Brodnik v. Lanham et al

Filing 83

MEMORANDUM OPINION AND ORDER: The court DENIES Lanham's 78 MOTION to Dismiss Count I pursuant to FTCA judgment bar; GRANTS in part and DENIES in part Lanham's 70 Motion to Dismiss Count I; DENIES Beck's 68 AMENDED MOTION to Dismiss; and DENIES as moot Beck's 66 MOTION to Dismiss. The court will enter a separate Order regarding discovery. Signed by Senior Judge David A. Faber on 8/1/2016. (cc: all counsel of record) (arb)

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
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.
(“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.

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 Brodnik 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 against Brodnik, the court
granted the motion of the United States to dismiss defendant
Lanham and substitute the United States as a defendant.
56).

(ECF No.

Thereafter, by Order entered on August 6, 2015, the court

dismissed without prejudice plaintiff’s FTCA claims against the
United States for failure to exhaust administrative remedies.
(ECF No. 77).
Both Lanham and Beck have filed motions to dismiss.

2

II.
A.

Analysis

Lanham’s Motions to Dismiss
1.

FTCA Judgment Bar
Defendant Robert Lanham has moved to dismiss the Bivens

claim brought against him on the ground that it is barred by the
Federal Tort Claims Act (“the Act” or “FTCA”) judgment bar, 28
U.S.C. § 2676.

(ECF No. 78).

By Order entered on August 6,

2015, the court dismissed with prejudice plaintiff’s FTCA claims
against the United States for failure to exhaust administrative
remedies.

(ECF No. 77).

Plaintiff contends that the judgment

bar rule does not operate as a bar to bringing his Bivens claim
because the order dismissing his FTCA claims was not, according
to him, a final judgment.

Lanham, relying on a number of cases,

including several from the Southern District of West Virginia,
argues that 28 U.S.C. § 2676 is not limited to final judgments.
According to Lanham, “judgment” means any judgment, final or not.
Shortly after Lanham filed his motion to dismiss, on
November 6, 2015, the United States Supreme Court granted
certiorari in Simmons v. Himmelreich, to answer the question
whether a final judgment dismissing an FTCA case on the ground
that relief is precluded by one of the FTCA’s exceptions to
liability, 28 U.S.C. § 2680, bars a subsequent action by the
claimant against the federal employees whose acts gave rise to
the FTCA claim.

Simmons v. Himmelreich, 766 F.3d 576, cert.

3

granted, 136 S. Ct. 445 (2015).

Given Lanham’s position that any

judgment is barred by the FTCA judgment bar, Himmelreich had the
potential to affect the court’s decision with respect to the
instant motion.

On June 6, 2016, the Supreme Court issued its

opinion in Himmelreich, concluding that the FTCA’s judgment bar
rule does not bar a Bivens suit against Bureau of Prisons
employees where Himmelreich’s earlier FTCA suit had been
dismissed based upon the discretionary function exception.
Simmons v. Himmelreich, 136 S. Ct. 1843, 1847-48 (2016).
One court explained the significance of the FTCA judgment
bar and the choices a plaintiff who seeks relief under the FTCA
and Bivens must make.
A prospective plaintiff seeking redress against
a federal official for injury has two distinct
avenues of relief. He may file a common law tort
claim against the United States under the FTCA
and– or in the alternative – he may file a
constitutional tort claim against the individual
officer under Bivens.
In deciding whether to pursue a claim under the
FTCA or under Bivens, or both, a plaintiff must
consider the distinct advantages and drawbacks fo
the two causes of action. First, the defendant in
an FTCA action is the United States, whereas in a
Bivens suit the defendant is the individual
official. 28 U.S.C. §§ 1346(b) & 2674. The
obvious advantage to pursuing an FTCA claim is
that payment of a successful claim is assured
through the deep pockets of the United States
treasury; whereas a successful judgment against an
individual defendant may not be satisfied if the
defendant lacks sufficient assets. S. Rep. No.
588, at 2-3 (1973), reprinted in 1974 U.S.C.C.A.N.
2789. Second, while a jury trial is available in
a Bivens suit, only a bench trial is permitted
4

under the FTCA. 28 U.S.C. § 2402. Third,
punitive damages are available in a Bivens action
but are not available under the FTCA. Id. § 2674.
Finally, a judgment under the FTCA constitutes “a
complete bar to any action by the claimant, by
reason of the same subject matter, against the
employee of the government whose act or omission
gave rise to the claim.” 28 U.S.C. § 2676. Thus,
if a plaintiff elects to pursue a remedy under the
FTCA to judgment, he risks dismissal of any Bivens
claim if the Bivens claim arises from “the same
subject matter” and is against the same “employee
whose act or omission gave rise to the claim.”
Id. This is true whether the FTCA claim is
brought before or after the Bivens claim, or if,
as here, both claims are brought in the same suit.
This is also true irrespective of whether the FTCA
judgment is favorable to the plaintiff or the
United States.
Sanchez v McLain, 867 F. Supp.2d 813, 816-17 (S.D.W. Va. 2011)
(Johnston, J.); see also Unus v. Kane, 565 F.3d 103, 122 (4th
Cir. 2009) (“Litigants frequently face tough choices – choices
that rarely come without consequence.

In these proceedings, the

plaintiffs chose to pursue their claims against the federal agent
defendants through Bivens as well as under the FTCA.

As such,

they risked having a judgment on the FTCA claims operate to bar
their Bivens theories.”).
The Federal Tort Claims Act “allows plaintiffs to seek
damages from the United States for certain torts committed by
federal employees.”

Himmelreich at 1845.

The Act provides in

pertinent part:
[T]he district courts . . . shall have
exclusive jurisdiction of civil actions on
claims against the United States, for money
damages . . . for injury or loss of property,
5

or personal injury or death caused by the
negligent or wrongful act or omission of any
employee of the Government while acting
within the scope of his office or employment,
under circumstances where the United States,
if a private person, would be liable to the
claimant in accordance with the law of the
place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
“In most cases, an FTCA action is the exclusive civil
remedy available against government employees acting within the
scope of their employment.”

Donahue v. Connolly, 890 F. Supp.2d

173, (D. Mass. 2012) (citing 28 U.S.C. § 2679(b)(1)).

There is,

however, an exception to the Act for claims alleging
Constitutional violations.

See id.

Therefore, a plaintiff is

permitted “to bring both an FTCA claim and Bivens claim against
the individual defendants, and courts often bifurcate the
proceedings to address the FTCA claim first.”

Id.

At issue in this case is § 2676 of the FTCA, the Judgment
Bar which states:
The judgment in an [FTCA] action . . . shall
constitute a complete bar to any action by the
claimant, by reason of the same subject matter,
against the employee of the government whose act
or omission gave rise to the claim.
The Act does not define “judgment”.

See Donahue, 890 F. Supp.2d

at 179 (“Unfortunately, the Act does not define the key term
`judgment,’ in Section 2676.”).

Donahue suggested the following

definition for “judgment” from the Fourth Edition of Black’s Law
Dictionary might be an appropriate one: “The official and
6

authentic decision of a court of justice upon the respective
rights and claims of the parties to an action or suit therein
litigated and submitted to its determination.”

Id. at 179-80

(quoting Black’s Law Dictionary 977 (4th ed. 1951)).

Donahue

goes on to discuss the legislative history of the FTCA and
concluded that “the judgment bar’s legislative history undercuts
[defendant]’s argument that the judgment bar ought to be applied
to all judgments, no matter their import or quality.”

Id. at

182-83.
While the FTCA does not define the term “judgment,” the
Federal Rules of Civil Procedure do.

Federal Rule of Civil

Procedure 54(a) provides: “`Judgment’ as used in these rules
includes a decree and any order from which an appeal lies.”

As a

general matter, “[a]n order dismissing a complaint without
prejudice is not an appealable final order under § 1291 if `the
plaintiff could save his action by merely amending his
complaint.’”

Goode v. Central Virginia Legal Aid Society, Inc.,

807 F.3d 619, 623 (4th Cir. 2015) (quoting Domino Sugar Corp. v.
Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.
1993); see also Green v. Booker, No. 05-6298, 149 F. App’x 140,
141 (4th Cir. Sept. 1, 2005) (“The district court’s dismissal
without prejudice is not appealable.”).
In the instant case, the dismissal for failure to exhaust
administrative remedies was without prejudice.

7

Furthermore, the

United States conceded that plaintiff would have sixty days from
dismissal of the claims to exhaust his administrative remedies.
Therefore, it appears that plaintiff can “save” his claims merely
by amending his complaint.

Accordingly, the court concludes that

its earlier order dismissing plaintiff’s FTCA claims without
prejudice was not a “judgment” within the meaning of the judgment
bar provision.1
For these reasons, Lanham’s motion to dismiss based on
the FTCA’s judgment bar is DENIED.
2.

Bivens Claim and Immunity

Brodnik’s Bivens claim against Lanham is grounded in
three actions on the part of Lanham: 1) his testimony at
Brodnik’s trial; 2) his recommendation to prosecute Brodnik; and
3) his acquisition of Brodnik’s email via Beck.

The court

considers each in turn.

1

As in Himmelreich, the court’s determination that the
judgment bar rule does not apply herein makes sense.
Ordinarily, the judgment bar provision prevents
unnecessarily duplicative litigation. If the District
Court in this case had issued a judgment dismissing
Himmelreich’s first suit because the prison employees
were not negligent, because Himmelreich was not harmed,
or because Himmelreich simply failed to prove his
claim, it would make little sense to give Himmelreich a
second bite at the money-damages apple by allowing suit
against the employees: Himmelreich’s first suit would
have given him a fair chance to recover damages for his
beating.
Himmelreich, 136 S. Ct. at 1849. In this case, Brodnik has not
yet had his one “fair chance” at the “money-damages” apple.
8

a.

Witness Immunity

To the extent that Brodnik’s Bivens claim against Lanham
stems from Lanham’s testimony at trial, Lanham is entitled to
absolute immunity for his testimony as a witness.

As the Supreme

Court has held, “the immunity of a trial witness sued under §
1983 [and Bivens] is broader: In such a case, a trial witness has
absolute immunity with respect to any claim based on the witness’
testimony.”

Rehberg v. Paulk, 132 S. Ct. 1497, 1505 (2012)

(citing Briscoe v. LaHue, 460 U.S. 325 (1983)) (emphasis in
original); see also Lyle v. Sparks, 79 F.3d 372, 378 (4th Cir.
1996)(citing with approval Briscoe’s holding that “government
officials who testify at criminal trials are absolutely immune
from damages liability based on their testimony” and concluding
that government official’s grand jury testimony enjoyed absolute
immunity); Collis v. United States, 498 F. Supp.2d 764, 771 (D.
Md. 2007) (FBI agent entitled to absolute immunity as a
government witness testifying before grand jury even assuming
target would not have been indicted but for agent’s allegedly
false testimony); Caldwell v. Green, 451 F. Supp.2d 811, 820
(W.D. Va. 2006) (holding deputy sheriff had absolute witness
immunity from damages liability under § 1983 based on grand jury
testimony); Bragdon v. Malone, 425 F. Supp.2d 1, 3 (D.D.C. 2006)
(FBI agent “is correct in his assertion that he is absolutely
immune from civil prosecution for his trial testimony.”).

9

The Supreme Court has also made clear that this absolute
immunity extends to law enforcement witnesses.

See Rehberg, 132

S. Ct. at 1505 (“Neither is there any reason to distinguish law
enforcement witnesses from lay witnesses.

In Briscoe, it was

argued that absolute immunity was not needed for police-officer
witnesses, but the Court refused to draw that distinction.”).
When a police officer appears as a witness he may
reasonably be viewed as acting like any other
witness sworn to tell the truth – in which event
he can make a strong claim to witness immunity;
alternatively, he may be regarded as an official
performing a critical role in the judicial
process, which event he may seek the benefit
afforded to other governmental participants in the
same proceeding. Nothing in the language of the
statute suggests that such a witness belongs in a
narrow, special category lacking protection
against damages suits.
Briscoe, 460 U.S. at 335-36.

For this reason, Lanham’s trial

testimony is absolutely immune from Bivens liability.
b.

Prosecutorial Immunity

It is well established that prosecuting attorneys are
entitled to absolute immunity for actions taken in their role as
a prosecuting attorney.

As our appeals court has explained:

In Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct.
984, 47 L.Ed.2d 128 (1976), the Supreme Court held
that a prosecutor enjoys absolute immunity from
suit for conduct “in initiating and in presenting
the State's case.” Id. at 431, 96 S. Ct. at 994.
The Court explained:
A prosecutor is duty bound to exercise his
best judgment both in deciding which suits to
bring and in conducting them in court. The
public trust of the prosecutor's office would
10

suffer if he were constrained in making every
decision by the consequences in terms of his
own potential liability in a suit for
damages. Such suits could be expected with
some frequency, for a defendant often will
transform his resentment at being prosecuted
into the ascription of improper and malicious
actions to the State's advocate.
Id. at 424-25, 96 S. Ct. at 991-92. This court
has repeatedly reaffirmed that a prosecutor is
entitled to absolute immunity for claims that rest
on her decisions regarding “whether and when to
prosecute.” Lyles v. Sparks, 79 F.3d 372, 377
(4th Cir. 1996) (quoting Imbler, 424 U.S. at 431
n. 33, 96 S. Ct. at 996 n. 33); see also Ehrlich
v. Giuliani, 910 F.2d 1220 (4th Cir.1990).
Springmen v. Williams, 122 F.3d 211, 213 (4th Cir. 1997).
As noted above, a prosecutor is entitled to absolute
immunity for the initiation and prosecution of a criminal case.
Springmen, 122 F.3d at 212-13 (“The doctrine of absolute immunity
squarely covers a prosecutor's decision to go forward with a
prosecution.”).

Furthermore, “prosecutorial immunity extends to

certain agents of the prosecutor when they are engaged in
performing tasks that are inherently prosecutorial in nature.”
Joseph v. Shepherd, Nos. 04-4212, 05-4181, 211 F. App’x 692, 697
(10th Cir. Dec. 15, 2006) (absolute immunity attached to actions
of investigator for district attorney who presented criminal
charges to the D.A.); see also Nogueros-Cartagena v. United
States Department of Justice, No. 03-1113, 75 F. App’x 795, 798
(1st Cir. Sept. 26, 2003) (affirming dismissal of Bivens
malicious prosecution claim against FBI agent because “[t]he

11

existence of absolute prosecutorial immunity is a matter of
function; it depends not on the title or position of the official
involved, but, rather, on the specific conduct in question.”);
Tyler v. Wick, No.14-cv-68-jdp, 2015 WL 1486506, *11 (W.D. Wis.
Mar. 31, 2015) (holding that probation officer was “entitled to
absolute prosecutorial immunity” for recommendation that
plaintiff’s probation be revoked).

As the Joseph court

explained, in determining whether prosecutorial immunity applies,
courts should use “a functional approach that examines the nature
of the function the defendant performed, not the identity of the
actor who performed it.”

Joseph, 211 F. App’x at 697 (internal

citations and quotations omitted).
Based on the foregoing, that Brodnik recommended
prosecution, without more, is subject to absolute immunity from
liability.

See Goldstein v. Moatz, 364 F.3d 205, 216-17 (4th

Cir. 2004) (“The function of recommending prosecution is
protected by absolute immunity because it requires the exercise
of discretion.”).

12

c.

Malicious Prosecution under Bivens2

Even if the mere recommendation to prosecute is not
absolutely immune under the doctrine of prosecutorial immunity,
to the extent that plaintiff argues that Lanham’s recommendation
to prosecute gives rise to a malicious prosecution claim under
Bivens, he has failed to state a claim on which relief can be
granted.

Of constitutional malicious prosecution claims, our

appeals court has stated:
A “malicious prosecution claim under § 19833 is
properly understood as a Fourth Amendment claim
for unreasonable seizure which incorporates
certain elements of the common law tort.” Lambert
v. Williams, 223 F.3d 257, 261 (4th Cir. 2000).
To state such a claim, a plaintiff must allege
that the defendant (1) caused (2) a seizure of the
plaintiff pursuant to legal process unsupported by
probable cause, and (3) criminal proceedings
terminated in plaintiff's favor. See Durham v.
Horner, 690 F.3d 183, 188 (4th Cir. 2012).
For purposes of this appeal, the officers do not
contend that the Evans plaintiffs have failed to
allege illegal seizures (i.e., the indictments) or

2

Whether there is a federal constitutional right to be free
from malicious prosecution is not settled. See Snider v. Seung
Lee, 584 F.3d 193, 199 (4th Cir. 2009) (“[I]t is not entirely
clear whether the Constitution recognizes a separate
constitutional right to be free from malicious prosecution. . .
.”).
3

Because a Bivens “action is similar to a § 1983 action
against state officials, courts frequently rely on case law from
§ 1983 actions in resolving claims under Bivens.” Nezirovic v.
Heaphy, No. 7:15CV00170, 2015 WL 4112162, * (W.D. Va. Jul. 8,
2015); see also Wilson v. Layne, 526 U.S. 603, 609 (1999)
(“Although this case involves suits under both § 1983 and Bivens,
the qualified immunity analysis is identical under either cause
of action.”).
13

that criminal proceedings failed to terminate in
the plaintiffs' favor (i.e., the dismissal of the
indictments). The officers do maintain, however,
that they escape liability for the assertedly
illegal seizures because they did not cause them.
Rather, they contend, an independent intervening
act of another—i.e., Prosecutor Nifong's decisions
to seek the indictments—caused the seizures.
Of course, constitutional torts, like their common
law brethren, require a demonstration of both
but-for and proximate causation. See Murray v.
Earle, 405 F.3d 278, 289–90 (5th Cir. 2005);
Townes v. City of New York, 176 F.3d 138, 146 (2d
Cir. 1999). Accordingly, subsequent acts of
independent decision-makers (e.g., prosecutors,
grand juries, and judges) may constitute
intervening superseding causes that break the
causal chain between a defendant-officer's
misconduct and a plaintiff's unlawful seizure.
See Zahrey v. Coffey, 221 F.3d 342, 351 (2d Cir.
2000). Such “intervening acts of other
participants in the criminal justice system”
insulate a police officer from liability. Id.;
see also Cuadra v. Hous. Indep. Sch. Dist., 626
F.3d 808, 813 (5th Cir. 2010), cert. denied, –––
U.S. ––––, 131 S. Ct. 2972, 180 L. Ed.2d 247
(2011); Wray v. City of New York, 490 F.3d 189,
195 (2d Cir. 2007); Barts v. Joyner, 865 F.2d
1187, 1195 (11th Cir. 1989); Smiddy v. Varney, 665
F.2d 261, 266–68 (9th Cir. 1981), overruled on
other grounds by Beck v. City of Upland, 527 F.3d
853, 865 (9th Cir. 2008); Rhodes v. Smithers, 939
F.Supp. 1256, 1274 (S.D.W. Va. 1995), aff'd, No.
95–2837, 1996 WL 420471 (4th Cir. July 29, 1996)
(unpublished).
However, even when, as here, a prosecutor retains
all discretion to seek an indictment, police
officers may be held to have caused the seizure
and remain liable to a wrongfully indicted
defendant under certain circumstances. In
particular, officers may be liable when they have
lied to or misled the prosecutor, see, e.g., Sykes
v. Anderson, 625 F.3d 294, 317 (6th Cir. 2010);
Jones v. City of Chicago, 856 F.2d 985, 993 (7th
Cir. 1988); Borunda v. Richmond, 885 F.2d 1384,
1390 (9th Cir. 1988); failed to disclose
14

exculpatory evidence to the prosecutor, see, e.g.,
Dominguez v. Hendley, 545 F.3d 585, 590 (7th Cir.
2008); Sanders v. English, 950 F.2d 1152, 1159–60
(5th Cir. 1992); or unduly pressured the
prosecutor to seek the indictment, cf. Beck, 527
F.3d at 870.
Stated differently, a police officer is not liable
for a plaintiff's unlawful seizure following
indictment “in the absence of evidence that [the
officer] misled or pressured the prosecution.”
Wray, 490 F.3d at 195; see also Snider v. Lee, 584
F.3d 193, 206 (4th Cir. 2009) (Stamp, J.,
concurring) (“A law enforcement officer who
presents all relevant probable cause evidence to a
prosecutor . . . is insulated from a malicious
prosecution claim where such intermediary makes an
independent decision . . . unless the officer [1]
concealed or misrepresented facts or [2] brought
such undue pressure to bear on the intermediary
that the intermediary's independent judgment was
overborne.”); Hand v. Gary, 838 F.2d 1420, 1428
(5th Cir. 1988) (“An independent intermediary
breaks the chain of causation unless it can be
shown that the deliberations of that intermediary
were in some way tainted by the actions of the
defendant.”).
Evans v. Chalmers, 703 F.3d 636, 647-48 (4th Cir. 2012).
Brodnik does not allege that Lanham misled or misinformed
the prosecutor.

Nor does he allege that Lanham failed to

disclose exculpatory evidence to the prosecutor or that he unduly
pressured the prosecutor to seek the indictment.

Accordingly,

Brodnik’s Bivens malicious prosecution claim is subject to
dismissal.4

See id. at 649 (“Because the Evans plaintiffs do not

4

Our appeals court has made clear that a constitutional
malicious prosecution claim is grounded in the Fourth Amendment.
See Lambert v. Williams, 223 F.3d 257, (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
15

allege that Officers Gottlieb and Himan either misled or
pressured Nifong to seek their indictments, we reverse the
district court’s denial of the officers’ motions to dismiss the
Evans plaintiffs’ § 1983 malicious prosecution claims against
them.”).
d.

Qualified Immunity

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 reasonable person would have

claim founded on a Fourth Amendment seizure that incorporates
elements of the analogous common law tort of malicious
prosecution. . . .”); see also Evans v. Chalmers, 703 F.3d 636,
647 (4th Cir. 2012) (“A malicious prosecution claim under § 1983
is properly understood as a Fourth Amendment claim for
unreasonable seizure which incorporates certain elements of the
common law tort.”) (internal citations and quotations omitted).
Therefore, to the extent that plaintiff’s complaint alleges a
constitutional malicious prosecution claim under the Fifth and
Fourteenth Amendments, those claims are dismissed. See Safar v.
Tingle, Case No. 1:15-cv-467 and 469, 2016 WL 1367165, *6 (E.D.
Va. Apr. 4, 2016) (“Inasmuch as plaintiffs’ § 1983 claims against
Officer Rodriguez are premised on the Fourteenth Amendment’s due
process clause – whether procedural or substantive due process –
the claims must be dismissed because as the Supreme Court has
made clear, allegations of false arrest, false imprisonment,
malicious prosecution and unlawful seizure are all governed not
by the procedural and due process components of the Fourteenth
Amendment, but by the Fourth Amendment (incorporated in the
Fourteenth Amendment).”).
16

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

17

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
18

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)).
A fair reading of 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.
19

Carter, 525 U.S. 83, 88 (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

20

(6th Cir. 2010) (extending Fourth Amendment protection to the
contents of email communications).
Absent any compelling reason to suggest otherwise, the
court holds 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
2003 or later, that he needed a warrant to obtain Brodnik’s
emails.

Lanham contends, however, that there is no Fourth

Amendment violation because Beck provided the emails to him and
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.”

Jacobsen, 466 U.S. at 114

(quoting Walter v. United States, 447 U.S. 649, 662 (1980)).
Lanham’s statement of the law is correct – the Fourth
Amendment proscribes only government action.

However,

plaintiff’s allegations with respect to the seizure of his emails
suggest that the seizure amounted to government action.
Specifically, he alleges:
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
21

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, as the court must for purposes
of this motion, the court finds 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.

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).
According to the complaint, in seizing the emails, Beck
was encouraged to do so by Lanham and, therefore, could be
considered an agent of 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 Crawford-El.”).
Delph v. Trent, 86 F. Supp.2d 572, 577 (E.D. Va. 2000).

23

Given the foregoing, Lanham’s motion to dismiss the
Bivens claim against him is denied without prejudice.

Once

limited discovery is complete, he may file a motion for summary
judgment as to the qualified immunity defense.

B.

Beck’s Motion to Dismiss
1.

Bivens Claim

For the reasons discussed above, Beck’s motion to dismiss
the Bivens claim is denied pending discovery into whether Beck
was an agent of the government.

With respect to her argument

that Brodnik had no legitimate expectation of privacy in his
emails because he had given her his password, that argument may
be renewed once the limited discovery discussed above is
complete.
2.

Invasion of Privacy

West Virginia recognizes the common law claim of invasion
of privacy and it includes the “unreasonable intrusion upon the
seclusion of another.”

Crump v. Beckley Newspapers, Inc., 320

S.E.2d 70, 85 (W. Va. 1984).

“Unreasonable intrusion upon

another’s seclusion occurs when `[o]ne . . . intentionally
intrudes, physically or otherwise, upon the solitude or seclusion
of another or his private affairs or concerns. . . . if the
intrusion would be highly offensive to a reasonable person’”
Harbolt v. Steel of West Virginia, Inc., 640 F. Supp.2d 803, 817

24

(S.D.W. Va. 2009) (Chambers, J.) (quoting Restatement (Second) of
Torts § 652B).
Beck argues that she cannot be liable for invasion of
privacy based on her disclosure of plaintiff’s email because she
had Brodnik’s password.

However, even if this is true, this fact

appears nowhere on the face of the complaint.

At this stage of

the proceedings, the court is permitted to consider only the
allegations in the complaint, as well as the reasonable
inferences to be drawn therefrom.

Plaintiff alleges that:

17.

Defendant Beck testified that she illegally
accessed 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.

Complaint ¶¶ 17 and 18.

Several jurisdictions “have found the

intentional interception of another’s email to be sufficiently
offensive to sustain a claim” for invasion of privacy.

Stirling

Intern. Realty, Inc. v. Soderstrom, No: 6:14-cv-1109-Orl-40TBS,
2015 WL 403318 *6 (M.D. Fla. Jan. 28, 2015).
For example, in Lazette v. Kulmatycki, 949 F.
Supp.2d 748, 760 (N.D. Ohio 2013), the court found
that an employer's unauthorized access of its
employee's personal emails was sufficient to
allege a highly offensive intrusion. See also,
e.g., Powell v. Yellow Book USA, Inc., 445 F.3d
1074, 1080 (8th Cir. 2006) (speculating that
reading someone's email without permission would
be enough to state a claim for intrusion);
Coalition for an Airline Passengers' Bill of
Rights v. Delta Air Lines, Inc., 693 F. Supp.2d
667, 675 (S.D. Tex. 2010) (finding that stealing
25

another's personal correspondence from his
computer is offensive enough to constitute
intrusion); cf. Brown–Criscuolo v. Wolfe, 601 F.
Supp.2d 441, 455 (D. Conn. 2009) (holding that
unauthorized access of email is sufficient to
allege outrageous conduct for an intentional
infliction of emotional distress claim). Using
similar principles, courts likewise find that the
unauthorized reading of another's physical mail is
sufficiently offensive to maintain an action for
intrusion. E.g., Vernars v. Young, 539 F.2d 966,
969 (3d Cir. 1976); Shows v. Morgan, 40 F. Supp.2d
1345, 1362–63 (M.D. Ala. 1999).
Id.
Based on the foregoing, plaintiff has stated a claim for
invasion of privacy against Beck and her motion to dismiss must
be denied.
3.

Civil Conspiracy

“A civil conspiracy is a combination of two or more
persons by concerted action to accomplish an unlawful purpose or
to accomplish some purpose, not in itself unlawful, by unlawful
means.

The cause of action is not created by the conspiracy but

by the wrongful acts done by the defendants to the injury of the
plaintiff.”

O’Dell v. Stegall, 703 S.E.2d 561, 595 (W. Va. 2010)

A civil conspiracy is not a per se, stand-alone
cause of action; it is instead a legal doctrine
under which liability for a tort may be imposed on
people who did not actually commit a tort
themselves but who shared a common plan for its
commission with the actual perpetrator(s).
Id. at 595-96 (holding there was insufficient evidence to support
jury’s verdict on civil conspiracy claim where there was

26

insufficient evidence to support underlying torts or wrongs
alleged by the plaintiff).
Plaintiff’s state law civil conspiracy claim is somewhat
unclear.

For example, he contends that defendants conspired to

violate his constitutional rights.

However, such allegations do

not state a claim for civil conspiracy under state law.

Rather,

they are just another way of stating a federal civil rights
conspiracy claim.

However, in his brief, plaintiff contends that

defendants conspired to invade his privacy.

Given that the court

has already determined that plaintiff has stated a claim for
invasion of privacy, he has also stated a claim for conspiracy to
invade his privacy.

Therefore, Beck’s motion to dismiss this

claim is likewise denied.
4. Intentional Infliction of Emotional Distress/Outrage
In order for a plaintiff to prevail on a claim for
intentional infliction of emotional distress, four elements must
be established:
(1) that the defendant’s conduct was atrocious,
intolerable, and so extreme and outrageous as to
exceed the bounds of decency; (2) that the
defendant acted with the intent to inflict
emotional distress, or acted recklessly when it
was certain or substantially certain emotional
distress would result from his conduct; (3) that
the actions of the defendant caused the plaintiff
to suffer emotional distress; and (4) that the
emotional distress suffered by the plaintiff was
so severe that no reasonable person could be
expected to endure it.

27

Tomblin v. WCHS-TV8, 2010 WL 324429, *10 (S.D.W. Va. 2010)
(quoting Philyaw v. Eastern Associated Coal Corp., 633 S.E.2d 8,
Syl. pt. 2 (W. Va. 2006)).

Intentional or reckless infliction of

emotional distress is the same thing as the tort of outrage.
Lovell v. State Farm Mutual Ins. Co., 584 S.E.2d 553, 557 n.10
(W. Va. 2003); see also Travis v. Alcon Laboratories, 504 S.E.2d
419, 424 (W. Va. 1998) (“Intentional or reckless infliction of
emotional distress, also called the `tort of outrage,’ is
recognized in West Virginia as a separate cause of action.”).
“[T]rial courts should first examine the proof presented
by the plaintiff to determine if the defendant's conduct may
legally be considered “extreme and outrageous.”

O’Dell v.

Stegall, 703 S.E.2d 561, 594 (W. Va. 2010).
In evaluating a defendant's conduct in an
intentional or reckless infliction of emotional
distress claim, the role of the trial court is to
first determine whether the defendant's conduct
may reasonably be regarded as so extreme and
outrageous as to constitute the intentional or
reckless infliction of emotional distress.
Whether conduct may reasonably be considered
outrageous is a legal question, and whether
conduct is in fact outrageous is a question for
jury determination.
Id.
According to the Second Amended Complaint:
17.

Defendant Beck testified that she illegally
accessed plaintiff Brodnik’s electronic mail.

18.

Defendant Beck testified that she produced print
outs of messages she obtained when she illegally

28

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.

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. . . .

65.

Plaintiff Brodnik suffered sever emotional
distress, pain and suffering, mental anguish, and
loss of ability to enjoy life as a direct and
proximate cause of defendants’ conduct in
prosecuting plaintiff Brodnik.

Complaint ¶¶ 17-19, 35, and 65.

Taking the foregoing as true,

plaintiff has stated a claim for intentional infliction of
emotional distress against Beck.
5.

Malicious Prosecution

In an action for malicious prosecution, plaintiff
must show: (1) that the prosecution was set on
foot and conducted to its termination, resulting
in plaintiff’s discharge; (2) that it was caused
or procured by defendant; (3) that it was without
probable cause; and (4) that it was malicious. If
a plaintiff fails to prove any of these, he cannot
recover.
Norfolk Southern Railway Co. v. Higginbotham, 721 S.E. 2d 541.
545-546 (W. Va. 2011) (internal citations and quotations
omitted).

Specifically, Beck contends that plaintiff cannot

prove the third element – i.e., that the prosecution was without

29

probable cause – because the grand jury returned three
indictments.
The West Virginia Supreme Court of Appeals, relying on
federal authorities, has held that in a retaliatory prosecution
case that “a grand jury indictment is prima facie evidence of
probable cause for the underlying criminal prosecution, and a
plaintiff may rebut this evidence by showing that the indictment
was procured by fraud, perjury, or falsified evidence.”

Jarvis

v. West Virginia State Police, 711 S.E. 2d 542, 550 (W. Va.
2010).

West Virginia’s highest court has further instructed:
Probable cause for instituting a prosecution is
such a state of facts and circumstances known to
the prosecutor personally or by information from
others as would in the judgment of the court lead
a man of ordinary caution, acting conscientiously,
in the light of such facts and circumstances, to
believe that the person charged is guilty. . . .
The question of probable cause or the absence of
it is in no sense dependent on the guilt or
innocence of accused, but depends on the
prosecutor’s honest belief in such guilt based on
reasonable grounds. . . .
On the question of
probable cause, the facts, circumstances,
knowledge and information must be viewed from the
standpoint of the defendant, rather than from the
standpoint of the plaintiff.

Truman v. Fidelity & Casualty Co. of New York, 123 S.E. 2d 59, 69
(W. Va. 1961) (internal citations and quotations omitted).

“In

civil malicious prosecution actions, the issues of malice and
probable cause become questions of law for the court where there
is no conflict of evidence or where there is only one inference

30

to be drawn by reasonable minds.”

Morton v. Chesapeake and Ohio

Railway Co., 399 S.E. 2d 464, 467 (W. Va. 1990).
At this juncture, Beck’s motion to dismiss the malicious
prosecution claim must be denied.

Although the fact of an

indictment is certainly compelling evidence that plaintiff will
not be able to meet his burden of showing a lack of probable
cause, he should be given the chance to rebut the presumption.
Accordingly, Beck’s motion to dismiss Count VII is denied.
III.

Conclusion

For the reasons expressed above, the court ORDERS as
follows:
1)

Lanham’s Motion to Dismiss Count I pursuant to
FTCA judgment bar (ECF No. 78) is DENIED;

2)

Lanham’s Motion to Dismiss Count I (ECF No. 70) is
GRANTED in part and DENIED in part;

3)

Beck’s Amended Motion to Dismiss (ECF No. 68) is
DENIED and her motion to dismiss (ECF No. 66) is
DENIED as moot; and

4)

The court will enter a separate Order regarding
discovery as discussed herein.

The Clerk is directed to send a copy of this Memorandum Opinion
and Order to counsel of record.

31

IT IS SO ORDERED this 1st day of August, 2016.
ENTER:

David A. Faber
Senior United States District Judge

32