Keesee v. Johnson

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

ZACHERY SCOTT KEESEE PLAINTIFF

ADC #175621

v. CASE NO. 4:22-CV-00002-BSM

ANDREW JOHNSON, et al. DEFENDANTS

ORDER

Travis Eddleman’s motion to dismiss [Doc. No. 154] is granted and Zachery Keesee’s

claims against him are dismissed with prejudice. Eddleman’s motion to reconsider the order

denying his motion to stay discovery [Doc. No. 164] is denied as moot.

I. BACKGROUND

Keesee, an inmate serving a life sentence in Arkansas state prison for a capital murder

conviction, has brought a variety of claims against Eddleman, a former law enforcement

officer. These claims arise from Eddleman’s role in obtaining a series of court orders

permitting access to cellular and electronic data that facilitated the apprehension of Keesee,

who was then suspected of the murder. Keesee’s claims fall into two categories: statutory

claims and constitutional claims under section 1983. A hearing was held on October 4, 2023

to determine two threshold matters: (1) Eddleman’s status as a federal actor and (2) the

authenticity of a court order submitted by Eddleman.

1

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when the plaintiff fails to

state a claim upon which relief may be granted. To meet the 12(b)(6) standard, the facts

alleged in the complaint must create a “reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although detailed

factual allegations are not required, threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, are insufficient. Id. In ruling on a 12(b)(6) motion

to dismiss, materials embraced by the pleadings, as well as exhibits attached to the pleadings

and matters of public record may all be considered. Zean v. Fairview Health Servs., 858 F.3d

520, 526 (8th Cir. 2017).

III. DISCUSSION

The motion to dismiss is granted with respect to Keesee’s claims under 18 United

States Code sections 2520 and 2707 because Eddleman has established the good faith defense

in those statutes. The motion to dismiss is granted with respect to Keesee’s section 1983

claim because the conduct alleged to violate Keesee’s constitutional rights occurred while

Eddleman acted as a federal official.

A. Statutory Claims

Keesee has alleged violations of two federal statutes that contain private rights of

action against violators: 18 U.S.C. § 2510 et seq. (the “Wiretap Act”) and 18 U.S.C. § 2701

2

et seq. (the “Stored Communications Act”). See 18 U.S.C. § 2520(a); 18 U.S.C. § 2707(a).

The Wiretap Act prohibits the intentional interception or attempt to intercept “any wire, oral,

or electronic communication,” as well as knowingly disclosing or attempting to disclose the

contents of the same to any other person. 18 U.S.C. § 2511(1)(a), (c). The Stored

Communications Act prohibits “intentionally access[ing] without authorization a facility

through which an electronic communication service is provided” and “intentionally

exceed[ing] an authorization to access that facility.” 18 U.S.C. § 2701(a)(1), (2). Keesee

alleges that Eddleman violated both the Wiretap Act and the Stored Communications Act by

“intercepting and disclosing [his] communications” and “unlawfully obtaining [his] stored

communications,” respectively, without court orders authorizing him to do so. Sec. Am.

Compl. 64-65, 67-68, Doc. No. 49. Although Keesee’s statutory claims arise from the

investigation leading to his conviction, the Eighth Circuit has allowed a convicted prisoner

to seek money damages from a violation of the Wiretap Act under these circumstances. See

Morford v. City of Omaha, 98 F.3d 398, 400-01 (8th Cir. 1996). Keesee has plausibly

alleged violations of the Wiretap Act and the Stored Communications Act.

Eddleman asserts that he is entitled to qualified immunity and the good faith defense

in sections 2520 and 2707. Officials are protected by qualified immunity unless “(1) the

facts alleged, taken in the light most favorable to the plaintiff, show the officer's conduct

violated a constitutional or statutory right; and (2) that right was clearly established at the

time of the purported misconduct.” Perry v. Woodruff Cnty. Sheriff Dep’t ex rel Barker, 858

3

F.3d 1141, 1144-45 (8th Cir. 2017). Additionally, under sections 2520 and 2707, “[a] good

faith reliance on . . . a court warrant or order . . . is a complete defense against any civil or

criminal action brought under this chapter or any other law.” 18 U.S.C. § 2520(d); 18 U.S.C.

§ 2707(e).

Eddleman maintains that he had valid court orders authorizing his electronic

surveillance of Keesee and intercepted and disclosed Keesee's cellular data in good faith

reliance upon them. Keesee has submitted several such orders as exhibits to his own filings.

See Compl. Ex. 3 at 22-28, Doc. No. 1-3. The only order whose authenticity is disputed is

one submitted by Eddleman in support of his motion to dismiss that purports to be a signed

order of the Little Rock District Court authorizing the disclosure of location data from

Keesee’s cell phone (the “Keesee Phone Order”). Def.’s Br. Supp. Mot. Dismiss Ex. A, Doc.

No. 55-1, Def.’s Hearing Ex. 1, Doc. No. 177. Keesee submitted an affidavit from the chief

court clerk of the Little Rock District Court criminal division stating that the court did not

have in its possession the affidavit/application, search warrant or retum/inventory pertaining

to the Keesee Phone Order. Aff. of Tiffany Keene, Doc. No. 178. Former Little Rock

District Court Judge Hugh Finkelstein explained in the October 4 hearing that he received

and reviewed applications for electronic surveillance on an iPad provided by the Little Rock

Police Department that only he had access to, accounting for the absence of documentation

in ordinary court records. Judge Finkelstein authenticated the Keesee Phone Order by

testifying that he had issued it and that his signature on it was genuine.

4

The Keesee Phone Order may be considered without converting Eddleman’s motion

to dismiss into a summary judgment motion because “matters incorporated by reference or

integral to the claim, items subject to judicial notice, matters of public record, [and] orders”

may be considered at the motion to dismiss stage. Miller v. Redwood Toxicology Lab, Inc.,

688 F.3d 928, 931 n.3 (8th Cir. 2012) (quoting 5B Wright & Miller, Federal Practice &

Procedure § 1357 (3d ed. 2004)). The Keesee Phone Order was signed and dated by a judge

and is integral to Keesee’s statutory claims because those claims hinge on Eddleman’s

interception of and disclosure of Keesee’s cellular data, which was the object of the order.

The good faith exception in Sections 2520 and 2707 applies because Eddleman

provided applications and affidavits to the Little Rock District Court for review, the court

signed the Keesee Phone Order, and Eddleman intercepted and disclosed Keesee’s cellular

data in reliance upon that order. Def.’s Br. Supp. Mot. Dismiss 3, Doc. No. 155; Keesee

Phone Order, pp. 1, 7, Doc. No. 55-1. Keesee’s unsupported assertion that Eddleman sought

the order through judicial deception does not alter this analysis. See United States v.

Degaule, 797 F. Supp. 2d 1332, 1363 n.26 (N.D. Ga. 2011) (rejecting conclusory argument

that agent who obtained wiretap orders misled the issuing judges). Eddleman is also entitled

to qualified immunity because his acts were authorized by a court order and thus did not

violate Keesee’s clearly established statutory rights. Finally, the sworn testimony at the

hearing does not support Keesee’s assertion that Eddleman obtained Keesee’s records by

deceiving the judge. Keesee’s claims against Eddleman under 18 U.S.C. § 2520(a) and 18

5

U.S.C. § 2707(a) are therefore dismissed with prejudice.

B. 42 U.S.C. § 1983 Claim

Keesee has also brought a claim under section 1983 alleging that Eddleman violated

his Fourth Amendment right to be free from unreasonable search and seizure. A threshold

inquiry for a section 1983 claim is whether Eddleman acted under color of state law. See

Magee v. Trs. of Hamline Univ., Minn., 747 F.3d 532, 535 (8th Cir. 2014). Section 1983

claims are not available against “persons acting under color of federal law.” Yassin v.

Weyker, 39 F.4th 1086, 1089 (8th Cir. 2022), cert. denied, 143 S. Ct. 779 (2023). State or

local law enforcement officials who have been deputized by a federal agency to participate

in a task force are considered federal actors for purposes of section 1983 claims arising from

their participation in the task force. See Askar v. Hennepin Cnty., 600 F. Supp. 3d 948, 953-

55 (D. Minn. 2022) (citing cases).

At the time that Eddleman obtained the orders to access Keesee’s cellular and

electronic data, he was employed by the Arkansas State Police and deputized as a Special

Deputy U.S. Marshal as part of the U.S. Marshal’s Service Eastern Arkansas Fugitive Task

Force (the “USMS Task Force”). Def.’s Hearing Ex. 2, Doc. No. 177. Keesee argues that

Eddleman obtained the orders while acting as a state police officer, pointing to the fact that

Eddleman’s signature on the applications to obtain the orders in question identifies him as

a state police officer. Pl.’s Resp. Mot. Dismiss 3, 9-10, Doc. No. 161. In the October 4

hearing, however, Eddleman testified that he obtained the orders exclusively pursuant to his

6

duties as a Special Deputy U.S. Marshal, which consisted of locating and apprehending

fugitives, and that state police had no involvement in obtaining the orders.

Extensive documentation Keesee himself submitted with prior filings confirms

Eddleman’s testimony. An exhibit submitted by Keesee in response to the motion to dismiss

shows that Eddleman was part of the USMS Task Force at all relevant times. See Pl.’s Resp.

Mot. Dismiss Ex. 1 at 22-23, 25, Doc. No. 161-1. An exhibit to Keesee’s original complaint

states that Eddleman’s interceptions and disclosures of cellular data were pursuant to an

“ongoing criminal investigation being conducted by the United States Marshals Service

Eastern District of Arkansas Fugitive Task Force.” Compl. 22-46, Doc. No. 1-3. A number

of other exhibits provided by Keesee contain similar language. Pl.’s Reply Ans. Am. Compl.

54-78, 99-123, 124-148, Doc. No. 25; see also Def.’s Br. Supp. Mot. Dismiss Ex. A.

Further, the U.S. Attorney’s Office is representing Eddleman because it states he was acting

as a Special Deputy U.S. Marshal. See Def.’s Hearing Ex. 3, Doc. No. 177; Doc. No. 125.

This testimony and documentation may be considered without converting Eddleman’s motion

to dismiss into a motion for summary judgment because they are items appearing in the

record of this case whose authenticity is not subject to dispute. See Miller, 688 F.3d at 931.

Keesee cannot bring a section 1983 action against Eddleman because Eddleman was

a deputized member of the USMS Task Force and his actions were taken in that capacity.

To sue a federal official for money damages for violating a constitutional right, plaintiffs are

limited to the remedy created by Bivens v. Six Unknown Agents of Federal Bureau of

7

Narcotics, 403 U.S. 388 (1971). Keesee, however, has not asserted a Bivens claim against

Eddleman. Pl.’s Resp. Mot. Dismiss 1.

Even if Keesee were to bring a Bivens claim against Eddleman, it would be dismissed

because the facts presented herein are beyond the context of the facts in Bivens and the two

other Bivens precedents. See Egbert v. Boule, 142 S. Ct. 1793, 1800 (2022) (holding that it

is “clear” that a Bivens remedy should not be extended except in “the most unusual

circumstances”); Farah v. Weyker, 926 F.3d 492, 500 (8th Cir. 2019) (declining to extend

Bivens to claim against federally deputized officials because of differences in “the sorts of

actions being challenged, the mechanism of injury, and the kinds of proof those injuries

would require”).

IV. CONCLUSION

For these reasons, Eddleman’s motion to dismiss is granted and Keesee’s claims

against him are dismissed with prejudice.

IT IS SO ORDERED this 25th day of October, 2023.

Barer 2

UNITED STATES DISTRICT JUDGE