Hibbert v. Schmitz et al
Filing
10
OPINION: Defendants' motion to dismiss (d/e 6 ) is GRANTED IN PART and DENIED IN PART. Specifically: (1) The motion to dismiss is DENIED with respect to Hibbert's requests in Counts 1 and 2 for injunctive relief in the form of returnin g all copies of the information from her iPhone and destroying all copies of the video recordings taken of Hibbert in the conference rooms; (2) The motion to dismiss is GRANTED with respect to Hibbert's requests in Counts 1 and 2 for injunctive relief in the form of changes to ISP policy; and (3) The motion to dismiss is DENIED with respect to Hibbert's request in Count 1 for damages arising out of the alleged Fourth Amendment violations. Hibbert's request for damages in Count 2, which the motion to dismiss does not address, also survives. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 1/5/2017. (GL, ilcd)
E-FILED
Thursday, 05 January, 2017 11:01:57 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
)
CHRISTINA HIBBERT,
)
)
Plaintiff,
)
)
v.
)
)
LEO P. SCHMITZ, DEBORAH )
SIMENTAL, JOANN
)
JOHNSON, JEFFREY
)
JACOBS, JEFFREY KNAUER, )
ANGES KINDRED-JOHNSON, )
and MACHARIA FORTSON,
)
)
Defendants.
)
)
No. 3:16-cv-3028
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff Christina Hibbert has sued several defendants, all of
whom are or were employed by the Illinois State Police (ISP), under
42 U.S.C. § 1983, alleging the defendants violated several of her
civil rights. This cause is before the Court on the Motion to Dismiss
(d/e [6]) filed by Defendants Leo Schmitz, Deborah Simental, Joann
Johnson, Jeffrey Jacobs, and Jeffrey Knauer. For the reasons set
forth below, the motion to dismiss is GRANTED IN PART and
DENIED IN PART.
I.
BACKGROUND
The following facts come from the Complaint filed in this case
(d/e [1]) by Christina Hibbert and are accepted as true at the
motion to dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008).
Hibbert worked for the ISP from 2001 to 2014, though she was
never a sworn law enforcement officer. In November 2013, Officers
Agnes Kindred-Johnson and Macharia Fortson covertly installed
video cameras in Conference Rooms B and C of the ISP
headquarters. Those conference rooms afford ISP employees a
limited amount of personal privacy—the doors have locks—and
employees sometimes use the rooms to place personal phone calls
or to change clothes before working out.
Unaware of the covertly-installed cameras, Hibbert used the
conference rooms to change clothes and to “engage in other
personal matters,” and the cameras recorded Hibbert “in a state of
undress.” Compl. ¶¶ 67, 71. Although the purpose of installing the
cameras was to “establish that [Hibbert] and a co-worker were
Page 2 of 27
engaging in a romantic relationship,” the Complaint does not say
whether the cameras actually recorded such a liaison. Id. ¶ 53.
Regardless, Officers Kindred-Johnson and Fortson “disseminated
the information about Hibbert being nude” to other ISP employees,
and the ISP currently maintains a copy of the video images of
Hibbert “in a state of undress.” Id. ¶¶ 72, 74.
On May 6, 2014, Director Schmitz filed a complaint with the
ISP Merit Board seeking administrative discipline against an ISP
officer named Anthony McClure. Id. ¶¶ 22, 25. The Complaint
suggests, but does not state, that Officer McClure is the second
party to the alleged romantic relationship described above.
Prompted by Officers Simental, Johnson, and Jacobs, the ISP
Merit Board issued what the Complaint alleges was a “purported
subpoena.” The purported subpoena was to be served on Hibbert,
and read, “YOU ARE HEREBY NOTIFIED to surrender your
personal cellular phone with number [redacted] immediately.” Id. ¶
27.
Although the ISP did not require Hibbert to carry a cell phone,
Hibbert, like many ISP employees, nonetheless carried a personal
iPhone, which she had owned since 2012. Hibbert used her iPhone
Page 3 of 27
for normal purposes: to place and take calls; to text and email
family, friends, and others including lawyers, doctors, and
counselors; to take and store personal photographs; and to access
the internet.
On May 20, 2014, Officer Johnson handed Hibbert the
subpoena while Hibbert was at her desk at the ISP headquarters
building. Hibbert indicated that she did not want to turn over her
iPhone and asked whether she had to do so. Officer Johnson
responded that Hibbert had no choice in the matter. Hibbert asked
if she could call an attorney first, and a different “ISP official” told
Hibbert that she could not and that she needed to turn over the
phone immediately. Id. ¶ 34.
Believing that she had no choice other than to do what she
was told, Hibbert handed her iPhone to Officer Johnson. Hibbert
was also told to provide the password to her phone, which she
understood to be “a direct order.” The Complaint does not identify
the person who ordered Hibbert to provide her password. Hibbert
gave Officer Johnson the password. Id. ¶ 36.
Officer Johnson gave the phone to Knauer, a non-sworn ISP
employee, who downloaded a complete digital copy of all of the
Page 4 of 27
information on Hibbert’s iPhone, including contact information,
private emails, text messages, photographs, financial information,
and medical information. Knauer then gave this digital information
to Officers Simental, Johnson, and Jacobs. The officers returned
Hibbert’s iPhone, but they retained the digital information. The ISP
currently retains a complete record of the information from the
iPhone. Id. ¶¶ 40–42.
Hibbert’s employment with the ISP ended shortly afterward, on
July 9, 2014. Id. ¶ 11. The Complaint does not state whether
Hibbert quit or was fired.
The Complaint raises two claims. In Count 1, Hibbert claims
that the taking and copying of her iPhone was an unlawful seizure
under the Fourth Amendment and violated her Fourth Amendment
right to privacy. Hibbert asks the Court: (1) to order ISP Director
Schmitz and Officers Simental, Johnson, and Jacobs to return all
copies of any information retained from her iPhone and to modify
ISP policy to protect ISP employees from future Fourth Amendment
violations; (2) to award Hibbert her costs and attorney’s fees; and (3)
to assess actual and punitive damages against Knauer and Officers
Simental, Johnson, and Jacobs.
Page 5 of 27
In Count 2, Hibbert claims that the covert video recording
violated her Fourth Amendment right to privacy. Hibbert asks the
Court: (1) to order Director Schmitz and Officer Simental to destroy
all copies of any covertly recorded video of Hibbert and to modify
ISP policy to ensure such recording does not occur in the future; (2)
to award Hibbert her costs and attorney’s fees; and (3) to assess
actual and punitive damages against Officers Kindred-Johnson and
Fortson.
Defendants Kindred-Johnson and Fortson, who are implicated
in Count 2 only, filed an answer in response to the Complaint.
The other defendants—Knauer, Director Schmitz, and Officers
Simental, Johnson, and Jacobs (hereinafter, “Defendants”)—have
filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). They request that: (1) the Court deny Hibbert’s requests
for injunctive relief in both counts; (2) the Court dismiss Count 1
because the service and execution of an administrative subpoena
does not constitute a Fourth Amendment search or seizure; (3) the
Court dismiss Count 1 on absolute immunity grounds; and (4) the
Court dismiss Count 1 on qualified immunity grounds.
II.
LEGAL STANDARD
Page 6 of 27
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 458 (7th
Cir. 2007). To state a claim for relief, a plaintiff need only provide a
short and plain statement of the claim showing she is entitled to
relief and giving the defendants fair notice of the claims. Tamayo,
526 F.3d at 1081.
When considering a motion to dismiss under Rule 12(b)(6), the
Court construes the complaint in the light most favorable to the
plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in the plaintiff’s favor. Id.
However, the complaint must set forth facts that plausibly
demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007). A plausible claim is one that alleges factual
content from which the Court can reasonably infer that the
defendants are liable for the misconduct alleged. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Merely reciting the elements of a cause
of action or supporting claims with conclusory statements is
insufficient to state a cause of action. Id.
III.
ANALYSIS
Page 7 of 27
A.
The Complaint indicates that Hibbert’s requests for
return of the iPhone information and destruction of
the video footage are appropriate prayers for
injunctive relief but the Complaint does not establish
that Hibbert is entitled to a change to ISP’s policies.
In the Complaint, Hibbert seeks equitable relief in the form of:
(1) the return of all copies of any information Defendants obtained
from her phone; (2) the destruction of any and all copies of video
footage taken in the conference room; and (3) modification of ISP
policies such that actions similar to the search of her phone and
the videotaping of the conference room are not taken against any
ISP employees in the future.
Equitable relief is unavailable except when the legal remedies
available to plaintiff are inadequate, such as when the harm to the
plaintiff is ongoing or there is a likelihood that the harm will recur.
O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974) (“Past exposure to
illegal conduct does not in itself show a present case or controversy
regarding injunctive relief, however, if unaccompanied by any
continuing, present adverse effects.”); Janowski v. Int’l Brotherhood
of Teamsters Local No. 710 Pension Fund, 673 F.2d 931, 940 (7th
Cir. 1982), vacated on other grounds by 463 U.S. 1222 (1983)
Page 8 of 27
(“[I]njunctive relief is not appropriate to prevent the possible
occurrence of an event at some indefinite future time.”).
Defendants argue that they do not plan to do anything with
the phone information and the video footage, such that injunctive
relief is an inappropriate remedy for Hibbert’s “past exposure” to
allegedly illegal conduct. Def. Mem. (d/e [7]) at 4. Hibbert, on the
other hand, argues that she continues to suffer harm by the ISP’s
continued possession of the personal information from her phone
and of the video footage in the form of “stress and emotional
distress” from the invasion of privacy. Compl. ¶¶ 47–48, 76. The
Court finds that Hibbert’s claims of ongoing stress due to the
continued invasion of privacy sufficiently state ongoing adverse
effects to survive Defendants’ motion to dismiss. Although return of
the information copied from her phone and destruction of the video
footage would not return Hibbert to the status quo ante, this Court
may order such relief as a partial remedy to Hibbert’s claim of
ongoing stress caused by ISP’s continued possession of such items.
See EEOC v. Aerotek, Inc., 815 F.3d 328, 332 (7th Cir. 2016).
Defendants’ motion to dismiss Hibbert’s request for the return of all
copies of the personal information from her iPhone and the
Page 9 of 27
destruction of all copies of the video images taken in the conference
room is accordingly DENIED.
However, Hibbert can no longer be affected by ISP employee
policies because she is no longer an employee. Because Hibbert is
no longer directly affected by ISP policies and actions towards its
employees, she does not have a sufficient legal interest to pray for
relief in the form of a change to ISP policies. See McKinney v.
Illinois, 720 F. Supp. 706, 709 (N.D. Ill. 1989) (dismissing claim for
injunctive relief against plaintiff’s former supervisor because
plaintiff was no longer employed and therefore alleged harassment
was unlikely to recur). The Court accordingly GRANTS Defendants’
motion to dismiss Hibbert’s requests for changes to ISP policies in
Counts 1 and 2 of the Complaint and DISMISSES said claims.
B.
The Complaint alleges facts sufficient to constitute
search and seizure under the Fourth Amendment.
Count 1 of the Complaint alleges that the taking and copying
of Hibbert’s iPhone was an unlawful seizure and violated her Fourth
Amendment right to privacy. Defendants argue that Hibbert has
failed to state a claim because the facts set forth in the Count 1 do
not constitute a search or seizure under the Fourth Amendment.
Page 10 of 27
For the following reasons, Defendants’ request for dismissal of
Count I for failure to state a Fourth Amendment search or seizure is
DENIED.
i.
Hibbert has stated a Fourth Amendment seizure.
Defendants argue that Hibbert has not stated facts
constituting a search or seizure because service and execution of a
subpoena issued by a government agency, which Defendants call an
“administrative subpoena,” on a government employee does not
implicate the Fourth Amendment. Hibbert argues that the
subpoena was invalid because it was beyond the scope of the Merit
Board’s statutory powers and because Defendants improperly
treated the subpoena as a warrant. Pl. Mem. in Opp. (d/e [9]) at 8–
9; Compl. ¶¶ 29–30.
The Fourth Amendment’s protections against unreasonable
searches and seizures are enforceable against the states by virtue of
the Fourteenth Amendment’s Due Process Clause. Mapp v. Ohio,
367 U.S. 643, 650 (1961). To establish a Fourth Amendment
seizure violation, a plaintiff must show (1) that the defendant’s
conduct constituted a “seizure,” and (2) that the seizure was
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“unreasonable.” Carter v. City of Milwaukee, 743 F.3d 540, 543
(7th Cir. 2014).
A seizure occurs when a person’s freedom is restrained by
means of physical force or a show of authority, such as a threat of
arrest. Id. An officer makes a show of authority in the role of law
enforcement rather than in the role of supervisor. Driebel v. City of
Milwaukee, 298 F.3d 622, 642 (7th Cir. 2002) (“A seizure occurs
only when a person submits to the show of lawful authority or the
application of physical force by an officer acting in the role of a law
enforcement agent rather than as a public employer or
supervisor.”). As such, a government employer’s threat of
employment disciplinary action does not constitute a show of
authority. Carter, 743 F.3d at 543–44 (“As in the private sector,
public employees must often comply with their supervisors’ orders
and can suffer consequences at work for failure to comply. . . . The
Fourth Amendment does not protect against the threat of job loss.”);
Caldwell v. Jones, 513 F. Supp.2d 1000, 1008 (N.D. Ind. 2007)
(school district’s subpoena requiring employee to appear and testify
at an administrative hearing, coupled with threat of possible
disciplinary action by employer for failure to comply, was “too
Page 12 of 27
feeble” to constitute a Fourth Amendment show of authority
because employee had option not to appear at hearing).
Additionally, an employer does not violate the Fourth Amendment
by serving an unauthorized subpoena on an employee. Id. at 1013
(purportedly unauthorized subpoena issued by plaintiff’s employer
did not constituted a seizure).
On the other hand, the mere fact that an officer acts pursuant
to a subpoena issued by a government employer does not prevent a
finding that the officer used a show of authority constituting a
seizure; the question is, considering all the circumstances
surrounding the encounter, “whether reasonable people in the
position of the subordinate officers would have feared seizure or
detention if they had refused to obey the commands given by their
superior officers. Carter, 743 F.3d at 544; see also Driebel, 298
F.3d at 642–43 (police officers were not seized when superiors
ordered them to answer questions at internal affairs division in the
course of a criminal investigation into the officers’ actions while on
duty because officers were threatened only with employment
consequences if they refused).
Page 13 of 27
Here, taking the facts set forth in the Complaint as true,
Officer Johnson handed Hibbert an administrative subpoena and
told Hibbert that she had to relinquish her phone. Unlike the
plaintiff in Caldwell, Hibbert was served the subpoena by a law
enforcement officer rather than by an agency supervisor. Further,
although ISP is a paramilitary organization in which officers must
take orders from higher-ranking officers, Hibbert was not a sworn
officer. Compl. ¶ 35 (“The ISP is a para-military organization and
its employees are expected to follow orders from sworn officers.”);
see Carter, 743 F.3d at 543.
However, questions of fact remain about the service of the
subpoena and how Defendants obtained Hibbert’s iPhone and
password. Without elucidation of the circumstances surrounding
the encounter, the allegation that Defendants told Hibbert she had
to surrender her phone could indicate a threat of employment
discipline or a show of authority signaling that Hibbert was not free
to decline to comply. See Carter, 743 F.3d at 545–46 (supervising
officer’s statement that supervisee officer could not leave scene until
supervising officer patted him down, and accompanying pat-down,
was not a seizure due to nature of officer’s employment and
Page 14 of 27
because supervising officer did not tell supervisee that he was the
subject of a criminal investigation, did not touch supervisee to stop
him from leaving, did not read supervisee his rights, and did not
threaten arrest). The Complaint does not allege that Defendants
touched Hibbert, threatened her with arrest, read her rights, or
stated that she was the subject of a criminal investigation. On the
other hand, the Complaint does not allege that Defendants told
Hibbert that the subpoena was pursuant to an investigation into
office misconduct or that she could be subject to disciplinary action
if she failed to comply.
Because questions of fact remain regarding the circumstances
in which Defendants served the subpoena on Hibbert and took her
phone, the Court cannot conclude at the motion to dismiss stage
that a reasonable employee in Hibbert’s shoes would not have
feared arrest or detention for failing to comply with the subpoena.
Consequently, the Court DENIES Defendants’ request to dismiss
Count 1 for failure to state a Fourth Amendment seizure.
ii.
Hibbert has stated a Fourth Amendment search.
Hibbert also alleges that Defendants violated her Fourth
Amendment right to privacy by copying and maintaining a copy of
Page 15 of 27
the personal information contained on Hibbert’s iPhone.
Defendants argue that the Complaint fails to state a Fourth
Amendment search.
To state a Fourth Amendment search, a plaintiff must
establish that the official’s action infringed “an expectation of
privacy that society is prepared to consider reasonable.” O’Connor
v. Ortega, 480 U.S. 709, 715 (1987) (plurality opinion). To state a
Fourth Amendment violation of privacy claim, the plaintiff then
must demonstrate that the government’s invasion of her reasonable
expectation of privacy was unreasonable. Id.
The Complaint alleges that Hibbert had a subjective
expectation of privacy in her iPhone. Compl. ¶ 44. Whether an
employee’s expectation of privacy is reasonable is determined on a
case-by-case basis, taking into account a particular office’s
practices and procedures. O’Connor, 480 U.S. at 715 (“[T]he
reasonableness of an expectation of privacy . . . is understood to
differ according to context.”); Narducci v. Moore, 572 F.3d 313, 319
(7th Cir. 2009) (“Given the great variety of work environments in the
public sector, the question whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case basis.”).
Page 16 of 27
While the operational realities of a public workplace may make
some government employees’ expectations of privacy unreasonable,
individuals do not lose Fourth Amendment rights merely because
they work in government rather than in the private sector.
Narducci, 572 F.3d at 319; O’Connor, 480 U.S. at 717.
The Court finds that the facts as alleged in the Complaint
indicate that Hibbert had a reasonable expectation of privacy in her
phone. The nature of “smart” phones is that they contain an
immense amount of information about the user. See Riley v.
California, 134 S. Ct. 2473, 2488–89 (2014) (“Modern cell phones . .
. implicate privacy concerns far beyond those implicated by the
search of a cigarette pack, a wallet, or a purse.”). Much of that
information can be extremely personal, including text messages and
email conversations with loved ones, geographical location data
about the user’s movements, purchase history, internet viewing
preferences, and the user’s photographs. Individuals may also use
their smart phones to store important information, including
personal passwords, banking and finance information, and medical
and health care information. This capacity makes modern cell
phones a cornucopia of personal information, and, accordingly,
Page 17 of 27
society recognizes the reasonableness of the expectation of privacy
in one’s cell phone. See id. at 2489–90 (“One of the most notable
distinguishing features of modern cell phones is their immense
storage capacity. . . . [A] cell phone collects in one place many
distinct types of information—an address, a note, a prescription, a
bank statement, a video—that reveal much more in combination
than any isolated record. . . . The sum of an individual’s private life
can be reconstructed through a thousand photographs labeled with
dates, locations, and descriptions.”).
Indeed, the Complaint alleges that Hibbert’s phone contained
personal information including communications with friends,
family, physicians, private photographs, and personal financial
information. Compl. ¶ 45. Further, the phone at issue here was
Hibbert’s personal cell phone, rather than an employer-issued
phone. The phone was also password-protected. The Complaint
further alleges that ISP did not prohibit employees from having their
personal cell phones while at work and that most administrative ISP
employees, like Hibbert, carried their personal cell phones in the
office. Id. ¶ 44. The Court finds that the personal nature of smart
phones such as Hibbert’s iPhone, which was personal and
Page 18 of 27
password-protected and was allowed at work establishes that
Hibbert had a reasonable expectation of privacy in her iPhone, just
as she had a reasonable expectation of privacy in her office desk,
files, etc. See O’Connor, 480 U.S. at 719 (hospital employee had a
reasonable expectation of privacy in his desk and file cabinets in his
office); Narducci, 572 F.3d at 321 (village employee had a
reasonable expectation of privacy in his phone line at work to be
free from recording by his employer).
By copying the full set of information on the phone,
Defendants infringed on that reasonable expectation of privacy.
The Court accordingly finds that the Complaint sufficiently alleges a
search under the Fourth Amendment.
C.
Defendants are not entitled to absolute immunity.
Defendants request dismissal of Count 1 on the basis of
absolute immunity. Quasi-judicial bodies are entitled to absolute
immunity when carrying out duties that are functionally equivalent
to those of a judge or prosecutor. Heyde v. Pittenger, 633 F.3d 512,
517 (7th Cir. 2011). Courts take a functional approach in
considering whether the actions performed are judicial or
prosecutorial. Id. Defendants contend that the ISP Merit Board
Page 19 of 27
was a quasi-judicial body when it issued the subpoena in this case.
Defendants argue that they therefore are entitled to absolute
immunity when, Defendants allege, they acted to enforce a facially
valid order such as the subpoena.
However, the actions Defendants took to enforce the subpoena
consisted of serving it on Hibbert and making statements to ensure
her compliance, ordering her to provide the phone’s password, and
copying the information from the phone. In those respects, the
nature of Defendants’ actions cannot reasonably be interpreted as
those of a judge or prosecutor. Rather, such actions are the
investigative actions of an executive branch of government, and
thus are not entitled to absolute immunity. See Hartman v. Moore,
547 U.S. 250, 262 n.8 (2006) (no absolute immunity for prosecutor
for investigatory conduct); Richman v. Sheahan, 270 F.3d 430, 437
(7th Cir. 2001) (“The policies articulated in our quasi-judicial
immunity cases have less force when, as in this case, the
challenged conduct is the manner in which the judge’s order is
carried out, and not conduct specifically directed by a judge.”). The
Court accordingly DENIES Defendants’ request to dismiss Count 1
on the basis of absolute immunity.
Page 20 of 27
D.
Defendants are not entitled to qualified immunity.
Defendants also seek dismissal of Count 1 on the grounds of
qualified immunity. Defendants are shielded from civil damages
claims by qualified immunity if they did not violate a clearly
established constitutional or statutory right. Viilo v. Eyre, 547 F.3d
707, 709 (7th Cir. 2008). Whether Defendants are entitled to
qualified immunity turns on whether the right Defendants allegedly
violated was sufficiently clear such that no reasonable officer would
have found the conduct to be lawful and whether the Complaint
sufficiently alleges that Defendants violated that right.
A right is clear if it provides reasonable notice to government
officials that certain conduct violates the constitutional right.
Narducci, 572 F.3d at 318. To give such notice, the right at issue
must be particularized with regard to the circumstances with which
the official was confronted. Dibble v. Quinn, 793 F.3d 803, 808
(7th Cir. 2015) (“The right allegedly violated must be established not
as a broad general proposition but in a particularized sense so that
the contours of the right are clear to a reasonable official.”) (internal
quotations marks omitted). The right may not be articulated as a
broad proposition; the formulation must have sufficiently narrow
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contours such that a reasonable official would understand that his
actions violated that right. Anderson v. Creighton, 483 U.S. 635,
640 (1987).
Reasonable notice does not require that the exact action at
issue has previously been held unlawful, so long as its
unlawfulness is “apparent.” Id. (“[I]n the light of pre-existing law
the unlawfulness must be apparent.”); Hope v. Pelzer, 536 U.S. 730,
741 (2002) (“Although earlier cases involving ‘fundamentally similar’
facts can provide especially strong support for a conclusion that the
law is clearly established, they are not necessary to such a finding.
The same is true of cases with ‘materially similar’ facts.”).
In this case, the particularized right at issue in Count I is
Hibbert’s right to be free from Defendants’ taking her personal
smart phone pursuant to an administrative subpoena, when the
officers serving the subpoena said Hibbert had to relinquish the
phone, denied her request to speak with her attorney prior to
complying, and said that Hibbert must immediately comply, and
then made a complete digital copy of the entire contents of the
phone. Yet, the Court is unaware of existing case law that
addresses these particular circumstances. Nonetheless, the Court
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finds that the relevant caselaw made the unlawfulness of the facts
pled in Count I of the Complaint clear.
Defendants argue that any right to be free from an
administrative subpoena for a personal cell phone was unclear
because no existing case so holds. However, such a formulation of
the right at issue fails to take into account the manner in which the
officers served the subpoena and the purpose of the search.
It was clearly established at the time of the seizure of the
phone that, while a threat of disciplinary action by an employer
does not rise to the level of a seizure, service of an administrative
subpoena can rise to the level of a Fourth Amendment seizure if the
officer uses a show of authority such that the individual does not
feel free to refuse. Carter, 743 F.3d at 543–44; Driebel, 298 F.3d at
641–42. Giving Hibbert the inference that she had to surrender her
phone because she reasonably feared arrest or detention,
Defendants were on notice that officers who threaten a government
employee with arrest have conducted a seizure even if they also
have an administrative subpoena.
It was also clear that the scope of a warrantless workplace
search must be reasonably related to the purpose of the search. A
Page 23 of 27
government employer does not need a warrant for a work-related
search; such searches need only be reasonable in the
circumstances. O’Connor, 480 U.S. at 725–26. For the invasion to
have been reasonable, it must have been “justified at its inception”
and “reasonably related in scope to the circumstances which
justified the interference in the first place.” Id. at 726.
In City of Ontario, California v. Quon, in finding that a police
department’s review of text messages made on department-issued
pagers was not a violation of the Fourth Amendment, the Court
explained that the fact that the search was limited to text messages
sent during working hours and to text messages sent on employee’s
government-issued pager during a two-month span contributed to
the reasonableness of the search. 560 U.S. 746, 762–63 (2010)
(legitimate purpose of search, an audit of employee pager messages
to determine propriety of per-month character limit, limited
expectation of privacy in government-issued pager, and tailoring of
scope of search supported finding that search was reasonable). On
the other hand, in Narducci, the Seventh Circuit found that
recording every phone call for a six-year period, with no notice to
employees, made the scope of the search unreasonably broad in
Page 24 of 27
relation to the search’s purpose, to monitor use of department
phones for personal calls and instances of abusive customers. 572
F.3d at 321.
The Complaint does not allege any purpose for the search in
this case. Because the purpose of the search remains a question of
fact, the Court cannot conclude that Defendants did not conduct an
unreasonable search by copying the entire contents of Hibbert’s
phone. If, as implied by the pleadings, the purpose of the search
was to investigate workplace misconduct related to an office
romance, Defendants were on notice that failure to limit the search
to certain types of data, such as communications with certain
individuals or made during certain time periods, violates the Fourth
Amendment.
Finally, it was well-established that the warrant exception for
work-related searches only applies if the purpose of the search was
in fact work-related. O’Connor, 480 U.S. at 722–23. However, the
Complaint does not allege that Defendants copied Hibbert’s phone
pursuant to a work-related purpose, and yet the Complaint alleges
that Defendants did not have a warrant for the actions set forth in
Count 1. Compl. ¶ 31. Defendants were on notice that warrantless
Page 25 of 27
work-place searches required a work-related purpose. From the
facts pled in the Complaint, the Court cannot conclude that
Defendants did not search Hibbert’s phone pursuant to a workrelated purpose.
From the facts pled in the Complaint, the Court cannot
conclude that Defendants did not violate a clear constitutional right
and were entitled to qualified immunity. Defendants’ request for
dismissal of Count 1 on the basis of qualified immunity is
accordingly DENIED.
IV.
CONCLUSION
For the reasons above, Defendants’ motion to dismiss (d/e [6])
is GRANTED IN PART and DENIED IN PART. Specifically:
(1)
The motion to dismiss is DENIED with respect to
Hibbert’s requests in Counts 1 and 2 for injunctive relief
in the form of returning all copies of the information from
her iPhone and destroying all copies of the video
recordings taken of Hibbert in the conference rooms;
(2)
The motion to dismiss is GRANTED with respect to
Hibbert’s requests in Counts 1 and 2 for injunctive relief
in the form of changes to ISP policy; and
Page 26 of 27
(3)
The motion to dismiss is DENIED with respect to
Hibbert’s request in Count 1 for damages arising out of
the alleged Fourth Amendment violations.
Hibbert’s request for damages in Count 2, which the motion to
dismiss does not address, also survives.
ENTERED: January 5, 2017
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 27 of 27
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