Brodnik v. Lanham et al
Filing
58
MEMORANDUM OPINION AND ORDER: the United States' 29 MOTION to Dismiss is GRANTED as to Count I and DENIED in all other respects; Lanham's 31 MOTION to Dismiss is GRANTED as to Counts I and II. Plaintiff is permitted to file an amended complaint within 30 days that will address the deficiencies noted herein as to his Bivens claim. Signed by Judge David A. Faber on 10/29/2014. (cc: counsel of record) (mjp)
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 is the United States' partial
motion to dismiss the Amended Complaint and Robert Lanham’s
motion to dismiss.
(Docs. No. 29, 31).
For reasons expressed
more fully below, the motion of the United States is GRANTED in
part and DENIED in part and Lanham’s motion is GRANTED.
I.
Background
According to the First 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.
As a result of a six-year investigation
of plaintiff Randy Michael Brodnik, D.O. (“Brodnik”) for income
tax evasion, Lanham recommended that Brodnik be prosecuted.
id. at ¶ 10.
See
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.
11.
See id. at ¶
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.
According to the Complaint, at Brodnik’s trial, Lanham
testified that it was “debatable” that Brodnik had broken the
law.
See id. at ¶ 16.
Brodnik further alleges that one of the
government’s witnesses, defendant Deborah Beck, testified at
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.
Count II of the Complaint alleges that defendant Beck made
numerous wrongful disclosures of plaintiff’s tax return
information during the investigation, in violation of Internal
Revenue Code § 7431.
Counts III through VII are state law claims
for civil conspiracy, invasion of privacy, outrage, intentional
infliction of emotional distress, and malicious prosecution
against defendants Lanham and Beck.
As to the state law claims, (Counts III, IV, V, VI, and
VII), the United States moved to dismiss defendant Lanham and
substitute the United States as a defendant.
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By Memorandum
Opinion and Order dated July 10, 2014, the court granted the
United States’ motion.
II.
Standard of Review
"[A] motion to dismiss for failure to state a claim for
relief should not be granted unless it appears to a certainty
that the plaintiff would be entitled to no relief under any state
of facts which could be proved in support of his claim."
Rogers
v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.
1989) (citation omitted) (quoting Conley v. Gibson, 355 U.S. 41,
48 (1957), and Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.
1969)).
"In considering a motion to dismiss, the court should
accept as true all well-pleaded allegations and should view the
complaint in a light most favorable to the plaintiff."
Mylan
Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993);
see also Ibarra v. United States, 120 F.3d 474, 474 (4th Cir.
1997).
In evaluating the sufficiency of a pleading, the cases of
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), provide guidance.
When reviewing a
motion to dismiss, under Federal Rule of Civil Procedure
12(b)(6), for failure to state a claim upon which relief may be
granted, a court must determine whether the factual allegations
contained in the complaint “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests,”
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and, when accepted as true, “raise a right to relief above the
speculative level.”
Twombly, 550 U.S. at 555 (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957); 5 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1216 (3d ed.2004)).
“[O]nce a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in
the complaint.”
Twombly, 550 U.S. at 563.
As the Fourth Circuit
has explained, “to withstand a motion to dismiss, a complaint
must allege ‘enough facts to state a claim to relief that is
plausible on its face.’”
Painter's Mill Grille, LLC v. Brown,
716 F.3d 342, 350 (4th Cir. 2013) (quoting Twombly, 550 U.S. at
570).
According to Iqbal and the interpretation given it by our
appeals court,
[L]egal conclusions, elements of a cause of
action, and bare assertions devoid of further
factual enhancement fail to constitute well-pled
facts for Rule 12(b)(6) purposes. See Iqbal, 129
S. Ct. at 1949. We also decline to consider
“unwarranted inferences, unreasonable conclusions,
or arguments.” Wahi v. Charleston Area Med. Ctr.,
Inc., 562 F.3d 599, 615 n. 26 (4th Cir. 2009); see
also Iqbal, 129 S. Ct. at 1951–52.
Ultimately, a complaint must contain “sufficient
factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
167 L. Ed.2d 929 (2007)). Facial plausibility is
established once the factual content of a
complaint “allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged.” Id. In other words, the
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complaint's factual allegations must produce an
inference of liability strong enough to nudge the
plaintiff's claims “‘across the line from
conceivable to plausible.’” Id. at 1952 (quoting
Twombly, 550 U.S. at 570, 127 S. Ct. 1955).
Satisfying this “context-specific” test does not
require “detailed factual allegations.” Id. at
1949–50 (quotations omitted). The complaint must,
however, plead sufficient facts to allow a court,
drawing on “judicial experience and common sense,”
to infer “more than the mere possibility of
misconduct.” Id. at 1950. Without such “heft,”
id. at 1947, the plaintiff's claims cannot
establish a valid entitlement to relief, as facts
that are “merely consistent with a defendant's
liability,” id. at 1949, fail to nudge claims
“across the line from conceivable to plausible.”
Id. at 1951.
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
255–56 (4th Cir. 2009).
III.
A.
Analysis
United States
The United States has moved to dismiss all claims against
it except for certain portions of Count II.
According to the
United States, Count I, a Bivens claim, may not be brought
against the United States.
As to Count II, certain of the
alleged unauthorized disclosures do not allege the disclosure of
tax information or they allege authorized disclosures.
As to the
remaining state law claims, given the substitution of the United
States, the United States argues that such claims may only be
brought pursuant to the Federal Tort Claims Act (“FTCA”).
Alleging that plaintiff has failed to exhaust his administrative
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remedies under the FTCA, the United States says those claims are
subject to dismissal for lack of subject matter jurisdiction.
As to Count I, plaintiff agrees that Count I should be
dismissed against the United States.
Regarding Count II,
plaintiff contends that he has properly alleged sufficient facts
to sustain his claims for wrongful disclosure and requests that
discovery be permitted.
Finally, as to the remaining counts,
Brodnik argues that the motion to dismiss is premature given that
the court had yet to rule on the motion for substitution as of
the filing of the United States’ motion.
The court agrees with plaintiff that the motion to
dismiss as to Count II should be denied at this juncture.
Indeed, it is clear from briefs filed by both parties that such a
determination would be better made via a motion for summary
judgment because resolution of the claims is largely bound up in
the facts of the case and plaintiff has not yet had the
opportunity to conduct discovery.
For this reason, the motion to
dismiss will be DENIED as to Count II.
Finally, with respect to the remaining state law counts,
the court has granted the United States’ motion for substitution.
However, plaintiff has not been provided an opportunity to
demonstrate that he has exhausted his administrative remedies.
Accordingly, the motion to dismiss will be DENIED without
prejudice in order to allow plaintiff to demonstrate that he has
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in fact exhausted his administrative remedies.
The United States
may, however, renew its motion to dismiss regarding failure to
exhaust.
B.
Robert Lanham
Lanham has moved to dismiss Count I, the Bivens claim,
arguing that plaintiff has failed to plead facts showing that he
deprived Brodnik of clearly established constitutional rights.
Lanham also argues that he is shielded from liaiblity by absolute
and/or qualified immunity.
A Bivens action is a judicially created damages remedy
which is designed to vindicate violations of constitutional
rights by federal actors.
See Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388, 395-97 (1971);
Davis v. Passman, 442 U.S. 228, 239 n. 18 (1979)(extending Bivens
to allow citizen's recovery of damages resulting from a federal
agent's violation of the Due Process Clause of the Fifth
Amendment).
A plaintiff asserting a claim under Bivens must show
the violation of a valid constitutional right by a person acting
under color of federal law.
A Bivens action is the federal
counterpart of an action under 42 U.S.C. § 1983.
at 675-76.
Iqbal, 556 U.S.
Section 1983 is not itself a source of substantive
rights, but merely provides a method for vindicating federal
rights elsewhere conferred.”
Albright v. Oliver, 510 U.S. 266,
271 (1994) (Section 1983 “merely provides a method for
7
vindicating federal rights elsewhere conferred”).
In other
words, the Constitution supplies the rights and duties and
otherwise fills in the content of a § 1983 claim. So “[t]he first
step in any such claim is to identify the specific constitutional
right allegedly infringed.”
Id.
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 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
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applicable unless the official's conduct violated
a clearly established constitutional right.
Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009).
The Supreme
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.”
id. at 818.
See
“[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 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
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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
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)).
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As noted above, the first step in evaluating a Bivens
claim is to identify the specific constitutional right allegedly
violated.
The court agrees with Lanham that plaintiff has failed
to identify the specific constitutional right forming the basis
of his Bivens claim.
For example, the Complaint does not point
to any specific provision of federal law allegedly violated by
Lanham’s conduct but, rather, states that Lanham’s actions
“include deprivation of property rights and unlawful seizures of
property without adequate justification or cause, plaintiff
Brodnik was deprived of rights guaranteed under the Constitution
of the United States.”
First Amended Complaint at ¶ 25.
Lanham
construed plaintiff’s Bivens count to allege violations of the
Fourth and Fifth Amendment.
See Doc. No. 30 at p. 6 n.6.
Plaintiff’s brief in response to the motion to dismiss does
little to clear up the matter.
He states:
Defendant Lanham testified at the criminal trial
of plaintiff that it was “debatable” as to whether
plaintiff Brodnik violated the law. This fact
supports plaintiff’s allegation that defendant
Lanham deprived plaintiff of property rights
because defendant Lanham did not believe that a
crime had occurred. Furthermore, without
suspicion that a crime had occurred, defendant
Lanham’s actions in unlawfully seizing plaintiff’s
property also constitutes a deprivation of
plaintiff’s property rights.
Defendant Lanham argues that to the extent
plaintiff alleges that the actions taken by
defendant Beck (illegally accessing plaintiff
Brodnik’s electronic mail) were caused by
defendant Lanham, plaintiff’s claims would fail
because there is no vicarious liability. However,
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defendant Lanham participated in defendant Beck’s
actions by using the illegally access electronic
mail in the prosecution of plaintiff Brodnik. . .
. 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. 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.
Doc. No. 39 at pp. 3-4.
Without opining on the merits or viability of any such
claims, the court believes that the foregoing might be
interpreted as alleging the violation of several different
constitutional rights.
For example, is Brodnik alleging that
Lanham’s testimony at trial violated his Fifth Amendment due
process rights.
But see, e.g., Washington v. Hanshaw, 552 F.
App’x 169, 172 (3d Cir. 2014) (“The Supreme Court has made clear,
however, that [the right to be free from criminal prosecution
except upon probable cause] does not sound in substantive due
process.”); Osborne v. Rose, 133 F.3d 916 (4th Cir. 1998)
(unpublished).
Or is he alleging that Lanham’s testimony is
sufficient to state a so-called Bivens “malicious prosecution”
claim under the Fourth Amendment?
See Snider v. Seung Lee, 584
F.3d 193, 199 (4th Cir. 2009) (plaintiff “is free to pursue a
claim under the Fourth Amendment that has two elements - a
wrongful seizure and a termination in her favor of the
proceedings following her seizure”); Lambert v. Williams, 223
12
F.3d 257, 262 (4th Cir. 2000) (“[T]here is no such thing as a `§
1983 malicious prosecution’ claim.
What we termed a `malicious
prosecution’ claim in Brooks is simply a claim founded on a
Fourth Amendment seizure that incorporates elements of the
analogous common law tort of malicious prosecution- specifically,
the requirement that the prior proceeding terminate favorably to
the plaintiff.”).
And of the allegedly illegal access to
Brodnik’s email, is plaintiff asserting that Lanham violated his
Fourth Amendment rights by using Beck to illegally search and
seize the emails?
See United States v. Jacobsen, 466 U.S. 109,
113 (1984) (The Fourth Amendments proscribes “only governmental
action; it is wholly inapplicable 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 governmental official.”) (internal quotations omitted);
United States v. Jarrett, 338 F.3d 339 (4th Cir. 2003) (“The
question commonly posed is whether an individual acted as an
`instrument’ or `agent’ of the government.
Determining whether
the requisite agency relationship exists “necessarily turns on
the degree of the Government's participation in the private
party's activities. . .
.”)(quoting Skinner v. Railway Labor
Executives' Ass'n, 489 U.S. 602, 614-15 (1989)).
the above or all three?
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Is it none of
Nailing down the specific right or rights allegedly
violated is especially necessary in determining whether qualified
immunity protects the government official’s actions as the court
must determine whether such right was “clearly established.”
Without knowing the specific right allegedly violated, the court
is unable to make such a determination because, as noted earlier,
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.
For all these reasons, Lanham’s motion to dismiss Count I
is GRANTED.
The court will, however, permit plaintiff to attempt
to cure the deficiencies noted herein by filing an amended
complaint within thirty days of entry of this Memorandum Opinion
and Order.
As to Count II, plaintiff agrees that Lanham is not a
proper party and should be dismissed.
III.
Conclusion
For the reasons expressed above, the United States’
motion to dismiss is GRANTED as to Count I and DENIED in all
other respects.
Lanham’s motion to dismiss is GRANTED as to
Counts I and II.
However, plaintiff is permitted to file an
amended complaint within 30 days that will address the
deficiencies noted herein as to his Bivens claim.
The Clerk is
directed to send a copy of this Memorandum Opinion and Order to
counsel of record.
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IT IS SO ORDERED this 29th day of October, 2014.
ENTER:
David A. Faber
Senior United States District Judge
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