United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge.
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.
is GRANTED and plaintiff's motion (ECF
No. 101) is DENIED.
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.
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.
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. In his complaint, Brodnik alleged as
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.
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 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).
ECF No. 83.
parties engaged in limited discovery on the email issue and
the instant motions followed.
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
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).
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.
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
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
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.
Saucier v. Katz, 533 U.S. 194, 195 (2002).
"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.
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).
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)).
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 (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).
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 (6th Cir. 2010) (extending Fourth Amendment
protection to the contents of email communications).
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
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__
”).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 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
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.
Q: Okay. In fact, you directed her not to access
Brodnik's e-mail account.
Q: And you did that at your first meeting on March 20, 2002,
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
Q: Okay. Was that a general statement you would make to a
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.
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. Showed you what?
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.
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 logging into, apparently, Doctor Brodnik's
Q: You say you now know. You knew at the time of the trial,
the criminal trial, didn't you?
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
I did not know what she was doing. I didn't know if it
was a file on her computer. I did not know until I asked her,
“What is this? Where did 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 ...