Brown v. Sprint Corporate Security Subpoena Specialist et al

Filing 42

MEMORANDUM AND ORDER granting 24 Motion to Dismiss for Failure to State a Claim; granting 34 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendants' motions (Docket Entries 24 and 34) are GRANTED in their entirety. The Complaint is DISMISSED without leave to amend. Within three days of the filing of this Order, Defendants are directed to mail a copy of this Order to the pro se Plaintiff and file proof of service on ECF. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 1/31/2019. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
EDWARD BROWN,
Plaintiff,

MEMORANDUM & ORDER
17-CV-2561(JS)(ARL)

-against–
SPRINT CORPORATE SECURITY SPECIALIST,
WENDY KLANG, and DANIELLE WHITMER,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Edward Brown, pro se
14-A-4702
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
For Defendants
Sprint & Whitmer:

For Defendant
Klang:

Frank Thomas Spano, Esq.
Polsinelli PC
600 Third Avenue
New York, New York 10016

Laurel R. Kretzing, Esq.
Office of the Nassau County Attorney
1 West Street
Mineola, New York 11501

SEYBERT, District Judge:
Before the Court in this 42 U.S.C. § 1983 (“Section
1983”)

action

are

motions

to

dismiss

from

Defendants

Sprint

Corporation (sued herein as Sprint Corporate Security Subpoena
Specialist)

(“Sprint”)

and

Danielle

Whitmer

(“Whitmer,”

and

together with Sprint, the “Sprint Defendants”) (Sprint Defs.’
1

Mot.,

D.E.

collectively,

24)

and

Defendant

“Defendants”)

Wendy

(Klang

Mot.

Klang

(“Klang,”

D.E. 34).

For

and
the

following reasons, Defendants’ motions are GRANTED.
BACKGROUND
Pro se Plaintiff Edward Brown commenced this action in
April 2017, alleging that between December 20 and December 31,
2012, “a woman named Wendy Klang wrote a letter to [his] cell phone
carrier Sprint requesting copies of [his] phone records without a
court order or a subpoena, or warrant.” (Compl., D.E. 2, at 34.)1,2

He further contends that “Sprint Corporate Security Officer

Danielle Whitmer granted her request and sent [his] records to a
third party.” (Compl. at 4.) In his 2014 Notice of Claim, attached
to the Complaint as an exhibit, Plaintiff indicated that Sprint
had “giv[en his] phone records out without getting an authorized
court-ordered subpoena first.” (Compl. at 11.)

Plaintiff seeks

five million dollars in damages. (Compl. at 5.)
The Sprint Defendants filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim.

In support of their motion, the Sprint Defendants rely

upon documents outside the Complaint and thus seek to convert their

Though Plaintiff’s April 5, 2017 Complaint has 32 unnumbered
pages on ECF, many of the pages and exhibits are duplicates.
The Complaint appears to be 8 pages with 3 pages of exhibits.
1

The Court will use the page numbers generated by the ECF System
when referring to documents filed by Plaintiff.
2

2

motion pursuant to Rule 12(d) to one for summary judgment under
Rule 56.

(Sprint Defs.’ Mot.; Sprint Defs.’ Br., D.E. 25, at 1.)

Specifically, the Sprint Defendants rely upon an affidavit from
Calli Keep, a custodian of Sprint’s records, (Calli Aff., D.E. 27),
and a copy of a grand jury subpoena (“the Subpoena”) from the
Nassau County District Attorney’s Office (Spano Aff., D.E. 26, and
Subpoena,

Ex.

1,

D.E.

26

at

2-4).

Essentially,

the

Sprint

Defendants argue that, contrary to the allegations in Plaintiff’s
Complaint,

they

released

his

phone

records

Attorney’s Office in response to the Subpoena.

to

the

District

(Sprint Defs.’ Br.

at 1.)
Klang, a Nassau County Assistant District Attorney, also
submitted a motion to dismiss the Complaint for failure to state
a claim.

She also seeks conversion.

D.E. 35; Klang Br., D.E. 36.)

(Klang Mot.; Klang Decl.,

She argues that (1) Plaintiff had

no reasonable expectation of privacy in the cell phone subscriber
information, (Klang Br. at 6-9); (2) Plaintiff’s claims are timebarred under the Stored Communications Act (“SCA”) (18 U.S.C.
§ 2701, et seq.) (Klang Br. at 4-6); and (3) she is shielded by
qualified immunity for any actions taken in furtherance of an
investigation (Klang Br. at 9-10).
Plaintiff then filed two responses to the motions to
dismiss. (Pl.’s Opp. 1, D.E. 37; Pl.’s Opp. 2, D.E. 39.) Plaintiff
notes that this Court is required to construe his pleadings
3

liberally and states that the Subpoena was not signed by a judge.
(Pl.’s Opp. 1 at 3-4.)

He appears to argue that the Subpoena was

Rosario material that was never disclosed to him.

He arguably

seeks to amend his Complaint to include a Rosario claim.
Opp. 2 at 2.)

(Pl.’s

He also states that under Carpenter v. United States

(138 S. Ct. 2206, 201 L. Ed 2d 507 (2018)), a recent Supreme Court
decision, “the government acquisition of cell site records was a
Fourth Amendment search [and] a warrant is required.”

(Pl.’s

Opp. 2 at 3.)
Klang replied, arguing that Carpenter pertains only to
cell site records that track a person’s location, “information
that is not at issue in this case.”

(Klang Reply, D.E. 40, at 1.)

Klang also contends that to the extent Plaintiff seeks to amend
his Complaint to include Rosario claims, he should not be permitted
to because he has not provided sufficient detail.

(Klang Reply at

4-5.)
Plaintiff then filed another response, arguing that he
had never received a copy of the Subpoena during his underlying
criminal
for[ema]n

trial.

Further,

signature

[S]ubpoena.”

and

he

notes

stating

there

is

probable

(Pl.’s Reply, D.E. 41, at 2-3.)

no

“grand

cause

for

jury
the

He states that his

“appellate attorney is making a 440 motion on the grounds of a
Rosario violation.”

(Pl.’s Reply at 3.)

4

DISCUSSION
I.

Rule 12(d) Conversion
Under Rule 12(d), where “matters outside the pleadings

are presented to and not excluded by the court, [a] motion [to
dismiss] shall be treated as one for summary judgment and disposed
of as provided in Rule 56.”

FED. R. CIV. P. 12(d).

“In other

words, if parties submit extrinsic evidence, the court has two
options: (1) it may exclude such evidence and decide the motion on
the complaint alone or (2) convert the motion to one for summary
judgment

and

consider

the

extrinsic

evidence.”

Vailette

v.

Lindsay, 11-CV-3610, 2014 WL 4101513, at *7 (E.D.N.Y. Aug. 18,
2014).
“Federal courts have complete discretion to determine
whether or not to accept the submission of any material beyond the
pleadings offered in conjunction with a Rule 12(b)(6) motion, and
thus complete discretion in determining whether to convert the
motion to one for summary judgment; this discretion generally will
be exercised on the basis of the district court’s determination of
whether or not the proffered material, and the resulting conversion
from the Rule 12(b)(6) to the Rule 56 procedure, is likely to
facilitate the disposition of the action.”

Stephens v. Bayview

Nursing & Rehab. Ctr., No. 07–CV–596, 2008 WL 728896, at *2
(E.D.N.Y. Mar. 17, 2008) (internal quotation marks and citation
omitted).
5

Here, Defendants have submitted documentary proof that
the allegations in Plaintiff’s Complaint are not true.

Plaintiff

alleged that Sprint provided his cell phone records to the District
Attorney’s Office without a subpoena; the Subpoena and affidavit
from Sprint’s custodian of records conclusively establish that
Sprint only released them in response to a grand jury subpoena
from the Nassau County District Attorney’s Office.

Thus, these

external documents are “likely to facilitate the disposition of
[this] action.” Stephens, 2008 WL 728896 at *2 (internal quotation
marks and citations omitted).

Further, the Court notes that with

each motion, Defendants have provided Plaintiff with adequate
notice under Local Civil Rule 12.1, which requires that notice be
given to pro se plaintiffs when a represented party moves to
dismiss the complaint and refers to matters outside the pleadings.
The notice here includes the full text of Federal Rule of Civil
Procedure Rule 56, as Local Civil Rule 12.1 requires.
Mot.;

Sprint

Defs.’

Notice,

D.E.

30.)

These

(See Klang

notices

were

effective, as Plaintiff responded to Defendants’ documents and
arguments in his replies.
The
exhibits

to

Court
his

also

Complaint

notes
and

that
made

arguments in his additional papers.

Plaintiff
further

has

attached

allegations

and

“In general, ‘a court may not

look outside the pleadings on a Rule 12(b)(6) motion to dismiss.
However, the mandate to read the papers of pro se litigants
6

generously makes it appropriate to consider plaintiff’s additional
materials, such as his opposition memorandum.’”

Burgess v. Goord,

No. 98–CV–2077, 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999)
(quoting Gadson v. Goord, 96-CV-7544, 1997 WL 714878, at *1, n.w
(S.D.N.Y. Nov. 17, 1997).

Thus, the Court finds it appropriate to

consider the additional documents submitted by all parties and
convert the motions to Rule 56 motions for summary judgment.
II.

Rule 56 Summary Judgment
Summary

judgment

will

be

granted

where

the

movant

demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).

A genuine factual issue exists where “the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).

The

movant bears the burden of establishing that there are no genuine
issues of material fact.

Gallo v. Prudential Residential Servs.,

L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
such

a

showing,

the

non-movant

must

Once the movant makes
proffer

demonstrating “a genuine issue for trial.”

specific

facts

Giglio v. Buonnadonna

Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at *4 (E.D.N.Y.
Sept. 25, 2009) (internal quotation marks and citation omitted).
Conclusory
judgment.

allegations
Id.

or

denials

will

not

defeat

summary

In reviewing the summary judgment record, “‘the
7

court

is

required

to

resolve

all

ambiguities

and

draw

all

permissible factual inferences in favor of the party against whom
summary judgment is sought.’”

Sheet Metal Workers’ Nat’l Pension

Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL 6449420, at *2
(E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler Corp., 109
F.3d 130, 134 (2d Cir. 1997)).

“When a pro se party opposes

summary

same

judgment,

‘although

the

standards

for

dismissal

apply, a court should give the pro se litigant special latitude.’”
Minima v. N.Y. City Emps.’ Retirement Sys., 11-CV-2191, 2012 WL
4049822, *4 (E.D.N.Y. Aug. 17, 2012) (quoting Ibeawuchi v. United
States, 209 F.R.D. 320, 321–22 (S.D.N.Y.2002)); see also Erickson
v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d
1081 (2007) (“A complaint filed by a pro se litigant is to be
construed liberally and however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.”) (internal quotation marks and citation omitted).
Even
following

giving

reasons,

Plaintiff

the

Court

special
finds

latitude,

that

for

Defendants

the
have

established their entitlement to summary judgment dismissing the
Complaint.
III. Plaintiff’s Claims
Plaintiff brings his claims under Section 1983, and his
papers indicate that he alleges a Fourth Amendment violation and
a

Rosario

violation.

To

establish
8

a

Section

1983

claim,

a

plaintiff must demonstrate that the defendant violated a “right,
privilege, or immunity secured by the Constitution or laws of the
United States . . . by a person acting under the color of state
law.”

Charles v. Cty. of Orange, N.Y., No. 16-CV-5527, 2017 WL

4402576, at *6 (S.D.N.Y. Sept. 29, 2017); 42 U.S.C. § 1983.
Section 1983 “‘is not itself a source of substantive rights, but
a method for vindicating federal rights elsewhere conferred by
those parts of the United States Constitution and federal statutes
that it describes.’”

Nasca v. Cty. of Suffolk, 933 F. Supp. 2d

437, 442 (E.D.N.Y. 2013) (quoting Baker v. McCollan, 443 U.S. 137,
145 n.3, 99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433 (1979)).
A.

Fourth Amendment Violation
In reviewing the Complaint and Notice of Claim, it is

clear that when Plaintiff commenced this action, he believed that
Sprint disclosed his phone records without a subpoena of any kind.
(See Compl. at 3-4, 11.)

When he received a copy of the Subpoena

with Defendants’ moving papers, he changed course and argued that
(1)

the

Subpoena

was

not

sufficient,

because

a

warrant

was

required; and (2) the Subpoena was Rosario material that should
have been disclosed to him during trial.
Opp. 1 and Opp. 2.)

(See generally Pl.’s

Because Plaintiff now concedes that the

information was disclosed pursuant to a subpoena, the Court will
not

devote

time

to

the

mistaken

9

assumption

in

his

original

Complaint that the Sprint Defendants released the records without
one.
Next,

Plaintiff’s

cursory

argument

that

Carpenter

requires a warrant for cell site records is unavailing because he
has not alleged that the material at issue included cell site
records.

As Carpenter explained, “historical cell phone records

[ ] provide a comprehensive chronicle of the user’s past movements”
(138 S. Ct. at 2211) and involve the intersection of “a person’s
expectation of privacy in his physical location and movements”
(id.

at

2215)

with

his

lack

of

“expectation

of

privacy

in

information he voluntarily turns over to third parties” (id. at
2216).

In determining that cell site records were subject to

Fourth Amendment warrant protection, the majority noted that its
holding that “an individual maintains a legitimate expectation of
privacy in the record of his physical movements as captured through
CSLI [cell site location information]” (id. at 2217) was “a narrow
one” (id. at 2220). Thus, under Carpenter, no warrant was required
here.
Carpenter

focuses

on

the

intrusion

of

tracking

a

person’s physical movements, which Plaintiff does not allege is at
issue here.

Further, the majority “certainly [did] not . . . say

that all orders compelling the production of documents will require
a showing of probable cause.

The Government will be able to use

10

subpoenas to acquire records in the overwhelming majority of
investigations.”

Id. at 2222.

Here, the Subpoena requested
For the period November 1, 2012 to December
31, 2012, (1) any and all subscriber and
billing information, to include subscriber’s
Social Security number; and (2) call detail
records for the following cellphone number(s):
516-472-1312.
(Spano Aff. and Subpoena, Ex. 1.)

The Subpoena did not seek cell

site information, and Plaintiff has made no allegations that cell
site information was ultimately involved.

He does not state that

Defendants ended up with location information that tracked his
movements. “Basic subscriber data . . . enjoy[s] no privacy
protection because the data is incidental to the use of the
telephone, and contains no content information.”

United States v.

Davis, No. 10-339-HA, 2011 WL 2036463, at *3 (D. Oregon May 24,
2011).
Even if Carpenter could be so expansively read as to
cover the material at issue here, “the touchstone of the Fourth
Amendment is reasonableness.”

Ohio v. Robinette, 519 U.S. 33, 39,

117 S. Ct. 417, 421, 135 L. Ed. 2d 347, (1996) (internal quotation
marks and citation omitted).

At the time the Subpoena was issued

and the information was given to the District Attorney, Carpenter
had not yet been decided.

It was thus perfectly reasonable for

Defendants to use the Subpoena.

See United States v. Zodhiates,
11

901 F.3d 137, 141, 143-44 (2d Cir. 2018) (in the suppression
context, applying the good faith exception to the exclusionary
rule and holding that the government properly used a subpoena to
obtain phone records disclosing “service location[s]” that “showed
the general vicinity of [a] cell phone when [a] call was made or
received” because it complied with pre-Carpenter precedent).
Although Plaintiff does not address it in his papers,
the SCA governs the release of electronic records, such as the
phone records here.

It provides that

A provider of electronic communication service
or remote computing service shall disclose to
a governmental entity the (A) name; (B)
address; (C) local and long distance telephone
connection records, or records of session
times and durations; (D) length of service
(including start date) and types of service
utilized; (E) telephone or instrument number
or other subscriber number or identity,
including any temporarily assigned network
address; and (F) means and source of payment
for such service (including any credit card or
bank account number), of a subscriber to or
customer of such service when the governmental
entity
uses
an
administrative
subpoena
authorized by a Federal or State statute or a
Federal or State grant jury or trial
subpoena[.]3

Under the New York State Criminal Procedure Law, a “‘subpoena”
includes a ‘subpoena duces tecum.’ A subpoena duces tecum is a
subpoena requiring the witness to bring with him and produce
specified physical evidence.” N.Y. Crim. Proc. Law § 610.10(3).
Further, “[a] district attorney, or other prosecutor where
appropriate, as an officer of a criminal court in which he is
conducting the prosecution of a criminal action or proceeding,
may issue a subpoena of such court, subscribed by himself, for
the attendance in such court or a grand jury thereof of any
3

12

18 U.S.C. § 2703(c)(2). Section 2703(c)(3) does not require notice
to the customer.

Further, “[a] good faith reliance on . . . a

grand jury subpoena . . . is a complete defense to any civil . .
. action brought under [the SCA] or any other law.”
§ 2707(e).

18 U.S.C.

Under the SCA, Defendants properly used a grand jury

subpoena for the information.

The Sprint Defendants additionally

relied in good faith upon the Subpoena, giving them “a complete
defense” to the action.

18 U.S.C. § 2707(e).

Further, as to Klang, although “[p]rosecutors generally
enjoy absolute immunity from liability in suits seeking damages
for acts carried out in their prosecutorial capacities” (Williams
v. District Attorney of Queens County, No. 16-CV-2978, 2016 WL
3962976, at *1 (E.D.N.Y. July 21, 2016), only “qualified immunity
attaches ‘when a prosecutor performs the investigative functions
normally performed by a detective or police officer,’ such as
‘searching for the clues and corroboration that might give probable
cause.’”

O’Neal v. Morales, 679 F. App’x 16, 18 (2d. Cir. 2017)

(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct.
2606, 2616, 125 L.Ed.2d 209 (1993)); see also Rodrigues v. City of
N.Y., 193 A.D.2d 79, 85, 602 N.Y.S.2d 337, 341 (1993) (prosecutor’s
issuance of grand jury subpoenas is investigative). “This immunity

witness whom the people are entitled to call in such action or
proceeding.” Id. § 610.20(2).
13

law applies to . . . actions under section 1983.”

O’Connell v.

United States, No. 15-CV-6512, 2017 WL 3701856, at *2 (E.D.N.Y.
Aug. 25, 2017).
Qualified immunity protects government officials from
civil liability “as long as their conduct does not violate clearly
established

statutory

or

constitutional

rights

of

which

a

reasonable person would have known” and “therefore only applies if
the official action was objectively legally reasonable in light of
the legal rules that were clearly established at the time it was
taken.” Morse v. Fusto, 804 F.3d 538, 550 (2d Cir. 2015) (internal
quotation marks and citations omitted).

Here, the Court finds

that Klang’s investigative actions relating to the Subpoena were
objectively

legally

reasonable

and

did

not

violate

clearly

established statutory or constitutional rights, and she is thus
entitled to qualified immunity.
Alternatively, a civil action under the SCA must be
commenced no “later than two years after the date upon which the
claimant first discovered or had a reasonable opportunity to
discover the violation.”

18 U.S.C. § 2707(f).

Plaintiff filed

his Notice of Claim for “giving phone records out without getting
an authorized court ordered subpoena first” on August 26, 2014.
(Compl. at 11.)
2017.

He did not commence this action until April 5,

If construed under the SCA, his claims are time-barred.

14

B.

Rosario Claim
Next, even treating Plaintiff’s replies as a hybrid

opposition

to

the

motions

to

dismiss

and

proposed

amended

complaint, see Minima, 2012 WL 4049822, at *1 n.3 (“treat[ing] the
filing as such because of plaintiff’s pro se status”), the amended
complaint fails to make out a cognizable Rosario violation.

“The

Rosario4 discovery rule requires the government to provide defense
counsel with any pre-trial written or recorded statements made by
a

government

witness

concerning

that

witness’s

testimony

in

court.” Bogan v. Bradt, 11-CV-1550, 2014 WL 12714530, *3 (E.D.N.Y.
Nov. 12, 2014).

The Subpoena simply directs Sprint to provide

subscriber and billing information and call detail records for a
designated phone number, and is signed by an Assistant District
Attorney.

Plaintiff has not alleged that there are any statements

in the Subpoena which could have been reasonably testified to.
See People v. Potter, 30 A.D.3d 313, 315, 818 N.Y.S.2d 54, 56
(2006) (“There is no evidence in the record that a subpoena issued
by the People constituted Rosario material”) (generally citing
Rosario).
Moreover, “[t]he Rosario rule is grounded in the State’s
common law.

Although it is generally considered to be New York’s

New York established the rule in People v. Rosario, 9 N.Y.2d
286, 173 N.E.2d 881, 213 N.Y.S.2d 448 (1961), cert. denied 368
U.S. 866, 82 S. Ct. 117, 7 L. Ed. 2d 64 (1961).
4

15

counterpart to a federal rule based on Jencks v. United States,
353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957), see 18
U.S.C.

§

3500,

the

Jencks

constitutional in nature.”

rule

has

not

been

construed

as

Morrison v. McClellan, 903 F. Supp.

428, 429 (E.D.N.Y. 1995) (internal quotation marks and citations
omitted).

Plaintiff has not demonstrated how the alleged Rosario

violation rises to a federal constitutional dimension giving rise
to a valid Section 1983 claim.

Indeed, he states that he is

pursuing the claim in a state court Criminal Procedure Law Section
440 action.
Although generally “district courts should afford pro se
plaintiffs permission to amend their complaints at least once where
a liberal reading of the complaint suggests the existence of a
colorable claim,” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003),
the Court does not find that a liberal reading of Plaintiff’s
papers

suggests

a

colorable

claim

here

(see

also

Cuoco

v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“The problem with
[plaintiff’s] cause[] of action is substantive; better pleading
will not cure it.

Repleading would thus be futile.”).

Any

amendments to Plaintiff’s claims that the release of his phone
records with the Subpoena violated his Fourth Amendment rights and
that the Subpoena was Rosario material would be futile.
Complaint is dismissed with prejudice.

16

Thus, the

CONCLUSION
For

the

foregoing

reasons,

Defendants’

motions

Entries 24 and 34) are GRANTED in their entirety.
is DISMISSED without leave to amend.

(Docket

The Complaint

Within three days of the

filing of this Order, Defendants are directed to mail a copy of
this Order to the pro se Plaintiff and file proof of service on
ECF.

The Clerk of the Court is directed to enter judgment

accordingly and mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

January
31 , 2019
Central Islip, New York

17