The opinion
1
2
3
4
5 UNITED STATES DISTRICT COURT
6 EASTERN DISTRICT OF CALIFORNIA
7
8 TIMOTHY LARIOS, No. 2:15-cv-02451-JAM-DMC
9 Plaintiff,
10 v. ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
11 SCOTT LUNARDI and ROBERT J.
JONES,
12
Defendants.
13
14 In October 2019, Scott Lunardi, Kyle Foster, and Robert
15 Jones filed a motion for summary judgment. Mot. for Summ. J.
16 (“Mot.”), ECF No. 42. With one exception, the Court granted
17 judgment in favor of Defendants on each of Plaintiff’s claims.
18 Order Granting in Part Defs.’ Mot. for Summ. J., ECF No. 55. The
19 Court deferred ruling on Defendants’ challenge to Plaintiff’s
20 claim that Lunardi and Jones partook in an unlawful seizure when
21 they allowed CHP investigator Curtis Duray to download the
22 contents of Plaintiff’s personal phone onto a CHP computer.
23 Order at 2-3. The Court granted Plaintiff leave to file a
24 surreply so he could respond to arguments Defendants raised for
25 the first time in their reply brief on this issue. Order at 22-
26 23; see also Plf’s. Surreply, ECF No. 56.
27 For the reasons set forth below, the Court finds Jones was
28 not an integral participant in Duray’s seizure. Consequently,
1 the Court finds that he can not be held liable for Duray’s
2 conduct under Section 1983. Lunardi was, however, an integral
3 participant in this seizure—a seizure that violated Plaintiff’s
4 Fourth Amendment rights. But because the right was not clearly
5 established when the seizure occurred, Lunardi is entitled to
6 qualified immunity. The Court grants Defendants’ motion for
7 summary judgment on Plaintiff’s unlawful seizure claim against
8 both Lunardi and Jones.
9 I. BACKGROUND
10 The Court refers the parties to its previous order, ECF No.
11 55, where it set forth this case’s procedural history and
12 relevant undisputed facts. See also Larios v. Lunardi, No. 2:15-
13 cv-02451-JAM-DMC, 2020 WL 1062049, at *1-3 (E.D. Cal. March 5,
14 2020).
15 II. OPINION
16 A. Analysis
17 Section 1983 of the Civil Rights Act creates a private
18 right of action against any person who, under the color of state
19 law, deprives another “of any rights, privileges, or immunities
20 secured by the Constitution and laws” of the United States. 42
21 U.S.C. § 1983. Qualified immunity, however, shields state
22 officials from liability under this provision unless the
23 official’s conduct violated a constitutional or statutory right
24 that was “clearly established” when the conduct occurred.
25 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This standard
26 requires courts to determine whether the official’s conduct
27 violated a federal right and whether that right was clearly
28 established at the time the officer’s conduct occurred. Pearson
1 v. Callahan, 555 U.S. 223, 243-44 (2009). Only when the answer
2 to both questions is ‘yes’ may a plaintiff sue a state official
3 under section 1983. Id.
4 1. Constitutional Violation
5 Plaintiff’s remaining claim contends Lunardi and Jones
6 participated in an unconstitutionally overbroad seizure when
7 their colleague, Curtis Duray, created a backup of Plaintiff’s
8 personal cell phone on a CHP computer. Sec. Am. Compl. (“SAC”)
9 ¶ 33(a). The Fourth Amendment, incorporated against the states
10 by the Fourteenth Amendment, “proscribes unreasonable searches
11 and seizures.” Florida v. Bostick, 501 U.S. 429, 440 (1991).
12 Within the Fourth Amendment context, a seizure is any
13 “meaningful interference with an individual’s possessory
14 interests in [his] property.” Brewster v. Beck, 859 F.3d 1194,
15 1196 (9th Cir. 2017).
16 When the Court adjudicated Plaintiff’s unconstitutional
17 search claim, it had to first determine whether Defendants
18 conducted a search at all. Order at 14-18. Here, however,
19 Defendants do not contest whether downloading the contents of
20 Plaintiff’s personal phone onto a workplace computer amounted to
21 a seizure. Rather, they argue that (1) Duray—a CHP investigator
22 not named in Plaintiff’s suit—was the only officer that
23 conducted the seizure and (2) the seizure was reasonable. Reply
24 at 5-6. The Court agrees with Defendants only in part.
25 First, it is true that the undisputed facts show Duray
26 created the backup of Plaintiff’s phone. See RSUF ¶ 118; Duray
27 Decl. ¶¶ 16-17, ECF No. 42-11; Lunardi Decl. ¶ 77, ECF No. 42-5.
28 But this fact, in and of itself, does not necessarily absolve
1 Defendants of liability. Section 1983 does not require that
2 “each officer’s actions themselves rise to the level of a
3 constitutional violation.” Boyd v. Benton County, 374 F.3d 773,
4 780 (9th Cir. 2004). If an officer was “fundamental[ly]
5 involve[d] . . . in the conduct that allegedly caused the
6 violation,” the officer may be liable as an “integral
7 participant.” Blankenhorn v. City of Orange, 485 F.3d 463, 481
8 n.12 (9th Cir. 2007); see also Monteilh v. County of Los
9 Angeles, 820 F. Supp. 2d 1081, 1089-91 (C.D. Cal. 2011).
10 The Court finds Jones was not sufficiently involved in
11 Duray’s seizure of Plaintiff’s data to be liable under the
12 integral participant doctrine. Jones signed the memorandum that
13 directed Plaintiff to provide his cell phone to CHP. RSUF
14 ¶ 110; Jones Decl. ¶ 15, ECF No. 42-9; Ex. 22 to Defs.’ Mot.,
15 ECF No. 43-1. The memo explained that CHP would “conduct a data
16 extraction to retrieve the work product” stored on Plaintiff’s
17 phone. Ex. 22 to Defs.’ Mot. But as explained below, had Duray
18 and Lunardi only extracted the work product discussed in Jones’s
19 memo, the seizure would have fallen within the workplace
20 inspection exception to the Fourth Amendment’s warrant
21 requirement. Plaintiff presents no evidence that Jones intended
22 the investigators’ seizure to extend more broadly than his memo
23 described or that he ever authorized the seizure Duray
24 ultimately conducted. Because Jones was not fundamentally
25 involved in the seizure Plaintiff challenges, the Court cannot
26 hold Jones liable under section 1983. The Court grants
27 Defendants’ motion for summary judgment with respect to
28 Plaintiff’s unconstitutional seizure claim against Jones.
1 Lunardi, on the other hand, was fundamentally involved in
2 the process of seizing data from Plaintiff’s phone. RSUF ¶ 114.
3 He brought Plaintiff’s phone to Duray for the forensic
4 extraction Jones authorized. Id. When the forensic extraction
5 devices did not work, he partook in the deliberative process of
6 deciding upon alternative ways to extract the data. See RSUF
7 ¶¶ 116-17. He helped Duray use a digital camera to record the
8 messages between Plaintiff and Mellow. RSUF ¶ 116; Duray Decl.
9 ¶ 14; Lunardi Decl. ¶ 76. And he tacitly stood by as Duray
10 created a backup of Plaintiff’s phone—even though he knew this
11 seizure exceeded the one Jones authorized. See RSUF ¶ 119;
12 Lunardi Decl. ¶¶ 72, 77. Once Duray completed the backup,
13 Lunardi retrieved the phone without objection. See RSUF ¶ 121;
14 Duray Decl. ¶ 17; Lunardi Decl. ¶ 77. The Court finds this
15 level of involvement is enough to make Lunardi an integral
16 participant in the challenged seizure. Because this seizure was
17 unreasonable, Lunardi partook in the constitutional violation.
18 Warrantless seizures are “per se unreasonable under the
19 Fourth Amendment—subject only to a few specifically established
20 and well-delineated exceptions.” Beck, 859 F.3d at 1196
21 (quoting United States v. Hawkins, 249 F.3d 867, 872 (9th Cir.
22 2001) (internal quotation marks and citation omitted)).
23 Defendants do not argue Duray had a warrant to seize the
24 contents of Plaintiff’s cell phone. Rather they invoke the
25 workplace inspection exception to the Fourth Amendment’s warrant
26 requirement. Reply at 3-4. As its title suggests, the
27 workplace inspection exception pulls certain workplace searches
28 and seizures out from under the Fourth Amendment’s warrant
1 requirement. To trigger this exception, a public employer must
2 conduct the search or seizure for a “noninvestigatory, work-
3 related purpos[e]” or to investigate workplace misconduct. City
4 of Ontario, Cal. v. Quon, 560 U.S. 747, 761-62 (2010); O’Connor
5 v. Ortega, 480 U.S. 709, 725-26 (1987) (plurality opinion).
6 Moreover, the search or seizure must be “justified at its
7 inception” and conducted using measures that are “reasonably
8 related to the objectives of the search and not excessively
9 intrusive.” Quon, 560 U.S. at 761-62. To determine whether the
10 measures an employer takes are “reasonably related” to the scope
11 of the inspection, courts must consider the circumstances that
12 gave rise to the search or seizure. Id.
13 The Court first finds Duray seized the contents of
14 Plaintiff’s cell phone pursuant to a valid investigation of
15 workplace misconduct. As explained in the Court’s previous
16 order, Plaintiff failed to produce any evidence that the
17 investigation was criminal in nature. See Order at 16.
18 Moreover, the Court finds Defendants’ seizure was “justified at
19 its inception.” See Quon, 560 U.S. at 761. The undisputed
20 facts show CHP policy required officers to relinquish on demand
21 any work product they stored on their personal devices. RSUF
22 ¶ 4 (citing CHP General Order 100.95). CHP’s investigation of
23 Plaintiff’s relationship with Tawnya Mellow reasonably gave rise
24 to the belief that Plaintiff communicated with a confidential
25 informant using his personal cell phone. RSUF ¶¶ 103-04. CHP
26 policy considered any such messages to be work product. RSUF
27 ¶ 4. Defendants initially planned to only extract that work
28 product. RSUF 115. A customized data withdrawal would have
1 fallen squarely within the workplace inspection exception. See
2 Quon, 560 U.S. at 761-62 (finding a public employer’s tailored
3 review of an employee’s text messages was reasonable in light of
4 the surrounding circumstances).
5 But Duray ultimately seized more than the work-related text
6 messages. RSUF ¶ 119. Indeed, he seized all the data stored on
7 Plaintiff’s personal cell phone. Id. Defendants urge the Court
8 to find that this seizure, though indiscriminate, was
9 nonetheless reasonably related to the surrounding circumstances.
10 Reply at 4-5. The Court has already acknowledged the
11 circumstances surrounding Plaintiff’s misconduct justified a
12 careful, timely investigation. Order at 4. In an effort to
13 both pursue and conceal his relationship with Mellow, Plaintiff
14 made false reports to law enforcement dispatch; disclosed
15 confidential automated records to Mellow without authorization;
16 revealed confidential information about SINTF operations; lied
17 to his SINTF commander; and coordinated with Mellow to cover up
18 their relationship. RSUF ¶¶ 14-16. Plaintiff’s conduct
19 compromised federal and state criminal investigations. RSUF
20 ¶¶ 12, 23. It also jeopardized safety of Mellow and Plaintiff’s
21 fellow officers. RSUF ¶ 18. CHP Investigators had reason to
22 believe that the information contained in Plaintiff’s text
23 messages with Mellow would help them mitigate harm resulting
24 from Plaintiff’s actions. See, e.g., Jones Decl. ¶ 4-10, ECF
25 No. 42-9.
26 But the workplace inspection exception places limits on
27 what measures an employer may take to gather information related
28 to workplace misconduct—even when that information is really
1 important. The measures must be “reasonably related” to the
2 circumstances that gave rise to the seizure “and not excessively
3 intrusive.” Quon, 560 U.S. at 761-62. Downloading all the cell
4 phone’s data to retrieve a single thread of texts is like
5 watering a plant with a firehose. The means far exceeds the
6 need.
7 This is true notwithstanding Defendants’ argument that the
8 investigators tried other, less intrusive, methods first. See
9 Mot. at 7-8. Lunardi and Duray initially tried to extract
10 Plaintiff’s messages with Mellow directly from the phone—first,
11 using CHP’s forensic tools to extract the data, and then, using
12 a digital camera to manually record the message thread. Mot. at
13 7-8. Neither method proved successful. But the question of
14 whether the measures Defendants used to conduct their seizure
15 were “excessively intrusive” is a question of fit, not a
16 question of how many other methods were tried first. See Quon,
17 560 U.S. 761-63. With Quon’s discussion of intrusiveness in
18 mind, it is hard to imagine how Duray’s seizure here could have
19 been more overbroad. Id. Riley v. California, 573 U.S. 373,
20 (2014), though addressing distinct legal issues, provides a
21 description of cell phones’ storage capacity that helps
22 illuminate the intrusiveness of the seizure in this case:
23 [T]he possible intrusion on privacy is not physically
limited . . . when it comes to cell phones. The
24 current top-selling smart phone has a standard
capacity of 16 gigabytes (and is available with up to
25 64 gigabytes). Sixteen gigabytes translates to
millions of pages of text, thousands of pictures, or
26 hundreds of videos. (citation omitted). . . . The sum
of an individual’s private life can be reconstructed
27 through a thousand photographs labeled with dates,
locations, and descriptions . . . .
28
1 Id. at 394. The volume of data Duray seized was vastly
2 disproportionate to the amount of work product Defendants
3 suspected to find on Plaintiff’s phone. Because this seizure
4 was excessively intrusive in light of the surrounding
5 circumstances, the workplace inspection exception does not
6 apply.
7 Absent a valid exception to the warrant requirement,
8 Duray’s seizure violated Plaintiff’s Fourth Amendment rights.
9 Lunardi was an integral participant in this constitutional
10 violation.
11 2. Clearly Established
12 A law enforcement officer who violates a person’s
13 constitutional rights will still be entitled to qualified
14 immunity if that right was not clearly established at the time
15 the violation occurred. Fitzgerald, 457 U.S. at 818. Courts
16 must define clearly established rights “with specificity,” based
17 upon the facts of each case. City of Escondido v. Emmons, 139 S.
18 Ct. 500, 503 (2019). A right is not clearly established unless
19 its “contours [are] sufficiently definite that any reasonable
20 officer would have understood that he was violating it.” Id.
21 (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)).
22 As Defendants argue, Plaintiff failed to identify any cases
23 that clearly proscribed Duray’s seizure. Reply at 13-14.
24 Plaintiff cites to several cases in support of his argument that
25 Duray’s seizure violated his clearly-established Fourth Amendment
26 rights. Opp’n at 9-13, 27 (citing Riley v. California, 573 U.S.
27 373 (2014); United States v. Comprehensive Drug Testing, 621 F.3d
28 1162 (9th Cir. 2010); United States v. Soriano, 361 F.3d 494 (9th
1 Cir. 2004); United States v. Taketa, 923 F.2d 665, 675 (9th Cir.
2 1991); United States v. Tamura, 694 F.2d 591 (9th Cir. 1983);
3 United States v. Ganias, 755 F.3d 125 (2d Cir. 2014)). Many of
4 these cases touch upon germane issues that, like this case, lie
5 at the intersection of technology and overbroad seizures. But
6 | they do not help define the contours of the workplace inspection
7 exception or how it applies when a public employer extracts work
8 product from an employee’s personal cell phone. For this reason,
9 none of the cases Plaintiff cites placed the CHP investigators on
10 “notice [that] their conduct [was] unlawful.” Hope v. Pelzer,
11 536 U.S. 730, 739 (2002).
12 As Plaintiff’s right to be free from Duray’s overbroad
13 seizure was not clearly established at the time the seizure
14 occurred, Lunardi is entitled to gualified immunity. The Court
15 therefore grants Defendants’ motion for summary judgment on
16 Plaintiff’s unlawful seizure claim against Lunardi.
17 IIl. ORDER
18 For the reasons set forth above, the Court GRANTS
19 Defendants’ motion for summary judgment on Plaintiff’s unlawful
20 seizure claim.
21 IT IS SO ORDERED.
22 Dated: April 9, 2020
23 kA
24 teiren staves odermacr 7008
25
26
27
28
10