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Brodnik v. Lanham

United States District Court, S.D. West Virginia, Bluefield

March 30, 2018

RANDY MICHAEL BRODNIK, D.O., Plaintiff,
v.
ROBERT LANHAM, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge.

         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. (“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:

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 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.

         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 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 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. 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. 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 (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 (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 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?
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. 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 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 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 ...

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