Brodnik v. Lanham

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BLUEFIELD

RANDY MICHAEL BRODNIK, D.O.,

Plaintiff,

v. Civil Action No. 1:11-0178

ROBERT LANHAM, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court are the parties’ cross motions

for summary judgment as to Count I of plaintiff’s Second Amended

Complaint. (ECF Nos. 101 and 105). For the reasons discussed

below, defendant’s motion (ECF No. 105)1 is GRANTED and

plaintiff’s motion (ECF No. 101) is DENIED.2

I. Background

According to the Second Amended Complaint, at the time of

the events giving rise to the instant Complaint, defendant Robert

Lanham was employed as a special agent with the Internal Revenue

Service. Complaint ¶¶ 8 and 10. As a result of a six-year

investigation of plaintiff Randy Michael Brodnik, D.O.

1 Plaintiff argues that defendant’s motion should be denied

because it was not timely filed. Given the confusion surrounding

the deadline, the court finds that good cause exists for filing

the motion out of time.

2 Plaintiff actually filed a Motion For Court to Make

Finding As to Whether or Not Defendant Deborah Beck is a State

Actor for Purposes of Bivens Liability which the court has

construed as a motion for partial summary judgment in plaintiff’s

favor.

(“Brodnik”) for income tax evasion, Lanham recommended that

Brodnik be prosecuted. See id. at ¶ 10. On March 18, 2009, a

federal grand jury returned a seven-count indictment against

Brodnik charging him with conspiracy and six counts of income tax

evasion. See id. at ¶ 11. On June 2, 2010, the grand jury

returned a seven-count second superseding indictment charging

Brodnik with one count of conspiracy, five counts of income tax

evasion, and one count of corruptly endeavoring to impede and

obstruct the due administration of the Internal Revenue laws.

See id. at ¶ 13. After a three-week jury trial, Brodnik was

acquitted of all charges. See id. at ¶¶ 14, 20.

Brodnik alleges that one of the government’s witnesses,

defendant Deborah Beck, testified at Brodnik’s trial that she

illegally accessed Brodnik’s electronic mail and provided it to

defendant Lanham. See id. at 17-18. Count I of the Complaint is

brought pursuant to Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and alleges the

violation of Brodnik’s constitutional rights.

Lanham filed a motion to dismiss the Bivens claim which

the court denied insofar as it alleged a violation of Brodnik’s

Fourth Amendment rights regarding his email.3 In his complaint,

Brodnik alleged as follows:

3 Lanham’s motion to dismiss the Bivens claim was granted in

all other respects. See ECF No. 83.

2

17. Defendant Beck testified that she illegally

accessed plaintiff Brodnik’s electronic email.

18. Defendant Beck testified that she produced print

outs of messages she obtained when she illegally

accessed plaintiff Brodnik’s electronic mail to

defendant Lanham.

19. Defendants Lanham and Beck conversed frequently

via electronic mail and other means. Some of

defendants’ conversations included defendant

Beck’s compensation if plaintiff Brodnik was

convicted.

32. Defendant Lanham participated in defendant Beck’s

actions by using the illegally accessed electronic

mail in the prosecution of plaintiff Brodnik in

violation of the Fourth and Fourteenth Amendments.

35. Furthermore, defendant Lanham also discussed

possible compensation for defendant Beck if

plaintiff was convicted, thus encouraging

defendant Beck to gain information in any manner

possible in violation of the Fourteenth Amendment.

36. By encouraging defendant Beck to illegally search

and seize plaintiff’s electronic mail, and then

subsequently using the fruit of that illegal

search and seizure, plaintiff’s Fourth Amendment

rights were violated.

Second Amended Complaint ¶¶ 17-19, 32, and 35-36. Taking

plaintiff’s allegations as true and drawing all reasonable

inferences in plaintiff’s favor, the court found that a fair

reading of plaintiff’s complaint is that Beck’s acquisition of

Brodnik’s emails was done at the behest and with the

encouragement of defendant Lanham, thereby transforming her

action into government action. Specifically, the court stated:

According to the complaint, in seizing the

emails, Beck was encouraged to do so by Lanham

and, therefore, could be considered an agent of

3

the government. The viability of Brodnik’s Bivens

claim hinges on whether Beck was acting as an

agent of the government when she seized

plaintiff’s emails. If she was, the Fourth

Amendment is implicated. If she was not, there is

no Fourth Amendment violation and plaintiff’s

Bivens claim is subject to dismissal.

For this reason, the court deems it necessary

to allow limited discovery on this issue so that

the court can determine whether to allow

plaintiff’s Bivens claim to proceed. See

Crawford-El v. Britton, 523 U.S. 574, 600 (1998)

(“[T]he judge should give priority to discovery

concerning issues that bear upon the qualified

immunity defense, such as the actions that the

official actually took, since that defense should

be resolved as early as possible.”). Where, as

here, a court finds that a “plaintiff has made

sufficiently specific factual allegations” and

“taking plaintiff’s allegations as true, plaintiff

has stated a violation of clearly established

law[,] . . . “[a]llowing limited discovery enables

the Court to resolve the issue of qualified

immunity in the manner envisioned by Crawford-

El.”). Delph v. Trent, 86 F. Supp.2d 572, 577

(E.D. Va. 2000).

ECF No. 83.

The parties engaged in limited discovery on the email

issue and the instant motions followed.

II. Analysis

With respect to plaintiff’s claims regarding Lanham’s

methods in obtaining his emails, Lanham argues that his actions

are entitled to qualified immunity. The defense of qualified

immunity shields a government official from liability for civil

monetary damages if the officer's conduct does not violate

clearly established statutory or constitutional rights of which a

4

reasonable person would have known. Wiley v. Doory, 14 F.3d 993,

995 (4th Cir. 1994); Smook v. Hall, 460 F.3d 768, 777 (6th Cir.

2006). The doctrine of qualified immunity protects government

officials "from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In Saucier v. Katz, 533 U.S. 194, 195 (2002), the Supreme

Court mandated a two-step sequence for resolving the qualified

immunity claims of government officials.

First, a court must decide whether the facts that

a plaintiff has alleged (see Fed. Rules Civ. Proc.

12(b)(6), (c)) or shown (see Rules 50, 56) make

out a violation of a constitutional right. 533

U.S., at 201, 121 S. Ct. 2151. Second, if the

plaintiff has satisfied this first step, the court

must decide whether the right at issue was

"clearly established" at the time of defendant's

alleged misconduct. Ibid. Qualified immunity is

applicable unless the official's conduct violated

a clearly established constitutional right.

Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009). The Court

has held that courts may exercise discretion in deciding which of

the two Saucier prongs “should be addressed first in light of the

circumstances in the particular case at hand.” See id. at 818.

“[T]he rigid Saucier procedure comes with a price. The procedure

sometimes results in a substantial expenditure of scarce judicial

resources on difficult questions that have no outcome on the

case. There are cases in which it is plain that a constitutional

5

right is not clearly established but far from obvious whether in

fact there is such a right.” Id.

Under the first prong, a court must determine whether the

facts as alleged, taken in the light most favorable to plaintiff,

demonstrate the violation of a constitutional right. Saucier,

533 U.S. at 201 (“Taken in the light most favorable to the party

asserting the injury, do the facts alleged show the [state

actor’s] conduct violated a constitutional right?”). If the

allegations do not give rise to a constitutional violation, no

further inquiry is necessary. Id.

A right is clearly established when it has been

authoritatively decided by the Supreme Court, the appropriate

United States Court of Appeals, or the highest court of the state

in which the action arose. Edwards v. City of Goldsboro, 178

F.3d 231, 251 (4th Cir. 1999). The relevant, dispositive inquiry

is whether it would be clear to a reasonable person that the

conduct was unlawful in the situation he confronted. Saucier v.

Katz, 533 U.S. 194, 195 (2002). "Clearly established" does not

mean that "the very action in question has previously been held

unlawful," but requires the unlawfulness of the conduct to be

apparent "in light of preexisting law." Wilson v. Layne, 526

U.S. 603, 615 (1999).

The responsibility imposed on public officials to

comply with constitutional requirements is

commensurate with the legal knowledge of an

objectively reasonable official in similar

6

circumstances at the time of the challenged

conduct. It is not measured by the collective

hindsight of skilled lawyers and learned judges. .

. . "Officials are not liable for bad guesses in

gray areas; they are liable for transgressing

bright lines." Maciarello v. Sumner, 973 F.2d

295, 295 (4th Cir. 1992), cert. denied, 506 U.S.

1080 (1993).

Jackson v. Long, 102 F.3d 722, 730-31 (4th Cir. 1996); see also

Williams v. Hansen, 326 F.3d 569, 578-79 (4th Cir. 2003) (holding

that for purposes of qualified immunity, executive actors are not

required to predict how the courts will resolve legal issues).

"In determining whether the specific right allegedly violated was

`clearly established,' the proper focus is not upon the right at

its most general or abstract level, but at the level of its

application to the specific conduct being challenged.'" Wiley v.

Doory, 14 F.3d 993, 995 (4th Cir. 1994)(quoting Pritchett v.

Alford, 973 F.2d 307, 312 (4th Cir. 1992)).

Plaintiff’s Bivens claim is that defendants Lanham and

Beck violated his Fourth Amendment right to be protected from

unreasonable searches and seizures by “illegally” accessing his

email. The Fourth Amendment guarantees that, “The right of the

people to be secure in their persons, houses, paper, and effects,

against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.”

U.S. Const. amend. IV; Minnesota v. Carter, 525 U.S. 83, 88

7

(1998). To establish a violation of his rights under the Fourth

Amendment, Simons must first prove that he had a legitimate

expectation of privacy in the place searched or the item seized.

See Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v.

Rusher, 966 F.2d 868, 873-74 (4th Cir. 1992).

In order to prove a legitimate expectation of privacy,

Brodnik must show that his subjective expectation of privacy is

one that society is prepared to accept as objectively reasonable.

See California v. Greenwood, 486 U.S. 35, 39 (1988). A

government action constitutes a “search” only if it infringes on

an expectation of privacy that society considers reasonable.

United States v. Jacobsen, 466 U.S. 109, 113 (1984). “Thus, the

government must obtain a warrant before inspecting places where

the public traditionally expects privacy, like the inside of a

home or the contents of a letter.” In re § 2703(d) Order, 787 F.

Supp.2d 430, 439 (E.D. Va. 2011)); see also United States v.

Karo, 468 U.S. 705, 714 (1984) (warrant required to use

electronic location-monitoring device in a private home); Kyllo

v. United States, 533 U.S. 27, 34 (2001) (warrant required to use

publically unavailable, sense-enhancing technology to gather

information about the interior of a home); Jacobsen, 466 U.S. at

114 (warrant required to inspect the contents of sealed letters

and packages); United States v. Warshak, 631 F.3d 266, 287–89

8

(6th Cir. 2010) (extending Fourth Amendment protection to the

contents of email communications).

The court has already held that Brodnik had a legitimate

expectation in the privacy of his emails. Furthermore, it was

clearly established that as of the time Lanham began his

investigation, on or about 2002 or later, that he needed a

warrant to obtain Brodnik’s emails. As the court previously

found, the viability of Brodnik’s Bivens claim turns on whether

Beck was a state actor when she accessed Brodnik’s emails. The

court finds she was not.

Lanham testified that the first time he met Beck was on

March 20, 2002. Deposition of Robert Lanham, February 2, 2017,

at 116 (ECF No. 103-1) (hereinafter “Lanham Depo. at ___”).4

Beck testified that she had accessed Brodnik’s email on two

occasions after her employment ended -- once in Lanham’s presence

and on an earlier occasion outside his presence. Deposition of

Deborah Beck, February 2, 2017, at 6-7, 11 (ECF No. 103-2)

(hereinafter “Beck Depo. at ___”). The evidence is undisputed

that Lanham did not know Beck had accessed Brodnik’s email until

he asked her where she had gotten a certain document (the will)

and Beck told him. Lanham testified repeatedly and unequivocally

4 Brodnik has objected to defendant’s filing of the

deposition transcripts in their entirety. However, more often

than not, the court directs the parties to file the full

deposition transcripts and would have done so in this case.

9

that he did not tell Beck to access Brodnik’s email nor did he

encourage her to do so. Lanham further testified that when he

found out that she had accessed Brodnik’s email, he told Beck not

to do it again. Specifically, he testifed:

Q: Did you ever access Brodnik’s e-mail account

without his retort?

A: Absolutely not.

Q: Did you ever tell Deborah Beck that she

should access Doctor Brodnik’s e-mail

account?

A: That she should or shouldn’t?

Q That she should.

A: No.

Q: Okay. In fact, you directed her not to

access Brodnik’s e-mail account.

A: Yes.

Q: And you did that at your first meeting on

March 20, 2002, correct?

A: Yes.

Q: And then you followed up and again

admonished her not to access his e-mail

account in June of 2002, correct?

A: I did.

Q: Are you aware whether or not Ms. Beck –

when you met with her in March of 2002,

were you aware at that moment, during that

meeting, whether or not Ms. Beck had in fact accessed Doctor

A: No.

Q: Okay. Was that a general statement you

would make to a witness?

10

A: Any time that I had a witness who had

access to records in an office or

something like that, if they no longer

worked there, if there was some indication

that maybe they were gonna try to get

something and it was not legal, I would

advise them, and that’s what I did with

her about the e-mail when I realized what

she had done.

Q: And when did you realize what she had

done?

A: After she had logged in, pulled up the

document we were looking at and I asked

her, you know, “What is this? Where did

it come from?”

Lanham Depo. at 118-19.

Upon repeated questioning, Lanham continued to maintain

that Beck accessed Brodnik’s email without his knowledge or

assent.

A: [T]here was a time when Ms. Beck showed me

– and I don’t remember which meeting it

was –

Q: All right. Showed you what?

A: – a will – or maybe it was two wills. It

was a document that Anthony Kritt had

prepared. And I noticed that the document

was prepared after [Beck] had left the

employ of Doctor Brodnik and it – you

know, it struck me.

And I said, “How did you get this?” And I

can’t recall – I can’t recall if it was that

first meeting or the second meeting.

Q: Okay. Do you remember anything else?

A: She went to her computer and did

something, which I now know she was

11

logging into, apparently, Doctor Brodnik’s

email account.

Q: You say you now know. You knew at the

time of the trial, the criminal trial,

didn’t you?

A: Yes.

Q: You were asked about that.

A: I did not know when she did this what she

was doing. I asked her where the document

came from, and she went to her computer.

I did not know what she was doing. I didn’t

know if it was a file on her computer. I did

not know until I asked her, “What is this?

Where did this come from?”

Q: And this is at one of the meetings that

you had with her. And what do you

remember, if anything, she said?

A: Like I said, she went to the computer, she

pulled up this document, and I asked her

something like, “What is this? Where did

it come from?” And she said it was Doctor

Brodnik’s e-mail account.

Q: All right. And that was either the March

2002 or the June 2002 – or I think you may

have said July 2002 meeting with Ms. Beck.

Right?

A: Yeah. I’m not sure when the two meetings

took place. I’m pretty sure the first one

was in March.

Q: All right. And so do you remember

anything else?

A: The thing about the – her getting into the

e-mail was probably in the first meeting.

* * *

Q: Have we covered it?

12

A: Everything I remember about?

Q: Your meeting with Ms. Beck. If you want

to say on both occasions or one occasion

or differentiate between the two, that’s

fine.

A: . . . I’m not sure but I believe that

she gave me records at that meeting, but I

can’t specifically identify what they

were. I just – it was either that meeting

or the second meeting, she gave me like a

– like a shopping bag of records.

I advised her after she accessed the e-mail

account and told me that’s what it was that

she could not do that anymore, not to do it

anymore.

Lanham Depo. at 23-25.

Lanham’s testimony did not waver on this point: Lanham

maintained that he told Beck not to access Brodnik’s email.

Q: All right. Do you recall when you first

determined that Ms. Beck had accessed

Doctor Brodnik’s e-mail if you told her

not to do it anymore?

A: I absolutely did.

Q: Why?

A: Because of everything you just said. I am

not allowed to access someone’s e-mail

account without their permission unless I

have some authority to do it. And I did

not have any authority to do so.

Q: Yeah, we just have to put this on the

record. We’re both on the same page here.

But I wanted to make certain, you know,

you understood that. So there isn’t any

question about that. If Doctor – if the

government wanted to access Doctor

Brodnik’s e-mail, it would have had to

13

have gone before a judge or used some

judicial method - warrant or Grand Jury

subpoena - to attempt to get that

information. Right?

A: Yes.

Q: Okay. And you believe that Ms. Beck,

through Doctor Brodnik’s e-mail, acquired

information about Doctor Brodnik’s will?

A: I think that’s what it was.

Lanham Depo. at 34-35.

Lanham’s testimony is internally consistent on this issue

and there was no ambiguity. Once he found out that Beck had

accessed Brodnik’s email, he told her not to do it again.

Q: All right. Her accessing Doctor Brodnik’s e-mail

account was a big no-no, wasn’t it?

A: For me, yes.

Q: Yes. And so it was of such a significant

issue, why didn’t you make note of it in

your handwritten notes?

A: Because that is one of the few things that

I remember to this day about that meeting.

* * *

Q: I see on the Deposition Exhibit 3, you say

to her not to log on to Brodnik’s e-mail

account and view his mail anymore, right?

A: Yes.

Lanham Depo. at 62-63.

Q: And you – Ms. Beck is telling you about

changes to Doctor Brodnik’s will, correct?

A: Yes.

14

Q: And then there’s also a reference where it

says, “Beck obtained this information from

Brodnik’s e-mail.” Right?

A: Yes.

Q: And then you say, “I reminded Beck she was

not supposed to be looking at his e-mail

anymore.” Right?

A: Yes.

Lanham Depo. at 84.

Furthermore, Lanham’s testimony was also clear that he

had no reason to believe that Beck accessed Brodnik’s email after

he told her not to do so.

Q: Did you receive any indication in writing after

June of 2012 that Ms. Beck was accessing Doctor

Brodnik’s e-mails again?

A: I didn’t receive it in writing, and I

didn’t receive anything from anyone

indicating that she was doing that.

Lanham Depo. at 88-89.

Q: And there’s no way really to know if after

– except for looking at the documents and

trying to make that educated guess, after

June of 2002, any of the other things she

sent you came from the e-mails. There’s

no way to determine that, right?

A: If I had suspected that that had happened,

just like I did with the wills - which

were of no use - I would have instructed

her and told her, “We told you not to do

that any more,” and I would have went to

the AUSA and said, “Look, we’ve got a

problem here.”

Q: Did you do that?

A: No, because it never happened.

15

Q: You don’t know that she didn’t access it

again.

A: Okay, you asked me did I go to the AUSA

and say that she had accessed his e-mail.

Q: Yes.

A: And I said it never happened, I never did

that because I am unaware of her accessing

his e-mail account after that one time.

Lanham Depo. at 94-95.

Q: And how do you know that she had accessed

the e-mail account by looking at

Deposition Exhibit 3?

A: Because that’s where I wrote in there that

I’d served her with a subpoena and I told

her not to take any documents out of the

office, and I explained to her it would

cause problems, and I told her not to

access the e-mail account anymore.

Q: And do you know how it was that you

determined that she had logged into

Brodnik’s e-mail account?

A: I asked her.

Q: Okay.

A: Otherwise I wouldn’t have known.

Q: Okay. Did she show you any e-mails at

that time? At this March 20th, two

thousand interview.

A: I don’t think she did, because she – I

asked her about the document and she

brought the document up, and once she

brought the document up and I asked where

it came from, then everything else was off

limits. We couldn’t go any father.

Told her to log out of it and not to do it

anymore.

16

Lanham Depo. at 122-23.

Q: Okay. Are you aware of whether Ms. Beck

accessed Brodnik’s e-mail account more

than once?

A: No. The one time that, you know, I

cautioned her not to do it anymore was the

only time that – well, it was the last

time. I think she had done it before, but

I didn’t know anything about any of it

until the time she did it in my presence.

Q: Okay. And in fact, you told her not to do

that.

A: Yes. At that point, when I became aware

of it.

Lanham Depo. at 126-27.

Beck testified in a similar vein – that Lanham never told

her to access Brodnik’s email and that, when he found out she

had, he admonished her not to do so again.

Q: Tell me how many times you – after your

employment ended with Doctor Brodnik or

Bluefield Women’s Center how many times

you accessed his e-mail account.

A: Actually, it may have been two. I was

thinking one. But the reason I say two is

because the only reason I accessed it was

to see if I still had access before Mr.

Lanham came with the subpoena.

Beck Depo. at 6-7.

Q: Okay. When you accessed Doctor Brodnik’s

e-mail, whichever time it was –

A: Uh-huh.

Q: – you say, Mr. Lanham was there, right?

17

A: The one time. The first time that I did

it was – I was just trying to see if this

was information – as a perfectionist, I’m

not gonna give you bad information –

Q: My question was: Mr. Lanham was there?

A: The second time.

Q: The second time Mr. Lanham was there.

A: Yeah, because I handed it to him.

Q: Right.

A: I said, “I can’t believe he’s using my

password.”

Q: Right. And then what did Mr. Lanham say?

A: He told me not to do it anymore, and he

asked me, had I done it previously, and I

said, “Yes, when I checked to see if this

worked yesterday” – I think it was like

yesterday.

* * *

Q: And he was standing there while you were

accessing it.

A: Yes, but I didn’t tell him what I was

doing. But I did go and key it in.

Beck Depo. at 32-34.

Upon repeated questioning, Beck’s testimony likewise

remained consistent on this issue:

Q: And before you testified that you accessed

the e-mail account –

A: Uh-huh.

Q: – this network account –

A: Uh-huh.

18

Q: – using your e-mail and your log-in and

password –

A: Uh-huh.

Q: – because you had been served with a

subpoena –

A: Yes.

Q: – and it was your understanding that some

of the documents that were irrelevant were

in this – on this network.

A: Could – you know, my understanding – my

point was that this might be something

that I had, this was information I had.

And if it was something that was supposed

to be in part of the subpoena, then that

was the way I looked at it, you know.

Q: Okay.

A: So yeah.

Q: But Agent Lanham never told you to access

–

A: No, no ma’am.

Q: – this network.

A: Actually, he said, “Have you done this

before?” And I said, “No.” And I had

not, except for just that night before.

And then he said, “Well, don’t do it

again.”

Q: Okay.

A: And I think he told me then, you know,

that – not to – he told me not to do it.

He said, “Don’t do this again.” He said,

“Don’t ever get into this again.” And I

didn’t.

Q: Okay. And you mentioned before, as you

were testifying to Mr. Harris’ questions,

19

that at some point in time, you were

having a conversation – whether it was in

the kitchen or at some point, somewhere in

your house –

A: Uh-huh.

Q: – and then you walked over to the den and

accessed –

A: Yes, yes.

Q: – your computer.

A: Yes.

Q: And you went into the network account.

A: Yes.

Q: How did Agent Lanham react when you told

him that you had gone into this – into the

network?

A: Well, he was visibly upset. I mean, he

said – that’s what he asked me, he said,

“Have you done this before?” That was his

first – and I said, “No.” And that’s when

he said, “Well, don’t do it again,” you

know. And so I didn’t. Yeah.

Q: I mean, he made it clear to you not to do

this again.

A: Yes, he made it very clear, yes, yes.

Beck Depo. at 57-59. In her deposition, Beck maintained that her

decision to access the email was her belief, albeit mistaken,

that it was covered by the subpoena.5

5 In her response to plaintiff’s interrogatories, Beck

stated: “Deborah Beck acted at the direction of Robert Lanham who

presented himself and his credentials to her. She believed that

he had apparent authority to direct her to act both in interview

and to access an email account which she established and had the

20

Q: And – but it’s your testimony here today

that at no point in time did Agent Lanham

ever tell you to access –

A: No.

Q: – this e-mail.

A: No, no, no, no, no. No, he didn’t even

know about it until, like I said, I think

I went in there and was getting my stuff

together and I said, “Oh, by the way,” I

think – I said, “Oh, by the way, there’s

an e-mail address,” and I typed that in

very quickly while I was talking.

But he did – he told me, “Have you done this

before? Don’t do it again.” And I didn’t.

Beck Depo. at 64.

“We start with the presumption that conduct by private

actors is not state action.” Florer v. Congregation Pidyon

Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011). “[Plaintiff]

bears the burden of establishing that Defendants were state

actors.” Id.; see also United States v. Aldridge, 642 F.3d 537,

541 (7th Cir. 2011) (“The defendant bears the burden of proving

agency, based on all the circumstances.”); United States v.

Ellyson, 326 F.3d 522, 527 (4th Cir. 2003) (“The burden of

proving that a private party acted as an agent or instrument of

the government is on the defendant.”); Mertens v. Shensky, No.

password to access and which account she had used while within

her employment with the plaintiff.” (ECF No. 102-1). During her

deposition, Beck explained that, in answering the interrogatory

as she did, she thought that the search of the email was covered

by the subpoena and not because Lanham had directed her to access

the email. Beck Depo. at 62-65.

21

CV05-147-N-EJL, 2006 WL 173651, *3 (D. Idaho Jan. 23, 2006) (“The

plaintiff bears the burden of showing that a private person is a

state actor for the purposes of § 1983 [or Bivens].”). “Whether

an agency relationship exists is a fact-intensive inquiry that is

guided by common law agency principles.” Ellyson, 326 F.3d at

527.

In this case, there is no Fourth Amendment violation

because Beck, a private citizen, accessed Brodnik’s email of her

own volition. There is simply no evidence that Lanham encouraged

Beck to do so or that he knew what she was doing until after the

fact. The Fourth Amendment does not apply “to a search or

seizure, even an unreasonable one, effected by a private

individual not acting as an agent of the Government or with the

participation or knowledge of any government official.” United

States v. Jacobsen, 466 U.S. 109, 114 (1984) (quoting Walter v.

United States, 447 U.S. 649, 662 (1980)). As our appeals court

has explained:

Of course, it is private individuals, not City

officials, who have actually interfered with

Presley’s possessory interests here. Although

private actions generally do not implicate the

Fourth Amendment, when a private person acts as an

agent of the Government or with the participation

or knowledge of any governmental official, then

the private person’s acts are attributed to the

government. The government need not compel nor

even involve itself directly in the private

person’s actions.

22

Presley v. City of Charlottesville, 464 F.3d 480, 487 (4th Cir.

2006) (internal citations and quotations omitted).

The undisputed evidence is that Lanham did not acquiesce

in Beck’s search of Brodnik’s email nor did he know about it

prior to or as it was happening.6 In fact, upon finding out

about it, he told her not to do it again. Beck testified that

she accessed Brodnik’s email, not because Lanham told her to, but

because (1) she thought it fell under the scope of the subpoena

she received and (2) she was motivated by a desire to protect

herself. “One highly pertinent consideration [to whether an

6 Brodnik’s attempt to cast Beck as a government agent after

the search of Brodnik’s email fails. The pertinent inquiry is

whether the private actor was a government agent at the time of

the search. Cf. United States v. Kinney, 953 F.2d 863, 865 (4th

Cir. 1992) (rejecting notion “that even if the search was

originally private in nature, the police, in their subsequent

participation, exceeded the scope of the initial private search,

thereby making their actions unlawful.”). The emails between

Beck and Lanham were all dated after the search of Brodnik’s

email occurred. See ECF Nos. 107-1, 107-2, and 107-3. Such

evidence is insufficient to show that Lanham knew of and

acquiesced in Beck’s email search. See United States v. Jarrett,

338 F.3d 339, 346 (4th Cir. 2003) (“Although, as the Government

conceded at oral argument, the [ ] email exchange probably does

constitute the sort of active Government participation sufficient

to create an agency relationship going forward (absent other

countervailing facts), the district court erred in relying on

this exchange to find that the Government knew of and acquiesced

in the Jarrett search. This is so because Unknownuser’s email

exchange with Faulkner took place after Unknownuser had hacked

into Jarrett’s computer, after the fruits of Unknownuser’s

hacking had been made available to the FBI. . . . Thus,

Faulkner’s knowledge and acquiescence was entirely post-search.

Such after-the-fact conduct cannot serve to transform the prior

relationship between Unknownuser and the Government into an

agency relationship with respect to the search of Jarrett’s

computer.”) (emphasis in original).

23

agency relationship exists] is `whether the government knew of

and acquiesced in the intrusive conduct and whether the private

party’s purpose for conducting the search was to assist law

enforcement efforts or to further her own ends.” United States

v. Ellyson, 326 F.3d 522, 527 (4th Cir. 2003) (quoting United

States v. Feffer, 831 F.2d 734, 739 (7th Cir. 1987)).

Furthermore, “[p]re-search contact between a government official

and a private citizen, whether or not intended by the official to

prompt the citizen to render some type of assistance, does not,

by itself, turn a private party into an agent of the government.”

Mutual Med. Plans, Inc. v. County of Peoria, 309 F. Supp. 2d

1067, 1076 (C.D. Ill. 2004).

“In order to run afoul of the Fourth Amendment,

therefore, the Government must do more than passively accept or

acquiesce in a private party’s search efforts. Rather, there

must be some degree of participation in the private search.”

United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003). As

the court explained:

Viewed in the aggregate, then, three major

lessons emerge from the case law. First, courts

should look to the facts and circumstances of each

case in determining when a private search is in

fact a Government search. Second, before a court

will deem a private search a Government search, a

defendant must demonstrate that the Government

knew of and acquiesced in the private search and

that the private individual intended to assist law

enforcement authorities. Finally, simple

acquiescence by the Government does not suffice to

transform a private search into a Government

24

search. Rather, there must be some evidence of

Government participation in or affirmative

encouragement of the private search before a court

will hold it unconstitutional. Passive acceptance

by the government is not enough.

Id. at 345-46. In this case, not only is there a lack of

government participation or encouragement, there is also vehement

government opposition to the search as evidenced by Lanham’s

directive to Beck not to access Brodnik’s email in the future.

Furthermore, to the extent that plaintiff makes much of

the fact that Lanham kept the printout obtained from Beck’s

search of Brodnik’s email, it does not alter the court’s

analysis. “[E]vidence secured by private searches, even if

illegal, need not be excluded from a criminal trial.” United

States v. Ellyson, 326 F.3d 522, 527 (4th Cir. 2003); see also

United States v. Wolfson, 160 F. App’x 95, 97-98 (2d Cir. 2005)

(“[T]he subsequent seizure of the boxes was quite clearly carried

out without the government’s knowledge or encouragement, and

hence, does not implicate the Fourth Amendment.”); United States

v. Kinney, 953 F.2d 863, 865 (4th Cir. 1992) (“The Fourth

Amendment is directed exclusively at state action and evidence

secured by private searches, even if illegal, need not be exluded

from a criminal trial.”).

Likewise, plaintiff’s argument that Beck’s possible

status as a government informant is of no legal moment. It seems

clear that Beck was a confidential informant for the government.

25

See Lanham Depo. at 102-03. Lanham conceded as much. See id.

However, the allegations in the complaint – that Lanham

financially incentivized Beck to access Brodnik’s email – are not

borne out by the record because there is no evidence that Beck

was a paid government informant. See Lanham Depo. at 30-31, 102;

Beck Depo. at 14-15. Furthermore, there is no hard and fast rule

that the actions of a government informant, paid or otherwise,

always rise to the level of government action. See Hiser v. City

of Bowling Green, 42 F.3d 382, 383 (6th Cir. 1994) (acknowledging

that the court has “refused to establish a per se rule that the

activities of paid government informants must always be

considered government action.”) (internal quotation and citation

omitted); Ghandi v. Police Dept. of City of Detroit, 823 F.2d

959, 963 (6th Cir. 1987) (“[W]e reject plaintiffs’ invitation to

establish a per se rule that the activities of paid government

informants must always be considered government action.”). In

any event, informant or not, Lanham could not have been clearer

that Beck was not to access Brodnik’s email.

Q: Okay. But I want to get back to something

you said, which was, if she – if she was

an informant, she would not have been

permitted to access the e-mail. And –

A: That is irrelevant.

Q: It’s not irrelevant. I can have her read

it back, or we’ll stand on what you said

earlier.

A: If I said that –

26

Q: All right.

A: – fine.

Q: All right.

A: But what I’m trying to tell you is: It

doesn’t matter if she’s an informant, if

she is the president of the United States,

an attorney or whatever else. I would

have instructed her “Do not access his e-

mail.”

Because I could not do that, and since she

had talked to me, I knew that we would be

right where we’re at now with an attorney

trying to say that she was my agent –

Q: Well –

A: – and she was not. And she did not act at

my direction to access that e-mail.

* * *

A: We’re speaking two different languages

here. You’re speaking what that says.

She is termed a confidential informant to

try to protect her identity. The word

“informant” that you’re hung up on is –

it’s a technical term for federal law

enforcement and all law enforcement, is a

person who has been taken in and is –

records are kept, payments are made to

them, etc., etc., etc.

Q: But –

A: That’s what you’re getting hung up on.

And it doesn’t matter – it doesn’t matter

what she was, as I’ve said. I would have

told her, “Don’t access the e-mail.”

Lanham Depo. at 100-03.

As the Fourth Circuit has noted, there must be “clear

indices of [Lanham’s] encouragement, endorsement, and

27

participation . . . to implicate the Fourth Amendment.” Presley

v. City of Charlottesville, 464 F.3d 480, 488 (4th Cir. 2006).

The uncontroverted evidence in this case is that Lanham neither

encouraged, endorsed, or participated in Beck’s search of

Brodnik’s email. For these reasons, Lanham’s motion for summary

judgment is granted.

III. Conclusion

For the reasons expressed above:

1) Plaintiff's Motion For Court to Make Finding As to

Whether or Not Defendant Deborah Beck is a State

Actor for Purposes of Bivens Liability (construed

as a motion for partial summary judgment in

plaintiff’s favor) is DENIED;

2) Lanham’s Motion for Summary Judgment as to Count I

is GRANTED; and

3) Pursuant to concerns regarding HIPAA and

confidential medical information, ECF Nos. 103-1

and 103-2 are to be filed under SEAL.

The Clerk is directed to send a copy of this Memorandum

Opinion and Order to counsel of record.

IT IS SO ORDERED this 30th day of March, 2018.

ENTER:

Raut A Dols

David A. Faber

Senior United States District Judge

28