Olson v. Grant County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

HALEY OLSON, Case No. 2:20-cv-01342

Plaintiff,

OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR

v.

SUMMARY JUDGMENT, DENYING

PLAINTIFF’S AMENDED MOTION

FOR PARTIAL SUMMARY

GRANT COUNTY, a government entity, JUDGMENT, AND DENYING

GLENN PALMER, an individual, and JIM PLAINTIFF’S MOTIONS FOR

CARPENTER, an individual, ADVERSE INFERENCE

Defendants.

Meredith Holley, Law Office of Meredith Holley, 207 E 5th Avenue, Suite 254, Eugene, OR

97401. Attorney for Plaintiff.

Aaron Hisel and Rebeca A. Plaza, Law Offices of Montoya, Hisel and Associates, 901 Capitol

Street NE, Salem, OR 97301. Attorneys for Defendants Grant County and Glenn Palmer.

Kenneth Crowley and Jill Conbere, Oregon Department of Justice, 1162 Court Street NE, Salem,

OR 97301. Attorneys for Defendant Jim Carpenter.

IMMERGUT, District Judge.

PAGE 1 – OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT, DENYING PLAINTIFF’S AMENDED MOTION FOR PARTIAL

Before this Court are Defendant Jim Carpenter’s Motion for Summary Judgment, ECF

98, Defendants Grant County and Glenn Palmer’s Motion for Summary Judgment, ECF 101, and

Plaintiff Haley Olson’s Amended Motion for Partial Summary Judgment, ECF 117, and Motion

for Adverse Inference, ECF 123. For the following reasons, this Court GRANTS Defendants

Carpenter, Grant County, and Palmer’s Motions for Summary Judgment and DENIES Plaintiff’s

Partial Motion for Summary Judgment and Motion for Adverse Inference.

STANDARDS

Under Federal Rule of Civil Procedure 56, a party is entitled to summary judgment if the

“movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court views the evidence in the light

most favorable to the non-movant and draws all reasonable inferences in the non-movant’s favor.

Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001).

Although “[c]redibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a

motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the

plaintiff’s position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255

(1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted).

BACKGROUND

At all relevant times, Plaintiff Haley Olson was a resident of Grant County, Oregon. ECF

94 at ¶ 4. Defendant Grant County is a county government entity in Oregon. Id. at ¶ 5. At all

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SUMMARY JUDGMENT, DENYING PLAINTIFF’S AMENDED MOTION FOR PARTIAL

relevant times, Defendant Glenn Palmer was employed as the Grant County Sheriff, id. at ¶ 6,

and Defendant Jim Carpenter was employed as the Grant County District Attorney, id. at ¶ 7.

In January 2019, Plaintiff was arrested in Idaho on marijuana-related drug trafficking

charges. Id. at ¶ 8; ECF 102-2 at 2–3. Plaintiff signed a Voluntary Consent to Search form

allowing the Idaho State Police to search her mobile phone. ECF 100-2, Ex. 8, at 1. The Idaho

State Police searched Plaintiff’s cell phone by downloading an extraction of the contents of her

phone. ECF 94 at ¶ 8.

On or about January 23, 2019, Defendant Palmer received information that a person from

Grant County was arrested in Jerome County, Idaho, and that a business card of Grant County

Deputy Tyler Smith was found in the arrestee’s vehicle. ECF 100-3, Ex. 9, at 1.1 Although

Defendant Palmer did not believe that either Plaintiff Olson or Deputy Smith had committed a

crime in Oregon, he was concerned that Deputy Smith was involved with someone arrested on

drug charges and decided to investigate. ECF 104-3 at 8, 10. Defendant Palmer spoke with an

Idaho trooper, who was “very reluctant” to discuss Plaintiff’s arrest and was unwilling to share

Plaintiff’s cell phone extraction. Id. at 6–7. Defendant Palmer then asked Defendant Carpenter to

request Plaintiff’s cell phone data from the Jerome County prosecutor. Id. at 9; ECF 102-4 at 14,

17.

Neither Defendant Palmer nor Defendant Carpenter ever sought a warrant to review the

contents of Plaintiff’s phone. ECF 102-4 at 22; ECF 121-1 at 8. Defendant Carpenter “didn’t

1 It is unclear how Defendant Palmer learned of Plaintiff Olson’s arrest; in his Motion for

Summary Judgment, he states that “Idaho State Police contacted [Defendant Palmer] to notify

him that . . . they had found the business card of one of his deputies during the arrest,” ECF 101

at 7, but Defendant Palmer stated in his deposition, “I don’t recall how I found out” and

suggested that Undersheriff Mobley may have told him about it. ECF 121-3 at 20.

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believe a warrant was necessary because [Plaintiff] had consented . . . to an extraction of her

phone,” and because Defendant Carpenter was not considering criminal charges. ECF 104-1 at

11–12.

On January 30, 2019, Defendant Carpenter sent a letter to the lead prosecutor of the

Jerome County, Idaho Prosecutor’s Office requesting a copy of Plaintiff Olson’s cell phone

extraction. ECF 104-2 at 1. In that letter, Defendant Carpenter wrote that “[t]he Sheriff of Grant

County, Glenn Palmer, approached [Carpenter] and indicated that one of his patrol deputies

[Tyler Smith] appears to be in an extramarital relationship with Olson, and likely has engaged in

activities with Olson that will affect his employment with the Sheriff’s Office.” Id. Defendant

Carpenter requested a copy of the cell phone extraction and represented that it would “be used

only for internal purposes, and will not be disseminated to any other agencies or third parties.”

Id.

The Jerome County prosecutor agreed to provide Defendant Carpenter with a copy of the

extraction. ECF 99-3 at 1. On February 26, 2019, Defendant Carpenter’s legal assistant sent a

blank flash drive to the Jerome County Prosecutor’s Office for their use in copying the phone

extraction. ECF 98 at 3; ECF 100-6, Ex. 12, at 1. The extraction came to Defendant Carpenter on

a thumb drive, which he sealed in an envelope and kept in his office. ECF 99-1 at 20.

Defendant Carpenter testified that he was interested in Plaintiff’s phone extraction in case

it contained evidence of any misconduct by Deputy Tyler Smith that would limit Smith’s ability

to be used as a witness in other cases. ECF 121-1 at 7–8. Defendant Carpenter specifically

testified that he was looking into whether the phone contained any material that Defendant

Carpenter would be required to disclose in future criminal proceedings in which Deputy Smith

served as a witness, pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Id. Before reviewing the

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extraction, Defendant Carpenter asked two detectives, one from the Oregon State Police and one

from the Deschutes County Sheriff’s office, if they would review the phone contents because he

wanted to avoid reviewing it himself. ECF 99-1 at 25, 37–38. Both detectives declined to review

the extraction because there was no related criminal investigation. Id. at 37–38. Defendant

Carpenter then reviewed the contents of Plaintiff Olson’s phone, including text messages and

photographs, more than ten of which were nude photographs and photographs depicting sexual

acts between Plaintiff Olson and Deputy Smith. Id. at 41–45. After concluding the extraction

contained no criminal evidence, Defendant Carpenter deleted the contents of the flash drive. Id.

at 48–49.

On April 10, 2019, Defendant Carpenter wrote a letter to Defendant Palmer, informing

him that “[a]t [Defendant Palmer’s] request, [Defendant Carpenter] obtained a phone dump from

the telephone of Haley Olson.” ECF 99-4 at 1. Defendant Carpenter noted that based on the

review of the phone’s contents, “Deputy Tyler Smith is or has been in an intimate relationship

with Haley Olson,” but “no evidence in the information provided . . . would show Deputy Tyler

Smith could be found to have engaged in conduct which could subject him to discipline or

sanction.” Id. On April 11, 2019, Defendant Palmer wrote in a letter to Deputy Smith that “the

investigation into [Smith’s] involvement with Haley Olson and her arrest in Idaho will not go

any further.” ECF 81-4, Ex. 12, at 2.

Defendant Palmer alleges that “[Defendant Carpenter] asked [him] if [he] wanted a copy

of the thumb drive of the cell phone dump from [Plaintiff’s] phone, and [Defendant Carpenter]

told [Defendant Palmer] there was [sic] things on the cell phone that, ‘once you see them, you

can’t unsee them,” . . . [Defendant Palmer] told [Defendant Carpenter] ‘no.’” ECF 100-7, Ex. 13,

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at 4. Defendant Palmer also described a second instance in which Defendant Carpenter offered

him a copy of the thumb drive, which Defendant Palmer also declined. Id. at 6–7.

Defendant Carpenter, for his part, claims he did not tell Defendant Palmer what was on

Plaintiff’s phone or ask Palmer if he wanted to see the phone’s contents. ECF 121-1 at 16.

Neither Defendant Palmer nor Defendant Carpenter allege that Carpenter actually provided

Palmer a copy of the thumb drive.

Plaintiff alleges that, at various points in 2019 and in various public places, strangers

began making derogatory comments to her and alluding to the circulation of her nude photos.

ECF 94 at ¶¶ 10–12, 14–15, 18; ECF 105-3 at 1. One such statement allegedly came from Jim

Sproul, a now-deceased member of the community who may have been friends with Defendant

Palmer. ECF 121-22 at 1. Defendant Palmer denies that he ever spoke with Jim Sproul about the

investigation or the contents of Plaintiff’s phone. ECF 102-4 at 26. Defendant Palmer also denies

ever seeing any nude photos of Plaintiff or Deputy Smith. Id. at 28–29.

On December 4, 2019, Plaintiff sent Defendant Carpenter a public records request

seeking all relevant communications about the cell phone extraction. ECF 99-5 at 1. That same

day, Defendant Carpenter wrote a letter to Plaintiff explaining the circumstances of his review

and that he had destroyed his copy of the cell phone extraction and reformatted the flash drive to

avoid any risk of the content being disseminated elsewhere. ECF 99-6 at 1.

This case was originally filed in Grant County Circuit Court on April 14, 2020. ECF 1-1

at 1. Defendants removed the case to federal court from the Grant County Circuit Court on

August 10, 2020. ECF 1-1 at 1. Defendant Carpenter moved to dismiss Plaintiff’s complaint on

September 4, 2020. ECF 9. Upon the recommendation of a magistrate judge, that motion was

denied. ECF 27.

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SUMMARY JUDGMENT, DENYING PLAINTIFF’S AMENDED MOTION FOR PARTIAL

Defendant Carpenter filed a Motion for Summary Judgment on May 12, 2022. ECF 98.

Defendants Grant County and Glenn Palmer filed a Motion for Summary Judgment on May 16,

2022. ECF 101. Plaintiff Olson filed a Motion for Partial Summary Judgment on May 16, 2022,

ECF 103, which she amended on June 6, 2022, ECF 117. Also on June 6, 2022, Plaintiff filed a

Motion for Adverse Inference. ECF 123.

DISCUSSION

A. Plaintiff’s Motion for Adverse Inference

As an initial matter, Plaintiff has requested that this Court apply an adverse inference,

both as a jury instruction and in considering the cross-motions for summary judgment, regarding

Defendant Carpenter’s allegedly intentional destruction of Plaintiff’s phone contents and

Defendant Palmer’s failure to preserve the phone contents. ECF 123 at 4. Defendants oppose the

motion. ECF 135, 140. Because any adverse inference would impact the summary judgment

analyses, this Court addresses it at the outset, concludes that no adverse inference is warranted

against either Defendant, and denies Plaintiff’s request for sanctions. ECF 123.

1. Legal Standards

Federal Rule of Civil Procedure 37(e) provides, “[i]f electronically stored information

that should have been preserved in the anticipation or conduct of litigation is lost because a party

failed to take reasonable steps to preserve it, and it cannot be restored or replaced through

additional discovery, the court” may (1) order necessary measures to cure any resulting prejudice

to a party; or, upon finding an intent to deprive another party of the information, (2) “presume

that the lost information was unfavorable to the party”; (3) “instruct the jury that it may or must

presume the information was unfavorable to the party”; or (4) “dismiss the action or enter a

default judgment.” Fed R. Civ. P. 37(e). Thus, to succeed on a Motion for Adverse Inference, the

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moving party must establish that (1) electronically stored information should have been

preserved in anticipation of litigation; (2) the electronic information was lost because another

party failed to take reasonable steps to preserve it; (3) the party that failed to preserve the

information “acted with the intent to deprive another party of the information’s use”; and (4) that

the information “cannot be restored or replaced through additional discovery.” See id.

2. Analysis

a. Plaintiff’s Motion for Adverse Inference Against Defendant Carpenter

Plaintiff asks this Court to apply an adverse inference as to Defendant Carpenter in this

Court’s jury instructions and its analyses of Plaintiff’s Motions for Summary Judgment. ECF 123

at 4–7. Specifically, Plaintiff asks this Court to find “that [Defendant Carpenter’s] search and

seizure of [Plaintiff’s] phone exceeded any consent she gave to any party to search her phone.”

Id. at 7. Plaintiff argues that the copy of the phone extraction reviewed by Defendant Carpenter

is now unrecoverable and that Carpenter “permanently hid the evidence of his actions by

destroying the phone contents.” Id. Defendant Carpenter asks this Court to deny Plaintiff’s

motion because he had no reason to anticipate this litigation, did not know the copy of Plaintiff’s

phone extraction was the only copy in existence, and had no intent to deprive Plaintiff of the

information on her own cell phone. ECF 135 at 4–8.

This Court is unpersuaded that any adverse inference against Defendant Carpenter is

appropriate. First, Plaintiff has not established that Defendant Carpenter had a duty to preserve

Plaintiff’s phone extraction in anticipation of litigation. Defendant Carpenter had no reason to

anticipate litigation in this case when he deleted Plaintiff’s phone contents; Carpenter deleted the

phone’s contents around April 2019, ECF 104-1 at 20, and Plaintiff did not contact Carpenter

about this matter until December 2019, ECF 99-5 at 1. Further, although it is undisputed that

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Defendant Carpenter deleted the phone extraction, Plaintiff has failed to prove Defendant

Carpenter intended to deny her the use of that information. As Defendant Carpenter never

possessed the original extraction, and only received a copy from the Jerome County prosecutor’s

office, Defendant Carpenter “had reason to believe that the Idaho state officials still had the

original extraction, and [that] Plaintiff was in possession of the phone from which the extraction

was taken.” ECF 135 at 2.

Additionally, although the exact information contained in Plaintiff’s phone extraction

may be irreplaceable, the information that is vital to this case is far from lost. Rather, Defendant

Carpenter concedes that he viewed more than ten nude photos of Plaintiff and Deputy Smith.

ECF 99-1 at 41–45. Further, this case hinges not on what exactly Defendant Carpenter saw, but

on the actions he took to view those contents and any subsequent dissemination thereof. Despite

this inconvenience, the evidence in the record supports Defendant Carpenter’s assertion that he

did not anticipate this litigation or intend to deprive Plaintiff of the information on her own cell

phone at the time he destroyed the phone extraction. Plaintiff’s argument that Carpenter’s

destruction of the extraction means he necessarily exceeded the scope of her consent is similarly

unpersuasive; the scope of Plaintiff’s consent is governed by the Fourth Amendment, not by

Rule 37. Accordingly, this Court denies Plaintiff’s motion for adverse inference as to Defendant

Carpenter.

b. Plaintiff’s Motion for Adverse Inference Against Defendant Palmer

Plaintiff also moves this Court for an adverse inference against Defendant Palmer

because he failed to take reasonable steps to preserve Plaintiff’s phone extraction. ECF 123 at 8.

Plaintiff argues that this Court should apply an adverse inference against Defendant Palmer

because he “should have reasonably anticipated litigation over the search and seizure of

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[Plaintiff’s] cell phone extraction,” and failed to take any steps to preserve that extraction. Id. at

8–9. Plaintiff also contends that an adverse inference is appropriate as to whether Defendant

Palmer’s involvement in the search of Plaintiff’s phone “exceeded any consent she gave to any

party.” ECF 123 at 8–9. Defendant Palmer asks this Court to deny Plaintiff’s motion because he

never possessed a copy of Plaintiff’s phone extraction, never knew of Defendant Carpenter’s

plans to delete that information, had no authority over Defendant Carpenter, and had no reason to

anticipate this litigation. ECF 140 at 4–10.

This Court finds no adverse inference is appropriate against Defendant Palmer for his

conduct regarding Plaintiff’s phone contents. Defendant Palmer, like Defendant Carpenter, had

no reason to anticipate this litigation or the necessary preservation of Plaintiff’s phone contents

for such litigation. Defendant Palmer, as Sheriff of Grant County, also had no supervisory

authority over District Attorney Carpenter to mandate the protection of that information even if

Palmer so desired. Additionally, Defendant Palmer took no actions to destroy the information at

issue and thus could not have acted with any intent to deprive Plaintiff of such information.

Finally, as noted above, the information that is vital to this case may be restored through

additional discovery. Contrary to Plaintiff’s assertion, Defendant Palmer’s failure to ensure the

preservation of Plaintiff’s phone extraction yields no logical conclusion that Palmer exceeded the

scope of Plaintiff’s consent during his part in this alleged search. For all these reasons, this Court

denies Plaintiff’s motion for adverse inference as to Defendant Palmer.

B. Plaintiff’s Constitutional Claim Against Defendant Carpenter

Defendant Carpenter asks this Court to grant summary judgment against Plaintiff’s claim

that Carpenter violated Plaintiff’s Fourth Amendment rights by searching, seizing, accessing, or

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viewing information and images on Plaintiff’s cell phone. ECF 98 at 2.2 Defendant Carpenter

further argues that he is entitled to qualified immunity. Id. at 11–13.3 This Court finds that

Defendant Carpenter is entitled to qualified immunity. Accordingly, this Court grants Defendant

Carpenter’s Motion for Summary Judgment.

As a threshold matter, Defendant Carpenter denies that he violated Plaintiff’s Fourth

Amendment rights and asserts that he “was not required to secure a warrant before accessing

data that Plaintiff had consented to provide to the Idaho State Police.” ECF 98 at 8. Defendant

Carpenter relies on three federal statutes that condone the sharing of information by law

enforcement agencies to support his position. Id. at 8–9. Defendant Carpenter further argues that

because the Idaho officials did not inform him of any limits on Plaintiff’s consent, he had no

reason to believe viewing the extraction would be unlawful. Id. at 9. Finally, Defendant

Carpenter argues that Plaintiff’s claims that he disseminated the contents of her phone are

unsupported by evidence. Id. at 6.

2 Plaintiff’s Fourth Amended Complaint alleges violations of her rights under the First,

Fourth, and Fourteenth Amendments. ECF 94 at ¶¶ 24–26. Plaintiff has clarified, however, in her

response to Defendant Carpenter’s Motion for Summary Judgment that “[t]he sole claim against

Defendant Carpenter in Plaintiff’s Fourth Amended Complaint is Plaintiff’s First Claim for

Relief under 42 U.S.C. § 1983, which alleges that Defendant Carpenter violated the Fourth

Amendment in his search and seizure of Plaintiff’s phone contents.” ECF 106 at 11. Plaintiff has

further clarified that her sole constitutional claim against Defendant Palmer and Defendant Grant

County is likewise based on liability under the Fourth Amendment. ECF 102 ¶ 3; ECF 102-1 at

1. As such, this Court refers to Plaintiff’s constitutional claim as a Fourth Amendment claim.

3 Defendant Carpenter also raises the affirmative defense of prosecutorial immunity in his

Answer, ECF 116 at ¶ 20, which Plaintiff moves against in her Motion for Partial Summary

Judgment, ECF 117 at 21. Defendant Carpenter also raised the issue of prosecutorial immunity at

oral argument. ECF 147. Because Defendant Carpenter did not raise prosecutorial immunity in

his Motion for Summary Judgment, ECF 98, this Court declines to address the issue.

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SUMMARY JUDGMENT, DENYING PLAINTIFF’S AMENDED MOTION FOR PARTIAL

1. Legal Standard

The Fourth Amendment to the Constitution ensures the right of citizens to be “secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S.

CONST. amend. IV. Though usually applied in the context of criminal investigations, the

Supreme Court has long held that the Fourth Amendment applies to official conduct in a variety

of civil and administrative activities. See, e.g., Camara v. Mun. Ct., 387 U.S. 523 (1967)

(housing code inspections); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989) (drug

tests of government employees); O’Connor v. Ortega, 480 U.S. 709 (1987) (searches and

seizures by government employers of employees’ private property); New Jersey v. T.L.O, 469

U.S. 325 (1985) (school official’s search of student’s purse).

“The touchstone of Fourth Amendment analysis is whether a person has a

‘constitutionally protected reasonable expectation of privacy.’” California v. Ciraolo, 476 U.S.

207, 211 (1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,

concurring)). Officers are usually required to obtain a search warrant prior to conducting a

Fourth Amendment search, but no warrant is required when an individual with the authority to

do so consents to the search. See Georgia v. Randolph, 547 U.S. 103, 109 (2006). The

determination of whether consent was properly given “must be judged against an objective

standard: would the facts available to the officer at the moment . . . warrant a man of reasonable

caution in the belief that the consenting party had authority over the [object of the search]?”

Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (quotation marks and citation omitted).

The scope of what may be searched pursuant to a party’s consent is likewise measured by

a standard of “‘objective’ reasonableness[—]what would the typical reasonable person have

understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S.

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248, 251 (1991) (citations omitted). Exceeding the scope of consent in conducting a search

constitutes a Fourth Amendment violation. See id.

2. Analysis

This Court notes at the outset that neither party disputes that Plaintiff has a reasonable

expectation of privacy in the contents of her cell phone. The parties do dispute whether

Defendant Carpenter conducted a search within the meaning of the Fourth Amendment when he

obtained and reviewed a digital copy of the contents of Plaintiff’s phone from the Idaho State

Police. ECF 128 at 3–4. Neither the Ninth Circuit nor the Supreme Court has held that a

“subsequent viewing of a copy of electronic data from a cell phone constitutes a search.” See

United States v. Hulscher, 4:16-CR-40070-01-KES, 2017 WL 657436, at *2 (S.D. Feb. 17,

2017) (finding no Ninth Circuit or Supreme Court precedent has addressed this question). For

purposes of this Opinion, this Court assumes—without deciding—that a subsequent viewing of a

digital copy of electronic material constitutes a search under the Fourth Amendment. See Riley v.

California, 573 U.S. 373, 386 (2014) (holding that “officers must generally secure a warrant

before conducting . . . a search [of data on cell phones].”).

When conduct constitutes a “search” under the Fourth Amendment, the conduct is

constitutional only if the officer obtains a warrant or if the conduct falls within certain categories

of permissible warrantless searches. Lange v. California, 141 S. Ct. 2011, 2017 (2021). One such

category is a consent search, wherein an individual voluntarily consents to the search. Fernandez

v. California, 571 U.S. 292, 298 (2014). The scope of a search authorized by consent “is limited

by the terms of its authorization.” Walter v. United States, 447 U.S. 649, 656 (1980). Where

consent is given by a third party, a search is constitutional where the police reasonably believe

that the third party has authority to consent to the search. Rodriguez, 497 U.S. at 186.

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It is undisputed that Plaintiff consented to a search of her phone by signing a form titled

“Idaho State Police Voluntary Consent to Search,” which includes two case numbers and reads:

“I, Haley Olson, hereby authorize the Idaho State Police, or its agent to conduct a search of my . .

. Mobile Device[.]” ECF 100-2, Ex. 8, at 1. Plaintiff argues that the scope of her authorization

clearly extended only to the Idaho State Police for the purpose of their narrow criminal

investigation related to her arrest. Plaintiff further argues that no reasonable person would

believe that Idaho officials had authority to consent to Defendant Carpenter’s review of

Plaintiff’s phone based on the clear language of the consent form. Defendant Carpenter, for his

part, argues that he reasonably relied on the Idaho officials consent to review the cell phone

extraction because it was his understanding that Plaintiff consented to a cell phone extraction and

that the Idaho officials “were willing to provide it to [Defendant Carpenter].” ECF 104-1 at 9.

Defendant Carpenter argues that it was reasonable to rely on Idaho’s consent because they did

not inform him of any limitations to Plaintiff’s consent to the search of her phone. ECF 98 at 3.

Fourth Amendment jurisprudence related to cell phones and digital information is both

relatively recent and still evolving. See Riley, 573 U.S. at 401–02 (finding that the search

incident to arrest exception does not apply to cell phones, though “other case-specific exceptions

may still justify a warrantless search of a particular phone”); see also Orin Kerr, Searches and

Seizures in a Digital World, 119 HARV. L. REV. 531, 533 (2005) (describing the application of

the Fourth Amendment to the search of digital evidence as “surprisingly unclear”). In support of

his argument that there was no Fourth Amendment violation, Defendant Carpenter emphasizes

that, “[t]he sharing of information obtained by law enforcement agencies is standard practice in

many contexts.” ECF 98 at 8; see 18 U.S.C. § 2517(1) (authorizing the disclosure of the contents

of wire, oral, or electronic communications between law enforcement agencies), 21 U.S.C. §

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1706(a) (authorizing the sharing of certain information related to drug trafficking between law

enforcement agencies), and 5 U.S.C. § 552a(b) (enumerating exceptions to the Privacy Act’s

general protections of personal information).

This Court concludes that it need not determine whether Defendant Carpenter’s conduct

constituted a Fourth Amendment violation because it finds that Defendant Carpenter is entitled

qualified immunity, as his actions were not in violation of clearly established law.

3. Whether Defendant Carpenter is entitled to qualified immunity

a. Legal Standard

“The doctrine of qualified immunity protects government officials from liability for civil

damages . . . .” Wood v. Moss, 572 U.S. 744, 745 (2014); see also Krainski v. Nev. ex rel. Bd. of

Regents, 616 F.3d 963, 968 (9th Cir. 2010). “Qualified immunity balances two important

interests—the need to hold public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and liability when they perform

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Whether qualified

immunity can be invoked turns on the ‘objective legal reasonableness’ of the official’s acts. And

reasonableness of official action, in turn, must be ‘assessed in light of the legal rules that were

clearly established at the time [the action] was taken.’” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866

(2017) (internal citation omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982);

Anderson v. Creighton, 483 U.S. 635, 639 (1987)). “The privilege is an immunity from suit

rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted

to go to trial.” Saucier v. Katz, 533 U.S. 194, 200–01 (2001) (internal quotation marks omitted)

(emphasis omitted) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). For this reason, the

Supreme Court has “stressed the importance of resolving immunity questions at the earliest

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possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). Qualified

immunity, however, is only an immunity from suit for damages, it is not an immunity from suit

for declaratory or injunctive relief. See L.A. Police Protective League v. Gates, 995 F.2d 1469,

1472 (9th Cir. 1993).

In her Fourth Amended Complaint, Plaintiff seeks “an injunctive order against all

Defendants instructing them to preserve all downloaded cell phone data downloaded from

Plaintiff’s phone, refrain from accessing such data, and return that data to Plaintiff or transfer it

under seal, in trust, to this Court, without retaining any of the data.” ECF 94 at ¶ 45. The

undisputed evidence before this Court shows that Defendant Carpenter deleted the downloaded

cell phone data from Plaintiff’s phone. ECF 104-1 at 20. There has been no evidence presented

that any of the defendants have retained any copies. As such, Plaintiff’s request for injunctive

relief is moot, and the only remaining relief that Plaintiff seeks is damages.

b. Analysis

This Court finds that Defendant Carpenter is entitled to qualified immunity because his

actions did not violate “clearly established law” such that “every ‘reasonable official would

[have understood] that what he [was] doing violate[d] that right.’” Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Where a defendant properly raises the defense of qualified immunity, “[i]t is the plaintiff

who bears the burden of showing the rights allegedly violated [are] clearly established.” Shafer v

Cnty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (internal quotation marks omitted)

(citation omitted). Plaintiff has not met that burden. Plaintiff cites to no case that clearly

establishes that at the time of Defendant’s alleged search, Defendant would have been on notice

that a law enforcement official violates the Fourth Amendment when he or she reviews a data

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SUMMARY JUDGMENT, DENYING PLAINTIFF’S AMENDED MOTION FOR PARTIAL

extraction taken from an individual’s cell phone where that individual consented to the

extraction, and where the extraction was shared with the reviewer by law enforcement. Indeed, at

the time that Defendant Carpenter reviewed the copy of Plaintiff’s cell phone extraction, neither

Ninth Circuit nor Supreme Court precedent clearly established that a “subsequent viewing of a

copy of electronic data from a cell phone constitutes a search.” See Hulscher, 2017 WL 657436

at *2. As such, Defendant Carpenter is entitled to qualified immunity because there is no clearly

established case law that would have put him on notice that his actions constituted a search under

the Fourth Amendment at all, let alone an unreasonable search.

Plaintiff relies primarily on two cases to support her argument that Defendant should

have been on notice that his subsequent review of the extraction without a warrant was a

violation of Plaintiff’s Fourth Amendment right. Neither illustrate that Defendant would have

been on notice, at the time he reviewed Plaintiff’s cell phone data, that his actions were in

violation of clearly established law. The first, Hulscher, is an unpublished case from outside of

the Ninth Circuit, and therefore cannot have put Defendant on notice that his actions were

potentially in violation of Plaintiff’s Fourth Amendment rights. 2017 WL 657436 at *4.

Moreover, Hulscher concerned the subsequent viewing of a cell phone extraction in a separate

criminal case, and the extraction was first obtained via a warrant. Id. at *1–*2. In the present

case, by contrast, Defendant did not review the extraction for any criminal proceeding, and the

extraction was first obtained via Plaintiff’s consent. These factors render Hulscher sufficiently

distinct that it could not have provided Defendant notice that his actions were in violation of

clearly established law.

Plaintiff next points to Riley v. California, in which the Supreme Court held that “officers

must generally secure a warrant before conducting . . . a search [of data on cell phones].” 573

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U.S. 373, 386 (2014). Riley stands for the proposition that a law enforcement officer cannot rely

on the “search incident to arrest” exception to the warrant requirement to search the cell phone of

an individual under arrest. Id. at 401. It is not instructive in the present case, which does not

involve application of the “search incident to arrest” exception nor the search of a cell phone

itself, rather than the review of a cell phone extraction. As such, it would not have put Defendant

on notice that his actions were in violation of clearly established law. Defendant Carpenter is

thus entitled to qualified immunity, and his Motion for Summary Judgment is granted.

C. Plaintiff’s Constitutional Claim Against Defendant Palmer

Defendant Palmer asks this Court to grant summary judgment against Plaintiff’s claim

that Palmer violated Plaintiff’s Fourth Amendment rights by searching, seizing, accessing, or

viewing information and images on Plaintiff’s cell phone. ECF 101 at 12. Defendant Palmer

further argues that he is entitled to qualified immunity. Id. at 14–15.

Plaintiff seeks to hold Defendant Palmer liable for a Fourth Amendment violation on two

theories: first, that Defendant Palmer personally possessed Plaintiff’s phone contents, or, in the

alternative, that Defendant Palmer can be liable as a supervisor of individuals—such as

Defendant Carpenter—who did personally possess Plaintiff’s phone contents. ECF 120 at 10–14,

18–21. This Court finds that Defendant Palmer did not violate Plaintiff’s Fourth Amendment

rights. There is no evidence in the record that Defendant Palmer ever possessed Plaintiff’s phone

extraction such that he could potentially be held personally liable for an unreasonable search

under the Fourth Amendment. Furthermore, Defendant Palmer cannot be held liable for the

conduct of others based on a theory of supervisory liability. Moreover, even if Defendant Palmer

did violate Plaintiff’s Fourth Amendment rights, this Court finds that Defendant Palmer would

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be entitled to qualified immunity. Accordingly, this Court grants Defendant Palmer’s Motion for

Summary Judgment.

1. Legal Standard

“An official may be liable as a supervisor only if either (1) he or she was personally

involved in the constitutional deprivation, or (2) a sufficient causal connection exists ‘between

the supervisor’s wrongful conduct and the constitutional violation.’” Felarca v. Birgeneau, 891

F.3d 809, 819–20 (9th Cir. 2018) (citation omitted). “The requisite causal connection can be

established by setting in motion a series of acts by others, or by knowingly refusing to terminate

a series of acts by others, which the supervisor knew or reasonably should have known would

cause others to inflict a constitutional injury.” Id. (citation omitted). Officers within the chain of

command may be liable if they “ordered or failed to stop any action that [they] knew or

reasonably should have known would cause” constitutional violations. Id. at 821 (internal

quotation marks omitted) (remanding to grant summary judgment because plaintiffs failed to

provide evidence that supervisors did so).

2. Analysis

Defendant Palmer argues that summary judgment is warranted on Plaintiff’s

constitutional claim because he did not personally search, seize, access, or view the contents of

Plaintiff’s phone. ECF 101 at 13. Rather, Defendant Palmer states that his role in the instant case

was limited to “relay[ing] the information he received from the Idaho authorities to the District

Attorney, including that Plaintiff had consented to a data dump of her cell phone.” Id.

Plaintiff argues that “a reasonable juror could find Sheriff Palmer actually possessed the

phone contents.” ECF 120 at 16. Plaintiff offers no admissible evidence to support her argument

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that Defendant Palmer possessed or viewed the contents of her cellphone. Orr v. Bank of

America, NT & SA, 285 F3d 764, 773 (9th Cir. 2002) (“A trial court can only consider

admissible evidence in ruling on a motion for summary judgment.”).4 Instead, the evidence in the

record shows that Defendant Palmer never personally possessed or viewed the contents of

Plaintiff’s phone. ECF 99 at ¶ 11; ECF 100-7 at 4, 6–7; ECF 102-4 at 29–30.

If Defendant Palmer did not personally possess and view the contents of Plaintiff’s

cellphone, Defendant Palmer can only be held personally liable if a “sufficient causal connection

exists ‘between the supervisor’s wrongful conduct and the constitutional violation.’” Felarca,

4 In support of her argument that Defendant Palmer possessed and viewed the contents of

her cell phone, Plaintiff cites to a comment made by Jim Sproul, who is now deceased.

According to Plaintiff, Mr. Sproul told her that “Defendant Palmer had shown him pictures from

[Plaintiff’s] phone.” ECF 94 at ¶ 18. This is an out of court statement that, if offered for its truth,

would constitute hearsay. Fed. R. Evid. 801. Plaintiff attempts to circumvent this issue by

claiming that the statement would not be offered for its truth, but instead to demonstrate

Plaintiff’s state of mind with respect to the timing of her tort claim notices. ECF 120 at 36. Even

if the Court were to admit this statement for the limited purpose of showing Plaintiff’s state of

mind, the statement would not be evidence that Defendant Palmer possessed or viewed the

contents of her cell phone. As such, there is no genuine dispute of material fact in the record

about whether Defendant Palmer ever personally possessed or viewed the contents of Plaintiff’s

phone.

In her Response to Defendants Grant County and Palmer’s Motion for Summary

Judgment, Plaintiff suggests that testimony from Tahnee Helms, ECF 100-8, Ex. 14, would not

be admitted at trial for its truth, “but to demonstrate the harassment [Plaintiff] experienced.” ECF

120 at 15, n.1. At oral argument, Plaintiff stated that the Helms testimony would be offered for

its truth. Taken in the light most favorable to Plaintiff, the Helms testimony shows that Zach and

Abbie Mobley possessed two photos of Plaintiff, one of them being a nude photo, within a month

or two of Plaintiff’s arrest in Idaho. ECF 100-8, Ex. 14, at 5, 18. Helms testified that she could

not recall whether she saw the photographs before or after Plaintiff’s arrest. Id. at 5. Helms’s

testimony makes no mention of Defendant Carpenter, Defendant Palmer, or Grant County, and

therefore does not support Plaintiff’s argument that a genuine dispute of material fact exists as to

whether Defendant Palmer ever possessed the cell phone extraction. This Court notes that while

Zach and Abbie Mobley were named as defendants in Plaintiff’s First, Second, and Third

Complaints, ECF 1, ECF 8, ECF 32, Plaintiff eliminated them as defendants in her Fourth

Amended Complaint, ECF 94.

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891 F.3d at 820. Plaintiff argues that there remain issues of fact as to whether Defendant Palmer

either set in motion or knowingly refused to terminate a series of events that led to Defendant

Carpenter’s viewing of her cell phone contents. ECF 120 at 16. Plaintiff’s argument is

unpersuasive and unsupported by admissible evidence in the record.

In Felarca v. Birgeneau, the Ninth Circuit considered the issue of supervisory liability in

the Fourth Amendment use of reasonable force context. 891 F.3d at 819. The plaintiffs sued

various University of California police department officers, as well as various University of

California administrators, following a confrontation between protestors and police officers at the

University of California, Berkeley. Id. at 810. The plaintiffs, a group of protestors, had attempted

to set up encampments on the University of California, Berkeley campus, in violation of campus

policy. Id. at 815. Pursuant to the campus policy, university police removed the tents, and used

batons to effectuate that removal, injuring some protestors in the process. Id. The plaintiffs sued,

alleging that the university administrators were liable for the actions of the police because they

planned the police response and failed to stop the alleged assaults. Id. at 815, 819.

The Ninth Circuit noted that administrators outside of the chain of police command could

not be held liable because they “had no supervisory authority” over the individuals that

committed the alleged violations. Id. 820. For the administrators that were within the chain of

command, the Ninth Circuit held that even assuming that the administrators “ordered police to

remove the tents, acquiesced in the use of batons to effectuate removal of the tents, and learned

that batons had been used during the afternoon protest and injuries had occurred,” there was not

a sufficient “degree of personal involvement or causal connection” between those actions and the

alleged constitutional injuries to hold the administrators liable. Id. The administrators, the court

concluded, “had no reason to assume that police would use force beyond the bounds of [the

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university policy]” and in violation of the Fourth Amendment. Id. 820–21. Accordingly, the

Ninth Circuit held that there was no supervisory liability for the administrators. Id.

Plaintiff’s claim fails for similar reasons. To begin with, Plaintiff has failed to produce

evidence to support a genuine dispute of material fact regarding the extent of Defendant Palmer’s

“supervisory authority” over Defendant Carpenter. The admissible evidence before this Court

shows that Defendant Carpenter was acting in his role as District Attorney when he obtained and

reviewed the contents of Plaintiff’s phone. ECF 99-1 at 10, 40, 49. Under Oregon law, the

District Attorney is an officer of the State of Oregon when carrying out their duties as

prosecutors, not an officer of the county. Dickerson v. City of Portland, No. 3:19-cv-01126-SB,

2020 WL 7391267, at *11 (D. Or. Dec. 16, 2020). Defendant Palmer therefore had no control

over the actions of Defendant Carpenter when the latter was acting on behalf of the State of

Oregon and not Grant County. A defendant cannot be “[a] supervisor[] of persons beyond their

control.” Felarca, 891 F.3d at 820. As such, Defendant Palmer cannot be held liable for the

actions of Defendant Carpenter because he did not exercise “supervisory authority” over

Defendant Carpenter.

Nor does this Court find a genuine dispute of material fact regarding whether Defendant

Palmer “set[] in motion a series of acts by others” or “knowingly refus[ed] to terminate a series

of acts by others” over whom he did have “supervisory authority.” Id. Even if Plaintiff could

show that Defendant Palmer had supervisory authority over Defendant Carpenter, there is not a

sufficient causal link between Defendant Palmer’s request that Defendant Carpenter obtain and

view the cell phone contents and the alleged constitutional violation.

Plaintiff argues that Defendant Palmer “instructed [Defendant] Carpenter . . . to obtain

[Plaintiff’s] phone extraction from Idaho to retaliate against and silence Deputy Smith;

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[Defendant] Carpenter got the phone contents, shared them with Undersheriff Mobley, and

described them to [Defendant] Palmer.” ECF 120 at 17-18.5 As in Felarca, Defendant Palmer

had no reason to assume that Defendant Carpenter would take actions in violation of the Fourth

Amendment. See Felarca, 891 F.3d at 820–21. Plaintiff cites to no evidence in the record that

Defendant Palmer ever explicitly directed Defendant Carpenter to seek the cell phone contents

without first obtaining a warrant. There is also no evidence that Defendant Palmer encouraged

Defendant Carpenter to share the content of Plaintiff’s phone with himself or others within the

Grant County Sheriff’s Office. Defendant Palmer testified during his February 24, 2022

deposition that he “had no knowledge of what [Defendant Carpenter] was going to do . . . with

the contents of [Plaintiff’s] cell phone” and indeed never even asked Defendant Carpenter about

his plans. ECF 121-3 at 49. In short, Plaintiff has failed to show a genuine dispute of material

fact regarding whether Defendant Palmer was sufficiently connected to Defendant Carpenter’s

acts to be held liable for any alleged Fourth Amendment violation based on any alleged

supervisory role.

5 Plaintiff argues that there is a genuine dispute of material fact as to whether Defendant

Carpenter was acting in his role as District Attorney or County Counsel when he obtained and

reviewed the contents of Plaintiff’s cell phone. ECF 120 at 26–27. This argument is not

supported by the record, which shows that in all correspondence related to the incident at issue in

this case, Defendant Carpenter used his District Attorney letterhead, ECF 102-5 at 25, 27, 28,

which he stated at his deposition he used whenever he was acting as District Attorney, ECF 102-

3 at 10.

This Court also finds that the evidence does not support an inference that Defendant

Palmer enlisted Defendant Carpenter to obtain and review Plaintiff’s cell phone contents to

retaliate against either Plaintiff or Deputy Smith.

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3. Whether Defendant Palmer is Entitled to Qualified Immunity

Moreover, this Court finds that even if Defendant Palmer could be held liable based on

supervisory liability for any Fourth Amendment violation that might have occurred during

Defendant Carpenter’s review of Plaintiff’s cell phone, Defendant Palmer would nonetheless be

entitled to qualified immunity.

As noted above, an officer is entitled qualified immunity unless their actions violate

“clearly established law” such that “every ‘reasonable official would [have understood] that what

he [was] doing violate[d] that right.’” Al-Kidd, 563 U.S. at 741. Plaintiff argues that Defendant

Palmer is not entitled to qualified immunity because “clearly established law requires

authorization through a warrant or consent to access cell phone contents, including setting in

motion and overseeing access to cell phone contents.” ECF 120 at 19. As noted above, no case at

the time of Defendant Carpenter’s review of Plaintiff’s phone extraction would have put

Defendant Carpenter on notice that his actions were in violation of clearly established law. It

follows that Defendant Palmer would likewise not have been on notice that requesting the review

of Plaintiff’s phone extraction would be in violation of clearly established law.

Plaintiff has cited to no authority to support her claim that Defendant Palmer’s actions

were unconstitutional under clearly established law. Defendant Palmer, by contrast, points to

Supreme Court precedent holding that an officer’s reliance on the approval of a deputy district

attorney and magistrate, in the context of a warrant, supports a finding that the officer reasonably

believed that their actions were constitutional. See Messerschmidt v. Millender, 565 U.S. 535,

554–55 (2012). Here, Defendant Palmer asked Defendant Carpenter to investigate the contents of

Plaintiff’s cell phone. He did not ask Defendant Carpenter to do so in a way that clearly violated

the Fourth Amendment, particularly given his knowledge that Plaintiff had consented to a search

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of her phone by the Idaho State Police. ECF 102-4 at 12–13, 17. In light of the evidence before

this Court and relevant caselaw, this Court cannot say that Defendant Palmer’s actions were

“plainly incompetent” or a “knowing[] violat[ion] [of] law.” Malley v. Briggs, 475 U.S. 335, 341

(1986). Defendant Palmer is thus entitled to qualified immunity.

D. Plaintiff’s Claims Against Grant County

Defendant Grant County asks this Court to grant summary judgment against Plaintiff’s

claims against the County. ECF 101 at 16–17. Plaintiff brings two claims against Grant County:

one constitutional claim brought pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978),

and one state law claim for intrusion upon seclusion. ECF 94 ¶¶ 31–38, 39–44. For the following

reasons, this Court grants Defendant Grant County’s Motion for Summary Judgment with

respect to Plaintiff’s constitutional claim, and dismisses Plaintiff’s state law claim for lack of

jurisdiction.

1. Plaintiff’s Fourth Amendment Claim

In addition to Plaintiff’s constitutional claims against individual defendants Carpenter

and Palmer, Plaintiff brings a constitutional claim against Grant County under 42 U.S.C. § 1983.

Plaintiff alleges that Grant County violated her right to be free from unreasonable searches and

seizures in violation of her Fourth Amendment rights. Id. at ¶ 33–38.

“Pursuant to 42 U.S.C. § 1983, a local government may be liable for constitutional torts

committed by its officials according to municipal policy, practice, or custom.” Weiner v. San

Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 2000) (citing Monell, 436 U.S. at 690–91).

Alternatively, “the plaintiff may prove that an official with final policy-making authority ratified

a subordinate’s unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979

F.2d 1342, 1346–47 (9th Cir. 1992) (citations omitted).

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Plaintiff advances three separate Monell theories regarding Defendant Grant County’s

liability: (1) policy, practice, or custom, (2) actions of decisionmakers, and (3) failure to train.

ECF 120 at 23. This Court analyzes each in turn.

a. Policy, Practice, or Custom

To establish Monell liability caused by a government policy or longstanding practice or

custom, the plaintiff must show that (1) the plaintiff was deprived of a constitutional right; (2)

the municipality had a policy, longstanding practice, or custom; (3) the policy, practice, or

custom amounted to “deliberate indifference to the plaintiff’s constitutional right;” and (4) the

policy, practice, or custom was “the moving force behind the constitutional violation.”

Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citation omitted).

Plaintiff argues that an issue of fact remains as to Defendant Grant County’s policies,

practices, or customs. ECF 120 at 23. According to Plaintiff, based on the testimony of

Defendants Carpenter and Palmer, a “reasonable juror could find . . . that Grant County had a

policy, practice, or custom of seizing cell phone data without authorization through a warrant or

consent if the cell phone belonged to someone not accused of a crime.” Id. at 24.

The evidence in the record, however, does not support Plaintiff’s position. While

Defendant Carpenter noted that he thought, in this instance, that a warrant was not necessary

because he was not investigating Plaintiff for a crime, this testimony does not support an

inference that this is a widespread policy within Grant County. ECF 99-1 at 14–15. Moreover,

this position ignores the evidence that Defendant Carpenter also did not obtain a warrant because

he believed that the Idaho officials had the authority to consent to share the information. Id. at

12; see also Rodriguez, 497 U.S. at 186 (finding no Fourth Amendment violation where a law

enforcement official reasonably relies on the consent of a third-party). Plaintiff presents no

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evidence to suggest that Defendant Carpenter was acting pursuant to some actual policy as

opposed to his own belief that, under the circumstances applicable to Plaintiff’s particular

situation, it was permissible to seek and review the cell phone contents without a warrant. See

City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) (noting that “policy” within the

context of Monell liability “generally implies a course of action consciously chosen from among

various alternatives”). Plaintiff has therefore failed to show a genuine dispute of material fact

regarding whether Grant County had a policy, practice, and custom of accessing, without a

warrant, cell phone data for those not accused of crimes.

Plaintiff next argues that she can sustain a Monell claim based on the Grant County

Sheriff’s Office’s handling of electronic evidence. Plaintiff points specifically to the testimony of

Sheriff Todd McKinley, in which Sheriff McKinley states that officers within the Grant County

Sheriff’s Office would preserve digital evidence for cases by burning that evidence onto a CD or

printing hard copies of the evidence. ECF 121-5 at 6. Plaintiff also argues that while the Grant

County Sheriff’s Office “followed careful chain-of-custody, retention, and destruction policies

regarding physical evidence,” it had no similar policy regarding digital evidence. ECF 120 at 24–

25.

Plaintiff’s argument fails for multiple reasons. First, Plaintiff’s claim that the Grant

County Sheriff’s Office “followed no set procedure for the destruction of electronic evidence” is

belied by the record. Id. at 24. In his deposition, Sheriff McKinley states that the Grant County

Sheriff’s Office has a policy for treating electronic evidence as “evidence,” suggesting that it is

the policy of the Grant County Sheriff’s Office to follow similar procedures regarding the chain-

of-custody, preservation, and destruction for physical and digital evidence. ECF 121-5 at 8–9.

Second, even if the Grant County Sherriff’s Office had different policies regarding electronic and

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digital evidence, Plaintiff has not shown that such a policy would be facially unlawful. When a

plaintiff seeks to establish municipal liability on the theory that a facially lawful municipal action

has led an employee to violate a plaintiff's rights, the plaintiff “must demonstrate that the

municipal action was taken with ‘deliberate indifference’ as to its known or obvious

consequences.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 407 (1997)

(citation omitted). Plaintiff has not done so here.

Finally, Plaintiff argues that the “Grant County Employee Handbook Policy V.D.” can

support a Monell claim. ECF 120 at 25. Plaintiff states that pursuant to Handbook Policy V.D.,

Grant County equipment, including Defendant Carpenter’s computer, is not private and “is

intended for Grant County business purposes.” Id.; see ECF 121-19 at 10. Again, Plaintiff fails to

show how this facially legal policy is carried out with “deliberate indifference” to “known or

obvious consequences” of constitutional injuries. See Brown, 520 U.S. at 407. Plaintiff therefore

cannot sustain a Monell claim based on this Grant County policy.

b. Actions of Decisionmakers

A municipality can be held liable for a constitutional injury if a person “whose edicts or

acts . . . may fairly be said to represent official policy” causes a constitutional violation. Brewster

v. Shasta Cnty., 275 F.3d 803, 805 (9th Cir. 2001) (citing Monell, 436 U.S. at 694). Plaintiff

argues that Defendant Palmer possessed final policymaking authority as to personnel

investigations and discipline. ECF 120 at 26. Plaintiff likewise claims that Defendant Carpenter,

as County Counsel, also had final decision-making authority regarding employee discipline

within the Grant County Sheriff’s Office. Id. at 26–27. Finally, Plaintiff claims that Undersheriff

Zach Mobley—by virtue of his presence during a meeting where Plaintiff’s phone contents were

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discussed and his presence during a meeting with county insurance regarding another employee

investigation—had final policymaking authority. Id. at 27. Plaintiff’s arguments are unavailing.

First, as this Court has previously discussed, the evidence in the record does not support

the inference that Defendant Carpenter was acting in his role as County Counsel when he

obtained and reviewed the contents of Plaintiff’s cell phone. See, e.g., ECF 102-3 at 27; ECF

102-4 at 20. As District Attorney, Defendant Carpenter acts as an agent of the State, not the

County, Dickerson, 2020 WL 7391267 at *11, and therefore cannot be considered a final

policymaker for Defendant Grant County, Jett v. Dallas Independent School Dist., 491 U.S. 701,

737 (1989) (“[W]hether a particular official has ‘final policymaking authority’ is a question of

state law.” (citation omitted)). Nor does the record support an inference that Defendant Palmer

delegated his final decision-making authority to Defendant Carpenter. As Defendant Carpenter

noted in his deposition, if Defendant Palmer had wanted to access the contents of Plaintiff’s

phone for the Sheriff Office’s own internal investigation into Deputy Smith, Defendant Palmer

“would have had to go through his own process to get [the phone contents]” because Defendant

Carpenter was not “keeping the information for [Defendant Palmer].” ECF 99-1 at 50.

This Court likewise finds that no reasonable juror could assume that Undersheriff Mobley

was a final policymaker for Grant County by virtue of his presence at two meetings regarding

workplace misconduct investigations. ECF 120 at 27. Whether an individual is a final

policymaker is a question of state law, and Plaintiff points to no authority to support her claim

that either the mere title of “Undersheriff” or the presence of an individual at two meetings

renders that person a final policymaker. There is no evidence in the record to support the

inference that the actions of Undersheriff Mobley were not ultimately constrained by either the

Grant County Sheriff’s Office’s official policies or by Defendant Palmer himself. Cf. City of St.

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Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (“When an official’s discretionary decisions are

constrained by policies not of that official’s making, those policies, rather than the subordinate’s

departures from them, are the act of the municipality. Similarly, when a subordinate’s decision is

subject to review by the municipality’s authorized policymakers, they have retained the authority

to measure the official’s conduct for conformance with their policies.”). Nor is there evidence to

support Plaintiff’s argument that Defendant Palmer delegated any of his authority to

Undersheriff Mobley.

Finally, Plaintiff’s argument that Defendant Palmer is a final policymaker for Grant

County fails as a matter of law. Plaintiff asserts that Defendant Palmer “testified that at the times

relevant to this case, he did have final policymaking authority as to personnel investigations and

discipline.” ECF 120 at 26. Plaintiff also argues that “[t]he title[] Sheriff . . . may be enough to

conclude [that Defendant Palmer] was a final policymaker for Grant County.” Id. at 27. But there

is a difference between being the final policymaker for the Grant County Sheriff’s Office and

being a final policymaker for Grant County. See Gillette, 979 F.2d at 1350 (concluding that a

city fire chief who had authority to hire and fire employees, but did not establish the city’s

employment policy, was not a final policymaker for the city). Plaintiff points to no evidence that

Defendant Palmer had authority to set Grant County’s employment policies. Indeed, Defendant

Palmer’s own deposition testimony suggests that while he had discretion to initiate an

employment investigation, he would nonetheless need to confer with other County

decisionmakers to ensure that the County’s employment policies were followed. ECF 102-6 at 7–

8.

Even assuming that Defendant Palmer could be considered a final policymaker for Grant

County, however, that fact alone is still not sufficient to hold Defendant Grant County liable. As

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discussed above, even if Defendant Palmer’s actions could be attributed to Defendant Grant

County, those actions do not rise to the level of a constitutional violation. The evidence in the

record does not show that Defendant Palmer ever possessed or viewed the contents of Plaintiff’s

phone nor instructed Defendant Carpenter to obtain the contents of Plaintiff’s phone without first

obtaining a warrant. Moreover, there is no evidence that Defendant Palmer encouraged

Defendant Carpenter to share the content of Plaintiff’s phone with himself or others within the

Grant County Sheriff’s Office. In short, Defendant Palmer committed no “constitutional tort” for

which Defendant Grant County could be held liable, even if Defendant Palmer was an official

with “final policy-making authority.” See Gillette, 979 F.2d at 1346–47.

c. Failure to Train

Monell liability can also arise from a failure to train, supervise, or discipline that amounts

to a deliberate indifference to individuals’ constitutional rights. Horton by Horton v. City of

Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019). Deliberate indifference is “a stringent

standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Brown, 520 U.S. at 410. To show deliberate indifference, Plaintiff

must demonstrate that the need “‘for more or different’ action ‘is so obvious, and the inadequacy

[of existing practice] so likely to result in the violation of constitutional rights, that the

policymakers of the city can reasonably be said to have been deliberately indifferent to the

need.’” Hyun Ju Park v. City and Cnty. of Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020)

(quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)) (alteration in original).

Plaintiff argues that issues of fact remain as to whether “Grant County adequately trained

law enforcement regarding search, seizure, use, retention, and destruction of electronic evidence

and whether that failure to train was deliberately indifferent to the rights of the owners of

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electronic evidence.” ECF 120 at 27. Plaintiff bases this argument on her claim that “[t]here is no

evidence that County personnel,” including Defendants Carpenter and Palmer, “received any

training regarding the County’s expectations for handling electronic evidence.” Id. at 28. But

Plaintiff’s allegation is unsupported by the evidentiary record. Indeed, Defendant Palmer stated

in his deposition that “some of the other [sheriff’s] deputies . . . were trained [in] downloading []

images on the computer.” ECF 102-4 at 8. Defendant Carpenter also stated, in a letter sent to

Plaintiff, that he has “some specialized training in the area of cell phone extraction and review.”

ECF 102-5 at 28. Based on this record, this Court cannot say that there is a genuine dispute of

material fact regarding whether Grant County personnel received at least some training in the

handling of electronic evidence. Nor can this Court say, based on the evidence before it, that

Grant County failed to train its personnel in such a way that “the need for more or different

training [was] so obvious, and the inadequacy so likely to result in the violation of constitutional

rights, that the policymakers of the city can reasonably be said to have been deliberately

indifferent to the need.” Canton, 489 U.S. at 390.

2. Plaintiff’s Intrusion Upon Seclusion Claim

A district court may decline to exercise supplemental jurisdiction over state-law claims if

it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. 1367(c). When a

district court dismisses all federal-law claims before trial, “the balance of factors to be

considered under the pendant jurisdiction doctrine—judicial economy, convenience, fairness,

and comity” will, in the usual case, “point toward declining to exercise jurisdiction over the

remaining state-law claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).

Because summary judgment is appropriate on all of the federal claims against Defendants,

this Court, in its discretion, declines to exercise jurisdiction over Plaintiff’s remaining

PAGE 32 – OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT, DENYING PLAINTIFF’S AMENDED MOTION FOR PARTIAL

supplemental state law claim for intrusion upon seclusion. See 28 U.S.C. § 1367(c)(3); Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640–41 (2009) (district court has discretion to decline

to exercise supplemental jurisdiction over state law claims where court has dismissed claims

over which it had original jurisdiction); Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (same).

Accordingly, this Court will not address the parties’ remaining arguments concerning Plaintiff’s

state law claim. Plaintiff’s state law claim is dismissed without prejudice. As of the date of the

order of dismissal, Plaintiff will have thirty days to bring her state law claims in state court,

should she desire to do so. See 28 U.S.C. § 1367(d).

E. Plaintiff’s Amended Motion for Partial Summary Judgment, ECF 117

Plaintiff moves for partial summary judgment on nine claims or affirmative defenses.

ECF 117. When parties file cross-motions for summary judgment, the court “evaluate[s] each

motion separately, giving the nonmoving party in each instance the benefit of all reasonable

inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790–91 (9th Cir. 2006)

(quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,

674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the]

same standard.”). In evaluating the motions, “the court must consider each party’s evidence,

regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632

F.3d 526, 532 (9th Cir. 2011).

As discussed above, in assessing Defendants’ Motions to Summary Judgment and

viewing the evidence most favorable to Plaintiff, this Court finds that Plaintiff cannot show a

genuine dispute of material fact and that Defendants are entitled to judgment in their favor, as a

matter of law, on all of Plaintiff’s claims. Plaintiff’s Amended Motion for Partial Summary

Judgment, ECF 117, is therefore denied as moot.

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SUMMARY JUDGMENT, DENYING PLAINTIFF’S AMENDED MOTION FOR PARTIAL

CONCLUSION

For the foregoing reasons, this Court GRANTS Defendant Carpenter’s Motion for

Summary Judgment, GRANTS Defendants Palmer and Grant County’s Motion for Summary

Judgment, and DENIES Plaintiff’s Motion for Partial Summary Judgment. Plaintiff’s federal

claims against Defendants Carpenter, Palmer, and Grant County are accordingly dismissed with

prejudice. This Court declines to exercise supplemental jurisdiction over Plaintiff’s state law

claim, which is dismissed without prejudice. As of the date of the order of dismissal, Plaintiff

will have thirty days to bring her state law claims in state court, should she desire to do so.

IT IS SO ORDERED.

DATED this 22nd day of March, 2023.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge

PAGE 34 – OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT, DENYING PLAINTIFF’S AMENDED MOTION FOR PARTIAL