Leonard et al v. Doyle et al
Filing
67
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and the Plaintiffs' Complaint is DISMISSED. Signed by Judge Dana L. Christensen on 9/11/2013. (APP, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CV 12-25-M -DLC -JCL
TERRY LEONARD, STEVEN
KENDLEY, MICHEL GEHL, BEN
WOODS, and LEVI READ,
ORDER
Plaintiff,
vs.
ALAN JAY DOYLE, MICHAEL
SARGEANT, DAN DURYEE, and
DANYONKIN,
Defendant.
United States Magistrate Judge Jeremiah C. Lynch issued Findings and
Recommendations to dismiss Plaintiffs Terry Leonard, Steven Kendley, Michel
Gehl, Ben Woods, and Levi Read's complaint on July 9, 2013. (Doc. 62.)
Plaintiffs timely filed objections and are therefore entitled to de novo review of the
specified fmdings and recommendations to which they object. 28 U.S.C. §
636(b)(1). The portions of the findings and recommendations not specifically
objected to will be reviewed for clear error. McDonnell Douglas Corp. v.
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Commodore Bus. Mach., Inc., 656 F.2d 1309,1313 (9th Cir. 1981). The parties
are familiar with the factual and procedural background of this case so it will not
be repeated here.
Plaintiff Leonard first objects to Judge Lynch's finding that Defendant
Yonkin's download of Leonard's hard drive contents in early February 2011 was,
at most, a seizure and not an unlawful search. Yonkin's download was a lawful
seizure pursuant to the September 29,2010 search warrant. Further, Defendants
are entitled to qualified immunity.
The Fourth Amendment protects "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches[.]" U.S.
Const. amend. IV. State actors have qualified immunity from suit "insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S.
800,818 (1982). As Judge Lynch notes, the well established rule for qualified
immunity in Fourth Amendment claims is when a search or seizure is conducted
pursuant to a search warrant, ''the fact that a neutral magistrate has issued a
warrant is the clearest indication that the officers acted in an objectively
reasonable manner[.]" Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012)
(quoting Us. v. Leon, 468 U.S. 897,922-923 (1984)). The exception to qualified
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immunity is when probable cause is so lacking that belief in its existence would be
unreasonable and no reasonably competent officer would find that a warrant
should issue. ld. (citations omitted).
The September 29,2010 warrant authorized officers to seize "information
contained" and "information stored" in Leonard's computer. (Doc. 52-6 at 2.)
The evidence in the record shows that the Lake County Sheriffs Office did not
have the software required to view the data at the time of the alleged violation.
Plaintiffs failed to provide any evidence that officers viewed the information prior
to the second search warrant or that probable cause for either warrant was lacking.
Therefore, Judge Lynch did not err in finding Defendants did not violate
Leonard's Fourth Amendment rights and are entitled to qualified immunity.
Plaintiffs also object to Judge Lynch's fmdings that Defendants did not
retaliate against Leonard or the other plaintiffs in violation of their First
Amendment rights. Plaintiff Leonard failed to show that removing a personal
computer would chill an ordinary person's desire to voice an opinion. The
remaining Plaintiffs failed to show they were acting as private citizens when they
reported Defendants' alleged unlawful activities.
The First Amendment prohibits retaliation by state actors against
individuals for engaging in constitutionally protected activities. Blair 'V. Bethel
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Seh. Dist., 608 F.3d 540,543 (9th Cir. 2010). Importantly, Leonard must prove
that he was "subjected to adverse action by the defendant that would chill a person
of ordinary firmness from continuing to engage in the protected activity[.]" Id.
(citing Pinard v. Clatskanie Seh. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)).
Leonard presents no evidence, other than conclusory statements, that removing a
personal computer would chill an ordinary person from continuing to express
opinions regarding an election campaign. In fact, Leonard was able to continue
voicing his opposition to Doyle's candidacy through means other than his personal
computer, such as running newspaper ads. Judge Lynch did not err in finding
Leonard did not prove this essential element to his retaliation claim.
To prevail on a First Amendment retaliation claim the remaining Plaintiffs
have the burden to show they spoke as private citizens. Eng v. Cooley, 552 F .3d
1062, 1070 (9th Cir. 2009). To determine whether Plaintiffs spoke as private
citizens or as public employees the Court must consider whether they expressed
opinions pursuant to their duties as public employees. Gareetti v. Ceballos, 547
U.S. 410, 421 (2006). Plaintiffs allege their reports of Defendants' alleged
unlawful activities were done in compliance with their "duties as Peace Officers to
report crimes[.]" (Complaint, doc. 1 at 4.)
To the extent Plaintiffs present any evidence that they acted as private
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citizens, they do so for the first time in their objections to Judge Lynch's Findings
and Recommendations. "A district court has discretion, but is not required, to
consider evidence presented for the first time in a party's objection to a magistrate
judge's recommendation," but it "must actually exercise its discretion rather than
summarily accepting or denying the motion." U.S. v. Howell, 231 F.3d 615, 621
622 (9th Cir. 2000). A district court is well within its discretion in barring
arguments raised for the first time on objections to a magistrate's findings and
recommendations absent exceptional circumstances. Greenhow v. Secretary of
Health & Human Services, 863 F. 2d 633,638-639 (9th Cir. 1988). Plaintiffs
provide neither a reason for failing to previously raise this issue nor exceptional
circumstances. Plaintiffs have failed to meet their burden. Having reviewed and
found no clear error in Judge Lynch's remaining findings and recommendations,
IT IS HEREBY ORDERED:
1. Judge Lynch's Findings and Recommendations (doc. 62) are ADOPTED
in full.
2. Plaintiffs' Complaint (doc. 1) is DISMISSED.
3. The Clerk of Court is directed to close this matter and enter judgment
pursuant to Rule 58 ofthe Federal Rules of Civil Procedure.
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Dated this
II-tf"day of September,
Dana L. Christensen, Chief J dge
United States District Court
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