi Decl. ¶ 76.

Id.

RSUF ¶ 114.

When the forensic extraction

See RSUF

He helped Duray use a digital camera to record the
RSUF ¶ 116; Duray Decl.

And he tacitly stood by as Duray

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created a backup of Plaintiff’s phone—even though he knew this

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seizure exceeded the one Jones authorized.

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Lunardi Decl. ¶¶ 72, 77.

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Lunardi retrieved the phone without objection.

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Duray Decl. ¶ 17; Lunardi Decl. ¶ 77.

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level of involvement is enough to make Lunardi an integral

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participant in the challenged seizure.

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unreasonable, Lunardi partook in the constitutional violation.

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See RSUF ¶ 119;

Once Duray completed the backup,
See RSUF ¶ 121;

The Court finds this

Because this seizure was

Warrantless seizures are “per se unreasonable under the

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Fourth Amendment—subject only to a few specifically established

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and well-delineated exceptions.”

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(quoting United States v. Hawkins, 249 F.3d 867, 872 (9th Cir.

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2001) (internal quotation marks and citation omitted)).

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Defendants do not argue Duray had a warrant to seize the

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contents of Plaintiff’s cell phone.

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workplace inspection exception to the Fourth Amendment’s warrant

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requirement.

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workplace inspection exception pulls certain workplace searches

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and seizures out from under the Fourth Amendment’s warrant

Reply at 3-4.

Beck, 859 F.3d at 1196

Rather they invoke the

As its title suggests, the

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requirement.

To trigger this exception, a public employer must

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conduct the search or seizure for a “noninvestigatory, work-

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related purpos[e]” or to investigate workplace misconduct.

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of Ontario, Cal. v. Quon, 560 U.S. 747, 761-62 (2010); O’Connor

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v. Ortega, 480 U.S. 709, 725-26 (1987) (plurality opinion).

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Moreover, the search or seizure must be “justified at its

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inception” and conducted using measures that are “reasonably

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related to the objectives of the search and not excessively

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intrusive.”

Quon, 560 U.S. at 761-62.

City

To determine whether the

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measures an employer takes are “reasonably related” to the scope

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of the inspection, courts must consider the circumstances that

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gave rise to the search or seizure.

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Id.

The Court first finds Duray seized the contents of

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Plaintiff’s cell phone pursuant to a valid investigation of

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workplace misconduct.

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order, Plaintiff failed to produce any evidence that the

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investigation was criminal in nature.

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Moreover, the Court finds Defendants’ seizure was “justified at

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its inception.”

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facts show CHP policy required officers to relinquish on demand

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any work product they stored on their personal devices.

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¶ 4 (citing CHP General Order 100.95).

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Plaintiff’s relationship with Tawnya Mellow reasonably gave rise

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to the belief that Plaintiff communicated with a confidential

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informant using his personal cell phone.

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policy considered any such messages to be work product.

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¶ 4.

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product.

As explained in the Court’s previous

See Order at 16.

See Quon, 560 U.S. at 761.

The undisputed

RSUF

CHP’s investigation of

RSUF ¶¶ 103-04.

CHP

RSUF

Defendants initially planned to only extract that work
RSUF 115.

A customized data withdrawal would have
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fallen squarely within the workplace inspection exception.

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Quon, 560 U.S. at 761-62 (finding a public employer’s tailored

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review of an employee’s text messages was reasonable in light of

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the surrounding circumstances).

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See

But Duray ultimately seized more than the work-related text

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messages.

RSUF ¶ 119.

Indeed, he seized all the data stored on

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Plaintiff’s personal cell phone.

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to find that this seizure, though indiscriminate, was

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nonetheless reasonably related to the surrounding circumstances.

Id.

Defendants urge the Court

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Reply at 4-5.

The Court has already acknowledged the

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circumstances surrounding Plaintiff’s misconduct justified a

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careful, timely investigation.

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both pursue and conceal his relationship with Mellow, Plaintiff

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made false reports to law enforcement dispatch; disclosed

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confidential automated records to Mellow without authorization;

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revealed confidential information about SINTF operations; lied

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to his SINTF commander; and coordinated with Mellow to cover up

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their relationship.

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compromised federal and state criminal investigations.

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¶¶ 12, 23.

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fellow officers.

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believe that the information contained in Plaintiff’s text

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messages with Mellow would help them mitigate harm resulting

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from Plaintiff’s actions.

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No. 42-9.

Order at 4.

RSUF ¶¶ 14-16.

In an effort to

Plaintiff’s conduct
RSUF

It also jeopardized safety of Mellow and Plaintiff’s
RSUF ¶ 18.

CHP Investigators had reason to

See, e.g., Jones Decl. ¶ 4-10, ECF

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But the workplace inspection exception places limits on

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what measures an employer may take to gather information related

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to workplace misconduct—even when that information is really
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important.

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circumstances that gave rise to the seizure “and not excessively

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intrusive.”

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phone’s data to retrieve a single thread of texts is like

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watering a plant with a firehose.

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need.

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The measures must be “reasonably related” to the

Quon, 560 U.S. at 761-62.

Downloading all the cell

The means far exceeds the

This is true notwithstanding Defendants’ argument that the

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investigators tried other, less intrusive, methods first.

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Mot. at 7-8.

See

Lunardi and Duray initially tried to extract

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Plaintiff’s messages with Mellow directly from the phone—first,

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using CHP’s forensic tools to extract the data, and then, using

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a digital camera to manually record the message thread.

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7-8.

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whether the measures Defendants used to conduct their seizure

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were “excessively intrusive” is a question of fit, not a

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question of how many other methods were tried first.

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560 U.S. 761-63.

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mind, it is hard to imagine how Duray’s seizure here could have

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been more overbroad. Id.

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(2014), though addressing distinct legal issues, provides a

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description of cell phones’ storage capacity that helps

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illuminate the intrusiveness of the seizure in this case:

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Neither method proved successful.

Mot. at

But the question of

See Quon,

With Quon’s discussion of intrusiveness in

Riley v. California, 573 U.S. 373,

[T]he possible intrusion on privacy is not physically
limited . . . when it comes to cell phones. The
current top-selling smart phone has a standard
capacity of 16 gigabytes (and is available with up to
64 gigabytes). Sixteen gigabytes translates to
millions of pages of text, thousands of pictures, or
hundreds of videos. (citation omitted). . . . The sum
of an individual’s private life can be reconstructed
through a thousand photographs labeled with dates,
locations, and descriptions . . . .
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Id. at 394.

The volume of data Duray seized was vastly

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disproportionate to the amount of work product Defendants

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suspected to find on Plaintiff’s phone.

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was excessively intrusive in light of the surrounding

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circumstances, the workplace inspection exception does not

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apply.

Because this seizure

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Absent a valid exception to the warrant requirement,

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Duray’s seizure violated Plaintiff’s Fourth Amendment rights.

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Lunardi was an integral participant in this constitutional

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violation.

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2.

Clearly Established

A law enforcement officer who violates a person’s

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constitutional rights will still be entitled to qualified

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immunity if that right was not clearly established at the time

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the violation occurred.

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must define clearly established rights “with specificity,” based

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upon the facts of each case.

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Ct. 500, 503 (2019).

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its “contours [are] sufficiently definite that any reasonable

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officer would have understood that he was violating it.”

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(quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)).

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Fitzgerald, 457 U.S. at 818.

Courts

City of Escondido v. Emmons, 139 S.

A right is not clearly established unless

Id.

As Defendants argue, Plaintiff failed to identify any cases

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that clearly proscribed Duray’s seizure.

Reply at 13-14.

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Plaintiff cites to several cases in support of his argument that

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Duray’s seizure violated his clearly-established Fourth Amendment

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rights.

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373 (2014); United States v. Comprehensive Drug Testing, 621 F.3d

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1162 (9th Cir. 2010); United States v. Soriano, 361 F.3d 494 (9th

Opp’n at 9-13, 27 (citing Riley v. California, 573 U.S.

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Cir. 2004); United States v. Taketa, 923 F.2d 665, 675 (9th Cir.

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1991); United States v. Tamura, 694 F.2d 591 (9th Cir. 1983);

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United States v. Ganias, 755 F.3d 125 (2d Cir. 2014)).

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these cases touch upon germane issues that, like this case, lie

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at the intersection of technology and overbroad seizures.

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they do not help define the contours of the workplace inspection

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exception or how it applies when a public employer extracts work

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product from an employee’s personal cell phone.

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none of the cases Plaintiff cites placed the CHP investigators on

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“notice [that] their conduct [was] unlawful.”

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Many of

But

For this reason,

Hope v. Pelzer,

536 U.S. 730, 739 (2002).

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As Plaintiff’s right to be free from Duray’s overbroad

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seizure was not clearly established at the time the seizure

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occurred, Lunardi is entitled to qualified immunity.

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therefore grants Defendants’ motion for summary judgment on

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Plaintiff’s unlawful seizure claim against Lunardi.

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III.

The Court

ORDER

For the reasons set forth above, the Court GRANTS

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Defendants’ motion for summary judgment on Plaintiff’s unlawful

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seizure claim.

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IT IS SO ORDERED.
Dated: April 9, 2020

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