Brodnik v. Lanham et al
Filing
109
MEMORANDUM OPINION AND ORDER: Plaintiff's 101 Motion For Court to Make Finding As to Whether or Not Defendant Deborah Beck is a State Actor for Purposes of Bivens Liability (construed as a motion for partial summary judgment in plaintiff 39;s favor) is DENIED; Lanhams 105 Motion for Summary Judgment as to Count I is GRANTED; and Pursuant to concerns regarding HIPAA and confidential medical information, ECF Nos. 103-1 and 103-2 are to be filed under SEAL. Signed by Senior Judge David A. Faber on 3/30/2018. (cc: attys) (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD
RANDY MICHAEL BRODNIK, D.O.,
Plaintiff,
v.
Civil Action No. 1:11-0178
ROBERT LANHAM, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court are the parties’ cross motions
for summary judgment as to Count I of plaintiff’s Second Amended
Complaint.
(ECF Nos. 101 and 105).
For the reasons discussed
below, defendant’s motion (ECF No. 105)1 is GRANTED and
plaintiff’s motion (ECF No. 101) is DENIED.2
I.
Background
According to the Second Amended Complaint, at the time of
the events giving rise to the instant Complaint, defendant Robert
Lanham was employed as a special agent with the Internal Revenue
Service.
Complaint ¶¶ 8 and 10.
As a result of a six-year
investigation of plaintiff Randy Michael Brodnik, D.O.
1
Plaintiff argues that defendant’s motion should be denied
because it was not timely filed. Given the confusion surrounding
the deadline, the court finds that good cause exists for filing
the motion out of time.
2
Plaintiff actually filed a Motion For Court to Make
Finding As to Whether or Not Defendant Deborah Beck is a State
Actor for Purposes of Bivens Liability which the court has
construed as a motion for partial summary judgment in plaintiff’s
favor.
(“Brodnik”) for income tax evasion, Lanham recommended that
Brodnik be prosecuted.
See id. at ¶ 10.
On March 18, 2009, a
federal grand jury returned a seven-count indictment against
Brodnik charging him with conspiracy and six counts of income tax
evasion.
See id. at ¶ 11.
On June 2, 2010, the grand jury
returned a seven-count second superseding indictment charging
Brodnik with one count of conspiracy, five counts of income tax
evasion, and one count of corruptly endeavoring to impede and
obstruct the due administration of the Internal Revenue laws.
See id. at ¶ 13.
After a three-week jury trial, Brodnik was
acquitted of all charges.
See id. at ¶¶ 14, 20.
Brodnik alleges that one of the government’s witnesses,
defendant Deborah Beck, testified at Brodnik’s trial that she
illegally accessed Brodnik’s electronic mail and provided it to
defendant Lanham.
See id. at 17-18.
Count I of the Complaint is
brought pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), and alleges the
violation of Brodnik’s constitutional rights.
Lanham filed a motion to dismiss the Bivens claim which
the court denied insofar as it alleged a violation of Brodnik’s
Fourth Amendment rights regarding his email.3
In his complaint,
Brodnik alleged as follows:
3
Lanham’s motion to dismiss the Bivens claim was granted in
all other respects. See ECF No. 83.
2
17.
Defendant Beck testified that she illegally
accessed plaintiff Brodnik’s electronic email.
18.
Defendant Beck testified that she produced print
outs of messages she obtained when she illegally
accessed plaintiff Brodnik’s electronic mail to
defendant Lanham.
19.
Defendants Lanham and Beck conversed frequently
via electronic mail and other means. Some of
defendants’ conversations included defendant
Beck’s compensation if plaintiff Brodnik was
convicted.
32.
Defendant Lanham participated in defendant Beck’s
actions by using the illegally accessed electronic
mail in the prosecution of plaintiff Brodnik in
violation of the Fourth and Fourteenth Amendments.
35.
Furthermore, defendant Lanham also discussed
possible compensation for defendant Beck if
plaintiff was convicted, thus encouraging
defendant Beck to gain information in any manner
possible in violation of the Fourteenth Amendment.
36.
By encouraging defendant Beck to illegally search
and seize plaintiff’s electronic mail, and then
subsequently using the fruit of that illegal
search and seizure, plaintiff’s Fourth Amendment
rights were violated.
Second Amended Complaint ¶¶ 17-19, 32, and 35-36.
Taking
plaintiff’s allegations as true and drawing all reasonable
inferences in plaintiff’s favor, the court found that a fair
reading of plaintiff’s complaint is that Beck’s acquisition of
Brodnik’s emails was done at the behest and with the
encouragement of defendant Lanham, thereby transforming her
action into government action.
Specifically, the court stated:
According to the complaint, in seizing the
emails, Beck was encouraged to do so by Lanham
and, therefore, could be considered an agent of
3
the government. The viability of Brodnik’s Bivens
claim hinges on whether Beck was acting as an
agent of the government when she seized
plaintiff’s emails. If she was, the Fourth
Amendment is implicated. If she was not, there is
no Fourth Amendment violation and plaintiff’s
Bivens claim is subject to dismissal.
For this reason, the court deems it necessary
to allow limited discovery on this issue so that
the court can determine whether to allow
plaintiff’s Bivens claim to proceed. See
Crawford-El v. Britton, 523 U.S. 574, 600 (1998)
(“[T]he judge should give priority to discovery
concerning issues that bear upon the qualified
immunity defense, such as the actions that the
official actually took, since that defense should
be resolved as early as possible.”). Where, as
here, a court finds that a “plaintiff has made
sufficiently specific factual allegations” and
“taking plaintiff’s allegations as true, plaintiff
has stated a violation of clearly established
law[,] . . . “[a]llowing limited discovery enables
the Court to resolve the issue of qualified
immunity in the manner envisioned by CrawfordEl.”). Delph v. Trent, 86 F. Supp.2d 572, 577
(E.D. Va. 2000).
ECF No. 83.
The parties engaged in limited discovery on the email
issue and the instant motions followed.
II.
Analysis
With respect to plaintiff’s claims regarding Lanham’s
methods in obtaining his emails, Lanham argues that his actions
are entitled to qualified immunity.
The defense of qualified
immunity shields a government official from liability for civil
monetary damages if the officer's conduct does not violate
clearly established statutory or constitutional rights of which a
4
reasonable person would have known.
Wiley v. Doory, 14 F.3d 993,
995 (4th Cir. 1994); Smook v. Hall, 460 F.3d 768, 777 (6th Cir.
2006).
The doctrine of qualified immunity protects government
officials "from liability for civil damages 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).
In Saucier v. Katz, 533 U.S. 194, 195 (2002), the Supreme
Court mandated a two-step sequence for resolving the qualified
immunity claims of government officials.
First, a court must decide whether the facts that
a plaintiff has alleged (see Fed. Rules Civ. Proc.
12(b)(6), (c)) or shown (see Rules 50, 56) make
out a violation of a constitutional right. 533
U.S., at 201, 121 S. Ct. 2151. Second, if the
plaintiff has satisfied this first step, the court
must decide whether the right at issue was
"clearly established" at the time of defendant's
alleged misconduct. Ibid. Qualified immunity is
applicable unless the official's conduct violated
a clearly established constitutional right.
Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009).
The Court
has held that courts may exercise discretion in deciding which of
the two Saucier prongs “should be addressed first in light of the
circumstances in the particular case at hand.”
See id. at 818.
“[T]he rigid Saucier procedure comes with a price.
The procedure
sometimes results in a substantial expenditure of scarce judicial
resources on difficult questions that have no outcome on the
case.
There are cases in which it is plain that a constitutional
5
right is not clearly established but far from obvious whether in
fact there is such a right.”
Id.
Under the first prong, a court must determine whether the
facts as alleged, taken in the light most favorable to plaintiff,
demonstrate the violation of a constitutional right.
Saucier,
533 U.S. at 201 (“Taken in the light most favorable to the party
asserting the injury, do the facts alleged show the [state
actor’s] conduct violated a constitutional right?”).
If the
allegations do not give rise to a constitutional violation, no
further inquiry is necessary.
Id.
A right is clearly established when it has been
authoritatively decided by the Supreme Court, the appropriate
United States Court of Appeals, or the highest court of the state
in which the action arose.
Edwards v. City of Goldsboro, 178
F.3d 231, 251 (4th Cir. 1999).
The relevant, dispositive inquiry
is whether it would be clear to a reasonable person that the
conduct was unlawful in the situation he confronted.
Katz, 533 U.S. 194, 195 (2002).
Saucier v.
"Clearly established" does not
mean that "the very action in question has previously been held
unlawful," but requires the unlawfulness of the conduct to be
apparent "in light of preexisting law."
Wilson v. Layne, 526
U.S. 603, 615 (1999).
The responsibility imposed on public officials to
comply with constitutional requirements is
commensurate with the legal knowledge of an
objectively reasonable official in similar
6
circumstances at the time of the challenged
conduct. It is not measured by the collective
hindsight of skilled lawyers and learned judges. .
. . "Officials are not liable for bad guesses in
gray areas; they are liable for transgressing
bright lines." Maciarello v. Sumner, 973 F.2d
295, 295 (4th Cir. 1992), cert. denied, 506 U.S.
1080 (1993).
Jackson v. Long, 102 F.3d 722, 730-31 (4th Cir. 1996); see also
Williams v. Hansen, 326 F.3d 569, 578-79 (4th Cir. 2003) (holding
that for purposes of qualified immunity, executive actors are not
required to predict how the courts will resolve legal issues).
"In determining whether the specific right allegedly violated was
`clearly established,' the proper focus is not upon the right at
its most general or abstract level, but at the level of its
application to the specific conduct being challenged.'"
Wiley v.
Doory, 14 F.3d 993, 995 (4th Cir. 1994)(quoting Pritchett v.
Alford, 973 F.2d 307, 312 (4th Cir. 1992)).
Plaintiff’s Bivens claim is that defendants Lanham and
Beck violated his Fourth Amendment right to be protected from
unreasonable searches and seizures by “illegally” accessing his
email.
The Fourth Amendment guarantees that, “The right of the
people to be secure in their persons, houses, paper, and effects,
against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV; Minnesota v. Carter, 525 U.S. 83, 88
7
(1998).
To establish a violation of his rights under the Fourth
Amendment, Simons must first prove that he had a legitimate
expectation of privacy in the place searched or the item seized.
See Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v.
Rusher, 966 F.2d 868, 873-74 (4th Cir. 1992).
In order to prove a legitimate expectation of privacy,
Brodnik must show that his subjective expectation of privacy is
one that society is prepared to accept as objectively reasonable.
See California v. Greenwood, 486 U.S. 35, 39 (1988).
A
government action constitutes a “search” only if it infringes on
an expectation of privacy that society considers reasonable.
United States v. Jacobsen, 466 U.S. 109, 113 (1984).
“Thus, the
government must obtain a warrant before inspecting places where
the public traditionally expects privacy, like the inside of a
home or the contents of a letter.”
In re § 2703(d) Order, 787 F.
Supp.2d 430, 439 (E.D. Va. 2011)); see also United States v.
Karo, 468 U.S. 705, 714 (1984) (warrant required to use
electronic location-monitoring device in a private home); Kyllo
v. United States, 533 U.S. 27, 34 (2001) (warrant required to use
publically unavailable, sense-enhancing technology to gather
information about the interior of a home); Jacobsen, 466 U.S. at
114 (warrant required to inspect the contents of sealed letters
and packages); United States v. Warshak, 631 F.3d 266, 287–89
8
(6th Cir. 2010) (extending Fourth Amendment protection to the
contents of email communications).
The court has already held that Brodnik had a legitimate
expectation in the privacy of his emails.
Furthermore, it was
clearly established that as of the time Lanham began his
investigation, on or about 2002 or later, that he needed a
warrant to obtain Brodnik’s emails.
As the court previously
found, the viability of Brodnik’s Bivens claim turns on whether
Beck was a state actor when she accessed Brodnik’s emails.
The
court finds she was not.
Lanham testified that the first time he met Beck was on
March 20, 2002.
Deposition of Robert Lanham, February 2, 2017,
at 116 (ECF No. 103-1) (hereinafter “Lanham Depo. at ___”).4
Beck testified that she had accessed Brodnik’s email on two
occasions after her employment ended -- once in Lanham’s presence
and on an earlier occasion outside his presence.
Deposition of
Deborah Beck, February 2, 2017, at 6-7, 11 (ECF No. 103-2)
(hereinafter “Beck Depo. at ___”).
The evidence is undisputed
that Lanham did not know Beck had accessed Brodnik’s email until
he asked her where she had gotten a certain document (the will)
and Beck told him.
Lanham testified repeatedly and unequivocally
4
Brodnik has objected to defendant’s
deposition transcripts in their entirety.
than not, the court directs the parties to
deposition transcripts and would have done
9
filing of the
However, more often
file the full
so in this case.
that he did not tell Beck to access Brodnik’s email nor did he
encourage her to do so.
Lanham further testified that when he
found out that she had accessed Brodnik’s email, he told Beck not
to do it again.
Specifically, he testifed:
Q:
Did you ever access Brodnik’s e-mail account
without his retort?
A:
Absolutely not.
Q:
Did you ever tell Deborah Beck that she
should access Doctor Brodnik’s e-mail
account?
A:
That she should or shouldn’t?
Q
That she should.
A:
No.
Q:
Okay. In fact, you directed her not to
access Brodnik’s e-mail account.
A:
Yes.
Q:
And you did that at your first meeting on
March 20, 2002, correct?
A:
Yes.
Q:
And then you followed up and again
admonished her not to access his e-mail
account in June of 2002, correct?
A:
I did.
Q:
Are you aware whether or not Ms. Beck –
when you met with her in March of 2002,
were you aware at that moment, during that
meeting, whether or not Ms. Beck had in fact accessed Doctor
A:
No.
Q:
Okay. Was that a general statement you
would make to a witness?
10
A:
Any time that I had a witness who had
access to records in an office or
something like that, if they no longer
worked there, if there was some indication
that maybe they were gonna try to get
something and it was not legal, I would
advise them, and that’s what I did with
her about the e-mail when I realized what
she had done.
Q:
And when did you realize what she had
done?
A:
After she had logged in, pulled up the
document we were looking at and I asked
her, you know, “What is this? Where did
it come from?”
Lanham Depo. at 118-19.
Upon repeated questioning, Lanham continued to maintain
that Beck accessed Brodnik’s email without his knowledge or
assent.
A:
[T]here was a time when Ms. Beck showed me
– and I don’t remember which meeting it
was –
Q:
All right.
A:
– a will – or maybe it was two wills. It
was a document that Anthony Kritt had
prepared. And I noticed that the document
was prepared after [Beck] had left the
employ of Doctor Brodnik and it – you
know, it struck me.
Showed you what?
And I said, “How did you get this?” And I
can’t recall – I can’t recall if it was that
first meeting or the second meeting.
Q:
Okay.
Do you remember anything else?
A:
She went to her computer and did
something, which I now know she was
11
logging into, apparently, Doctor Brodnik’s
email account.
Q:
You say you now know. You knew at the
time of the trial, the criminal trial,
didn’t you?
A:
Yes.
Q:
You were asked about that.
A:
I did not know when she did this what she
was doing. I asked her where the document
came from, and she went to her computer.
I did not know
know if it was
not know until
Where did this
what she was doing. I didn’t
a file on her computer. I did
I asked her, “What is this?
come from?”
Q:
And this is at one of the meetings that
you had with her. And what do you
remember, if anything, she said?
A:
Like I said, she went to the computer, she
pulled up this document, and I asked her
something like, “What is this? Where did
it come from?” And she said it was Doctor
Brodnik’s e-mail account.
Q:
All right. And that was either the March
2002 or the June 2002 – or I think you may
have said July 2002 meeting with Ms. Beck.
Right?
A:
Yeah. I’m not sure when the two meetings
took place. I’m pretty sure the first one
was in March.
Q:
All right. And so do you remember
anything else?
A:
The thing about the – her getting into the
e-mail was probably in the first meeting.
* * *
Q:
Have we covered it?
12
A:
Everything I remember about?
Q:
Your meeting with Ms. Beck. If you want
to say on both occasions or one occasion
or differentiate between the two, that’s
fine.
A:
. . .
I’m not sure but I believe that
she gave me records at that meeting, but I
can’t specifically identify what they
were. I just – it was either that meeting
or the second meeting, she gave me like a
– like a shopping bag of records.
I advised her after she accessed the e-mail
account and told me that’s what it was that
she could not do that anymore, not to do it
anymore.
Lanham Depo. at 23-25.
Lanham’s testimony did not waver on this point:
Lanham
maintained that he told Beck not to access Brodnik’s email.
Q:
All right. Do you recall when you first
determined that Ms. Beck had accessed
Doctor Brodnik’s e-mail if you told her
not to do it anymore?
A:
I absolutely did.
Q:
Why?
A:
Because of everything you just said. I am
not allowed to access someone’s e-mail
account without their permission unless I
have some authority to do it. And I did
not have any authority to do so.
Q:
Yeah, we just have to put this on the
record. We’re both on the same page here.
But I wanted to make certain, you know,
you understood that. So there isn’t any
question about that. If Doctor – if the
government wanted to access Doctor
Brodnik’s e-mail, it would have had to
13
have gone before a judge or used some
judicial method - warrant or Grand Jury
subpoena - to attempt to get that
information. Right?
A:
Yes.
Q:
Okay. And you believe that Ms. Beck,
through Doctor Brodnik’s e-mail, acquired
information about Doctor Brodnik’s will?
A:
I think that’s what it was.
Lanham Depo. at 34-35.
Lanham’s testimony is internally consistent on this issue
and there was no ambiguity.
Once he found out that Beck had
accessed Brodnik’s email, he told her not to do it again.
Q:
All right. Her accessing Doctor Brodnik’s e-mail
account was a big no-no, wasn’t it?
A:
For me, yes.
Q:
Yes. And so it was of such a significant
issue, why didn’t you make note of it in
your handwritten notes?
A:
Because that is one of the few things that
I remember to this day about that meeting.
* * *
Q:
I see on the Deposition Exhibit 3, you say
to her not to log on to Brodnik’s e-mail
account and view his mail anymore, right?
A:
Yes.
Lanham Depo. at 62-63.
Q:
And you – Ms. Beck is telling you about
changes to Doctor Brodnik’s will, correct?
A:
Yes.
14
Q:
And then there’s also a reference where it
says, “Beck obtained this information from
Brodnik’s e-mail.” Right?
A:
Yes.
Q:
And then you say, “I reminded Beck she was
not supposed to be looking at his e-mail
anymore.” Right?
A:
Yes.
Lanham Depo. at 84.
Furthermore, Lanham’s testimony was also clear that he
had no reason to believe that Beck accessed Brodnik’s email after
he told her not to do so.
Q:
Did you receive any indication in writing after
June of 2012 that Ms. Beck was accessing Doctor
Brodnik’s e-mails again?
A:
I didn’t receive it in writing, and I
didn’t receive anything from anyone
indicating that she was doing that.
Lanham Depo. at 88-89.
Q:
And there’s no way really to know if after
– except for looking at the documents and
trying to make that educated guess, after
June of 2002, any of the other things she
sent you came from the e-mails. There’s
no way to determine that, right?
A:
If I had suspected that that had happened,
just like I did with the wills - which
were of no use - I would have instructed
her and told her, “We told you not to do
that any more,” and I would have went to
the AUSA and said, “Look, we’ve got a
problem here.”
Q:
Did you do that?
A:
No, because it never happened.
15
Q:
You don’t know that she didn’t access it
again.
A:
Okay, you asked me did I go to the AUSA
and say that she had accessed his e-mail.
Q:
Yes.
A:
And I said it never happened, I never did
that because I am unaware of her accessing
his e-mail account after that one time.
Lanham Depo. at 94-95.
Q:
And how do you know that she had accessed
the e-mail account by looking at
Deposition Exhibit 3?
A:
Because that’s where I wrote in there that
I’d served her with a subpoena and I told
her not to take any documents out of the
office, and I explained to her it would
cause problems, and I told her not to
access the e-mail account anymore.
Q:
And do you know how it was that you
determined that she had logged into
Brodnik’s e-mail account?
A:
I asked her.
Q:
Okay.
A:
Otherwise I wouldn’t have known.
Q:
Okay. Did she show you any e-mails at
that time? At this March 20th, two
thousand interview.
A:
I don’t think she did, because she – I
asked her about the document and she
brought the document up, and once she
brought the document up and I asked where
it came from, then everything else was off
limits. We couldn’t go any father.
Told her to log out of it and not to do it
anymore.
16
Lanham Depo. at 122-23.
Q:
Okay. Are you aware of whether Ms. Beck
accessed Brodnik’s e-mail account more
than once?
A:
No. The one time that, you know, I
cautioned her not to do it anymore was the
only time that – well, it was the last
time. I think she had done it before, but
I didn’t know anything about any of it
until the time she did it in my presence.
Q:
Okay.
that.
A:
Yes. At that point, when I became aware
of it.
And in fact, you told her not to do
Lanham Depo. at 126-27.
Beck testified in a similar vein – that Lanham never told
her to access Brodnik’s email and that, when he found out she
had, he admonished her not to do so again.
Q:
Tell me how many times you – after your
employment ended with Doctor Brodnik or
Bluefield Women’s Center how many times
you accessed his e-mail account.
A:
Actually, it may have been two. I was
thinking one. But the reason I say two is
because the only reason I accessed it was
to see if I still had access before Mr.
Lanham came with the subpoena.
Beck Depo. at 6-7.
Q:
Okay. When you accessed Doctor Brodnik’s
e-mail, whichever time it was –
A:
Uh-huh.
Q:
– you say, Mr. Lanham was there, right?
17
A:
The one time. The first time that I did
it was – I was just trying to see if this
was information – as a perfectionist, I’m
not gonna give you bad information –
Q:
My question was: Mr. Lanham was there?
A:
The second time.
Q:
The second time Mr. Lanham was there.
A:
Yeah, because I handed it to him.
Q:
Right.
A:
I said, “I can’t believe he’s using my
password.”
Q:
Right.
A:
He told me not to do it anymore, and he
asked me, had I done it previously, and I
said, “Yes, when I checked to see if this
worked yesterday” – I think it was like
yesterday.
And then what did Mr. Lanham say?
* * *
Q:
And he was standing there while you were
accessing it.
A:
Yes, but I didn’t tell him what I was
doing. But I did go and key it in.
Beck Depo. at 32-34.
Upon repeated questioning, Beck’s testimony likewise
remained consistent on this issue:
Q:
And before you testified that you accessed
the e-mail account –
A:
Uh-huh.
Q:
– this network account –
A:
Uh-huh.
18
Q:
– using your e-mail and your log-in and
password –
A:
Uh-huh.
Q:
– because you had been served with a
subpoena –
A:
Yes.
Q:
– and it was your understanding that some
of the documents that were irrelevant were
in this – on this network.
A:
Could – you know, my understanding – my
point was that this might be something
that I had, this was information I had.
And if it was something that was supposed
to be in part of the subpoena, then that
was the way I looked at it, you know.
Q:
Okay.
A:
So yeah.
Q:
But Agent Lanham never told you to access
–
A:
No, no ma’am.
Q:
– this network.
A:
Actually, he said, “Have you done this
before?” And I said, “No.” And I had
not, except for just that night before.
And then he said, “Well, don’t do it
again.”
Q:
Okay.
A:
And I think he told me then, you know,
that – not to – he told me not to do it.
He said, “Don’t do this again.” He said,
“Don’t ever get into this again.” And I
didn’t.
Q:
Okay. And you mentioned before, as you
were testifying to Mr. Harris’ questions,
19
that at some point in time, you were
having a conversation – whether it was in
the kitchen or at some point, somewhere in
your house –
A:
Uh-huh.
Q:
– and then you walked over to the den and
accessed –
A:
Yes, yes.
Q:
– your computer.
A:
Yes.
Q:
And you went into the network account.
A:
Yes.
Q:
How did Agent Lanham react when you told
him that you had gone into this – into the
network?
A:
Well, he was visibly upset. I mean, he
said – that’s what he asked me, he said,
“Have you done this before?” That was his
first – and I said, “No.” And that’s when
he said, “Well, don’t do it again,” you
know. And so I didn’t. Yeah.
Q:
I mean, he made it clear to you not to do
this again.
A:
Yes, he made it very clear, yes, yes.
Beck Depo. at 57-59.
In her deposition, Beck maintained that her
decision to access the email was her belief, albeit mistaken,
that it was covered by the subpoena.5
5
In her response to plaintiff’s interrogatories, Beck
stated: “Deborah Beck acted at the direction of Robert Lanham who
presented himself and his credentials to her. She believed that
he had apparent authority to direct her to act both in interview
and to access an email account which she established and had the
20
Q:
And – but it’s your testimony here today
that at no point in time did Agent Lanham
ever tell you to access –
A:
No.
Q:
– this e-mail.
A:
No, no, no, no, no. No, he didn’t even
know about it until, like I said, I think
I went in there and was getting my stuff
together and I said, “Oh, by the way,” I
think – I said, “Oh, by the way, there’s
an e-mail address,” and I typed that in
very quickly while I was talking.
But he did – he told me, “Have you done this
before? Don’t do it again.” And I didn’t.
Beck Depo. at 64.
“We start with the presumption that conduct by private
actors is not state action.”
Florer v. Congregation Pidyon
Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011).
“[Plaintiff]
bears the burden of establishing that Defendants were state
actors.”
Id.; see also United States v. Aldridge, 642 F.3d 537,
541 (7th Cir. 2011) (“The defendant bears the burden of proving
agency, based on all the circumstances.”); United States v.
Ellyson, 326 F.3d 522, 527 (4th Cir. 2003) (“The burden of
proving that a private party acted as an agent or instrument of
the government is on the defendant.”); Mertens v. Shensky, No.
password to access and which account she had used while within
her employment with the plaintiff.” (ECF No. 102-1). During her
deposition, Beck explained that, in answering the interrogatory
as she did, she thought that the search of the email was covered
by the subpoena and not because Lanham had directed her to access
the email. Beck Depo. at 62-65.
21
CV05-147-N-EJL, 2006 WL 173651, *3 (D. Idaho Jan. 23, 2006) (“The
plaintiff bears the burden of showing that a private person is a
state actor for the purposes of § 1983 [or Bivens].”).
“Whether
an agency relationship exists is a fact-intensive inquiry that is
guided by common law agency principles.”
Ellyson, 326 F.3d at
527.
In this case, there is no Fourth Amendment violation
because Beck, a private citizen, accessed Brodnik’s email of her
own volition.
There is simply no evidence that Lanham encouraged
Beck to do so or that he knew what she was doing until after the
fact.
The Fourth Amendment does not apply “to a search or
seizure, even an unreasonable one, effected by a private
individual not acting as an agent of the Government or with the
participation or knowledge of any government official.”
United
States v. Jacobsen, 466 U.S. 109, 114 (1984) (quoting Walter v.
United States, 447 U.S. 649, 662 (1980)).
As our appeals court
has explained:
Of course, it is private individuals, not City
officials, who have actually interfered with
Presley’s possessory interests here. Although
private actions generally do not implicate the
Fourth Amendment, when a private person acts as an
agent of the Government or with the participation
or knowledge of any governmental official, then
the private person’s acts are attributed to the
government. The government need not compel nor
even involve itself directly in the private
person’s actions.
22
Presley v. City of Charlottesville, 464 F.3d 480, 487 (4th Cir.
2006) (internal citations and quotations omitted).
The undisputed evidence is that Lanham did not acquiesce
in Beck’s search of Brodnik’s email nor did he know about it
prior to or as it was happening.6
In fact, upon finding out
about it, he told her not to do it again.
Beck testified that
she accessed Brodnik’s email, not because Lanham told her to, but
because (1) she thought it fell under the scope of the subpoena
she received and (2) she was motivated by a desire to protect
herself.
“One highly pertinent consideration [to whether an
6
Brodnik’s attempt to cast Beck as a government agent after
the search of Brodnik’s email fails. The pertinent inquiry is
whether the private actor was a government agent at the time of
the search. Cf. United States v. Kinney, 953 F.2d 863, 865 (4th
Cir. 1992) (rejecting notion “that even if the search was
originally private in nature, the police, in their subsequent
participation, exceeded the scope of the initial private search,
thereby making their actions unlawful.”). The emails between
Beck and Lanham were all dated after the search of Brodnik’s
email occurred. See ECF Nos. 107-1, 107-2, and 107-3. Such
evidence is insufficient to show that Lanham knew of and
acquiesced in Beck’s email search. See United States v. Jarrett,
338 F.3d 339, 346 (4th Cir. 2003) (“Although, as the Government
conceded at oral argument, the [ ] email exchange probably does
constitute the sort of active Government participation sufficient
to create an agency relationship going forward (absent other
countervailing facts), the district court erred in relying on
this exchange to find that the Government knew of and acquiesced
in the Jarrett search. This is so because Unknownuser’s email
exchange with Faulkner took place after Unknownuser had hacked
into Jarrett’s computer, after the fruits of Unknownuser’s
hacking had been made available to the FBI. . . . Thus,
Faulkner’s knowledge and acquiescence was entirely post-search.
Such after-the-fact conduct cannot serve to transform the prior
relationship between Unknownuser and the Government into an
agency relationship with respect to the search of Jarrett’s
computer.”) (emphasis in original).
23
agency relationship exists] is `whether the government knew of
and acquiesced in the intrusive conduct and whether the private
party’s purpose for conducting the search was to assist law
enforcement efforts or to further her own ends.”
United States
v. Ellyson, 326 F.3d 522, 527 (4th Cir. 2003) (quoting United
States v. Feffer, 831 F.2d 734, 739 (7th Cir. 1987)).
Furthermore, “[p]re-search contact between a government official
and a private citizen, whether or not intended by the official to
prompt the citizen to render some type of assistance, does not,
by itself, turn a private party into an agent of the government.”
Mutual Med. Plans, Inc. v. County of Peoria, 309 F. Supp. 2d
1067, 1076 (C.D. Ill. 2004).
“In order to run afoul of the Fourth Amendment,
therefore, the Government must do more than passively accept or
acquiesce in a private party’s search efforts.
Rather, there
must be some degree of participation in the private search.”
United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003).
the court explained:
Viewed in the aggregate, then, three major
lessons emerge from the case law. First, courts
should look to the facts and circumstances of each
case in determining when a private search is in
fact a Government search. Second, before a court
will deem a private search a Government search, a
defendant must demonstrate that the Government
knew of and acquiesced in the private search and
that the private individual intended to assist law
enforcement authorities. Finally, simple
acquiescence by the Government does not suffice to
transform a private search into a Government
24
As
search. Rather, there must be some evidence of
Government participation in or affirmative
encouragement of the private search before a court
will hold it unconstitutional. Passive acceptance
by the government is not enough.
Id. at 345-46.
In this case, not only is there a lack of
government participation or encouragement, there is also vehement
government opposition to the search as evidenced by Lanham’s
directive to Beck not to access Brodnik’s email in the future.
Furthermore, to the extent that plaintiff makes much of
the fact that Lanham kept the printout obtained from Beck’s
search of Brodnik’s email, it does not alter the court’s
analysis.
“[E]vidence secured by private searches, even if
illegal, need not be excluded from a criminal trial.”
United
States v. Ellyson, 326 F.3d 522, 527 (4th Cir. 2003); see also
United States v. Wolfson, 160 F. App’x 95, 97-98 (2d Cir. 2005)
(“[T]he subsequent seizure of the boxes was quite clearly carried
out without the government’s knowledge or encouragement, and
hence, does not implicate the Fourth Amendment.”); United States
v. Kinney, 953 F.2d 863, 865 (4th Cir. 1992) (“The Fourth
Amendment is directed exclusively at state action and evidence
secured by private searches, even if illegal, need not be exluded
from a criminal trial.”).
Likewise, plaintiff’s argument that Beck’s possible
status as a government informant is of no legal moment.
It seems
clear that Beck was a confidential informant for the government.
25
See Lanham Depo. at 102-03.
Lanham conceded as much.
See id.
However, the allegations in the complaint – that Lanham
financially incentivized Beck to access Brodnik’s email – are not
borne out by the record because there is no evidence that Beck
was a paid government informant.
Beck Depo. at 14-15.
See Lanham Depo. at 30-31, 102;
Furthermore, there is no hard and fast rule
that the actions of a government informant, paid or otherwise,
always rise to the level of government action.
See Hiser v. City
of Bowling Green, 42 F.3d 382, 383 (6th Cir. 1994) (acknowledging
that the court has “refused to establish a per se rule that the
activities of paid government informants must always be
considered government action.”) (internal quotation and citation
omitted); Ghandi v. Police Dept. of City of Detroit, 823 F.2d
959, 963 (6th Cir. 1987) (“[W]e reject plaintiffs’ invitation to
establish a per se rule that the activities of paid government
informants must always be considered government action.”).
In
any event, informant or not, Lanham could not have been clearer
that Beck was not to access Brodnik’s email.
Q:
Okay. But I want to get back to
you said, which was, if she – if
an informant, she would not have
permitted to access the e-mail.
A:
That is irrelevant.
Q:
It’s not irrelevant. I can have her read
it back, or we’ll stand on what you said
earlier.
A:
If I said that –
26
something
she was
been
And –
Q:
All right.
A:
– fine.
Q:
All right.
A:
But what I’m trying to tell you is: It
doesn’t matter if she’s an informant, if
she is the president of the United States,
an attorney or whatever else. I would
have instructed her “Do not access his email.”
Because I could not do that, and since she
had talked to me, I knew that we would be
right where we’re at now with an attorney
trying to say that she was my agent –
Q:
Well –
A:
– and she was not. And she did not act at
my direction to access that e-mail.
* * *
A:
We’re speaking two different languages
here. You’re speaking what that says.
She is termed a confidential informant to
try to protect her identity. The word
“informant” that you’re hung up on is –
it’s a technical term for federal law
enforcement and all law enforcement, is a
person who has been taken in and is –
records are kept, payments are made to
them, etc., etc., etc.
Q:
But –
A:
That’s what you’re getting hung up on.
And it doesn’t matter – it doesn’t matter
what she was, as I’ve said. I would have
told her, “Don’t access the e-mail.”
Lanham Depo. at 100-03.
As the Fourth Circuit has noted, there must be “clear
indices of [Lanham’s] encouragement, endorsement, and
27
participation . . . to implicate the Fourth Amendment.”
Presley
v. City of Charlottesville, 464 F.3d 480, 488 (4th Cir. 2006).
The uncontroverted evidence in this case is that Lanham neither
encouraged, endorsed, or participated in Beck’s search of
Brodnik’s email.
For these reasons, Lanham’s motion for summary
judgment is granted.
III.
Conclusion
For the reasons expressed above:
1)
Plaintiff’s Motion For Court to Make Finding As to
Whether or Not Defendant Deborah Beck is a State
Actor for Purposes of Bivens Liability (construed
as a motion for partial summary judgment in
plaintiff’s favor) is DENIED;
2)
Lanham’s Motion for Summary Judgment as to Count I
is GRANTED; and
3)
Pursuant to concerns regarding HIPAA and
confidential medical information, ECF Nos. 103-1
and 103-2 are to be filed under SEAL.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 30th day of March, 2018.
ENTER:
David A. Faber
Senior United States District Judge
28
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