Glick v. Molloy et al

Filing 22

ORDER ADOPTING IN PART AND REJECTING IN PART the FINDINGS and RECOMMENDATION 19 as set forth in Order. IT IS FUTHER ORDERED that Edwards's Motion for Judgment on the Pleadings 9 is GRANTED with respect to Glick's Fourth Amendment claims and DENIED without prejudice with respect to Glick's two-prong retaliation claim under the First Amendment. Signed by Judge Donald W. Molloy on 6/29/2012. (NOS, ) Copy mailed to Glick this date.

FILED

JUN 2 9 2012
IN TIIE UNITED STATES DISTRICT COURT

PATRICK E DUFFY. CLERII
ay'' 'DEl'\JTY==Q.ERK;c;au.'l:lMl;;;SIIO\J1.A"'' *.......­

FOR TIIE DISTRICT OF MONTANA
MISSOULA DIVISION
RON GLICK,

Plaintiff,
vs.
DAVE EDWARDS,
Defendant.

CV 11-168-M-DWM-JCL

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ORDER

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United States Magistrate Judge Jeremiah C. Lynch entered Findings and
Recommendations on April 24, 2012, recommending that the Court grant in part
and deny in part Defendant Dave Edwards's Motion for Judgment on the
Pleadings under Federal Rule of Civil Procedure 56(c). Edwards timely filed
objections and thus is entitled to de novo review of those findings or
recommendations to which he objects. 28 U.S.C. § 636(b)(1). Plaintiff Ron Glick
has not filed objections. The portions of the Findings and Recommendations not
specifically objected to are reviewed for clear error. McDonnell Douglas Corp. v.

Commodore Bus. Mach.. Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

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For the reasons stated below, Judge Lynch's Findings and
Recommendations are adopted in part and rejected in part. Judgment on the
pleadings is granted in Edwards's favor as to Glick's search claim for the reasons
set out by Judge Lynch and as to Glick's seizure claim because Edwards is entitled
to qualified immunity. Judgment on the pleadings is denied as to the two-prong
retaliation claim. Because the parties are familiar with the history and facts of this
case, however confusing they may be, the facts are only set out when necessary to
explain this decision.
ANALYSIS

A. Retaliatory conduct
Judge Lynch recommended denying the Rule 56(c} motion on Glick's claim
that Edwards, Glick's probation officer, retaliated against him for engaging in
activities protected by the First Amendment. He construed the pleadings to allege,
first, that Edwards filed a Report of Violation seeking to revoke Glick's term of
probation in retaliation for Glick filing a petition for writ of habeas corpus on
April 22, 2009. Edwards filed the Report of Violation the next day. It stated
Glick failed to obtain employment or sexual offender treatment, in violation of
three conditions of his probation. (Doc.8-5.) Judge Lynch also found that Glick
adequately alleged that Edwards retaliated against him for pursuing civil legal
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remedies for the recovery of personal property in an unrelated matter. (Doc. 19 at
8.) Edwards argues that there is insufficient factual support to uphold any
retaliation claim and that the allegations are conclusory and implausible.
The Court may consider "documents attached to the complaint, documents
incorporated by reference in the complaint, or matters ofjudicial notice" in
determining a motion under Rule 12(bX6) or Rule 56(c). United States v. Ritchie,
342 F3d 903,908 (9thCir. 2003); Cafasso, United States ex rei. v. General
Dynamics C4 Systems, Inc., 637 F 3d 1047, 1054 n. 4 (9th Cir. 2011). Under the
incorporation-by-reference doctrine, it is appropriate to consider the Report of
Violation (doc. 8-5) as well as the two documents attached to Glick's "Rebuttal"
to Edwards's Reply Brief on the Rule 56(c) motion, a blog entry dated April 22,
2009 (doc. 18-1) and a letter to Glick from the Clerk of the Montana Supreme
Court dated May 29, 2009 (doc. 18-2).
The only habeas petition that it appears Glick formally filed with the
Montana Supreme Court was filed April 20, 2010, nearly a year after Edwards
filed the Report of Violation. (See doc. 21 at 12-13.) However, Glick also
mailed a petition to the Montana Supreme Court in April 2009 that was returned to
him and was not filed. (Doc. 18-2.) It is this attempt to file a petition that Glick
claims spurred the Report ofViolation (docs. 2 at 16, 14 at 2), and there is no
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evidence that Edwards knew the attempt had failed when he sought to revoke
Glick's probation. Edwards cites no authority suggesting that a failed attempt to
exercise one's right to access the courts is not protected under the First
Amendment.
On April 22, 2009, Glick also discussed his plan to submit this petition on

his blog. (Doc. 18-1.) Apparently, Edwards monitored the blog and Glick had
discussed this plan before, for Edwards referred to a different blog entry in the
Report of Violation. (Doc. 8-6 at 2 ("The Defendant wrote on his website, 'It is
looking like I will be violated before too much longer. Each time I meet with my
probation officer, new pressure is exerted upon me with unrealistic demands. As
of today, I am left with no choice but to pursue filing a petition for writ of habeas
corpus to try to relieve myself of this unlawful custody."').} Again, Edwards cites
no authority to suggest that the First Amendment does not protect a person's right
to speak freely online.
Retaliation for the exercise of a constitutional right is actionable under 42
U.S.c. § 1983 even if the retaliatory act, if done for different reasons, would have
been proper. Wilson v. City o/Fountain Vall.ry, 372 F.Supp.2d 1178, 1186 (C.D.
Cal. 2004 (citing Mt. Healthy City Bd.

0/Educ. v. Doyle, 429 U.S. 274, 283-84

(1977». Glick bears the initial burden of proving that he took a constitutionally
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protected action, that Edwards thereafter took an adverse action against him, and
that Edwards did not intend to advance any legitimate penological goal. Id at
1187 (holding that the test described in Bruce v. Ylst, 351 F.3d 1283, 1288 (9th
Cir. 2003), for assessing a retaliation claim by a prisoner also applies to a claim
for retaliation by a parolee or probationer).
At this stage, Glick has adequately advanced allegations that, ifproved,
would satisfy this test. He was attempting to pursue legal action and blogging
about his experiences; Edwards sought to revoke his probation; and the timing and
certain portions of the Report of Violation suggest Edwards's action may have
been motivated by retaliatory intent. For example, the Report states:
The Defendant has not shown an initiative for employment, but rather
maintains a website claiming his innocence and criticizing his Victim,
her family, and any form of government agency.
My observation is that he has utilized his time to continue his legal
wrangling and pursue his innocence.
The Defendant has expressed in writing his contempt for the conditions
imposed by the Court and has used his time out ofprison to continue his
legal agenda rather than seek a means of support or sex offender
treatment.
[nhe Defendant's energy expended on writing writs, subpoenas, and
maintaining his website all show he is capable of supporting himself.
(Doc. 8-5 at 1-3.) There is sufficient factual support to conclude it is at least

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plausible the filing of the Report was a retaliatory act for Glick's engagement in
constitutionally protected activities. The burden would then shift to Edwards to
show by a preponderance of the evidence that the adverse action was, in fact,
intended to accomplish a legitimate objective. Wilson, 372 F. Supp. 2d at 1187;
Bruce, 351 F.3d at 1289.
Edwards also argues that the second prong of Glick's retaliation claim-that
Edwards retaliated against him in an unrelated civil action seeking the recovery of
personal property--does not "contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S.
662,.---> 129 S. Ct. 1937, 1949 (2009). Glick's Complaint states:
Plaintiff further attests that he has been informed and believes and
thereon alleges that Defendant Edwards has contacted other Defendants
in Plaintiff s property suit and specifically sabotaged efforts of
Plaintiff's to settle this cause as well, actively working to further the
racketeering enterprise initiated against Plaintiff in depriving him ofhis
liberty interest in owning property.
(Doc. 2 at 18.) And later in the Complaint, after alleging other purported abuses
by Edwards, Glick states:
...[Edwards] sought greater and greater escalations of abuse against
Plaintiff for the express purpose of having Plaintiff abandon his legal
efforts or be returned to prison for frivolous reasons...
(ld. at 19.) Though the allegation is not very detailed, it is sufficient at this stage

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and in the context of Glick's other allegations to preclude judgment on the
pleadings, and discovery procedures will clarify the claim.
Edwards's argument that he is entitled to qualified immunity because
Glick's claim amounts to a "bare allegation[] of malice" fails in light of the
discussion above. Accordingly, I concur with Judge Lynch and deny Edwards's
motion to grant judgment in his favor on Glick's retaliation claim.

B. Search and seizure
Without a warrant, Edwards searched Glick's computer for pornography.
Though he did not find anything during the search, he seized the computer to
search it further, retaining possession of it for two months. Glick alleged that both
the search and the seizure violated his Fourth Amendment rights.
Judge Lynch found that Glick had been "unambiguously informed," United

States v. Knights, 534 U.S. 112, 118-19 (2001), that the conditions of his
probation require him to submit to warrantless searches, prohibit him from
possessing pornography, and allow his supervising officer "access to all computers
accessible to him." (Doc. 8-3 at 2,6, and 7.) The probation conditions thus
significantly reduce Glick's reasonable expectation ofprivacy, and because of his
status as a probationer, he is subject to searches based on no more than reasonable
suspicion. Knights, 534 U.S. at 119-20. Considering Glick's own allegation that
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Edwards had been "provided written affidavits from [Glick's] friend who accessed
pornography on [Glick's] computer" (doc. 13 at 6), Edwards's suspicion that
pornography may be on the laptop was reasonable. The search was thus lawful.
In contrast, the probation conditions do not "unambiguously" authorize a
probation officer to seize Glick's personal property without a warrant. Judge
Lynch thus recommended denying Edwards's motion for judgment on the
pleadings as to this claim. However, Judge Lynch did not consider whether
Edwards is entitled to qualified immunity. I conclude that he is because the law is
not clearly established in this area. See Wilson v. Layne, 526 U.S. 603, 615
(1999).
Warrantless seizures are per se unreasonable under the Fourth Amendment.
Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (citations omitted). However,

an officer may seize contraband found while conducting a lawful search, id. at
374, if the facts available to him "warrant a man of reasonable caution in the belief
... that certain items may be contraband or stolen property or useful as evidence
of a crime." Texas v. Brown, 460 U.S. 730, 742 (1983) (stating the probable cause
standard in a case not involving a probationer or parolee) (citation omitted). It is
unclear whether the lower reasonable suspicion standard would apply to a seizure
of property from a probationer when his probation conditions do not clearly permit
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a warrantless seizure. See Knights, 534 U.S. at 119-20 (concluding that a
probationer's status as well as the conditions of his probation together diminish
his right to privacy). It is also unclear whether reasonable suspicion or probable
cause that arises prior to a search continues to support a seizure following the
search where the search yields no new incriminating evidence. See United States
v. Wilson, 565 F.3d 1059, 1065 (8th Cir. 2009) (upholding the seizure of a cell
phone and video camera when the officer knew a child pornography victim had
alleged such items had been used to record her and the video camera was found in
the same location the victim had described).
Finally, "[t]he contours of [the Fourth Amendment's] protections in the
context of computer searches pose difficult questions." United States v. Adjani,
452 F.3d 1140, 1152 (9th Cir. 2006). Computer searches often need to take place
off-site; thus, the seizure of the computer or transfer of its contents is often
necessary. Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L.
Rev. 531, 534 (2005) ("[C]omputer searches typically occur offsite on a
government computer that stores a copy of the suspect's hard drive."). However,
the Ninth Circuit has emphasized the need for "specific authorization" for the
seizure ofinterrningled documents such as are found on a computer, and held that
such a warrant should only be granted "where on-site sorting is infeasible and no
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other practical alternative exists." United States v. Comprehensive Drug Testing,
Inc., 621 F.3d 1162, 1169 (9th Cir. 2010) (quoting United States v. Tamura, 694
F.2d 591, 596 (9th Cir. 1982». "The essential safeguard required is that wholesale
removal must be monitored by the judgment of a neutral, detached magistrate."
Tamura, 694 F.2d at 596. See also United States v. Hill, 459 F.3d 966, 974-76
(9th Cir. 2006) (holding that a warrant authorizing the blanket seizure of a
computer and storage media to search for child pornography was overbroad in the
absence of an explanatory affidavit, though off-site review of an entire computer is
sometimes reasonable). On the other hand, the Ninth Circuit has upheld the
warrantless seizure of a computer that a suspect admitted contained child
pornography because "the fragile and easily destructible nature of the digital
evidence at issue raises undeniable concerns regarding 'loss or possible
destruction of contraband by the owner.'" United States v. Blood, 429 Fed. Appx.
670,671 (9th Cir. 2011) (unpublished) (quoting United States v. Licata, 761 F.2d
537,541 (9th Cir. 1985».
For all these reasons, the answer to the question of how the Fourth
Amendment should regulate searches and seizures of personal computers is
"surprisingly unclear." Kerr, 119 Harv. L. Rev. at 533. "Lower courts have just
begun to grapple with the question, resulting in a series of tentative and often
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contradictory opinions that leaves many answers unresolved." !d. Here, Edwards
could reasonably have believed he was entitled to seize the computer based on his
reasonable suspicion that the computer contained pornography, Glick's reduced
privacy rights as a probationer, the difficulty of conducting a full search on-site,
and the risk Glick could tamper with or destroy evidence. Accordingly, he is
entitled to qualified immunity as to this claim.
ORDER

As I see no clear error in the remaining findings and recommendations, IT
IS HEREBY ORDERED that Judge Lynch's Findings and Recommendations
(doc. 19) are adopted in part and rejected in part as set forth above.
IT IS FURTHER ORDERED that Edwards's motion for judgment on the
pleadings is GRANTED with respect to Glick's Fourth Amendment claims and
DENIED without prejudice with respect to Glick's two-prong retaliation clai
under the First Amendment.
Dated thiS£day of June 2012.

, District Judge
'ct Court

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