Brook Mallak v. Anthony Runde

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-1815

___________________________

Brook Mallak

lllllllllllllllllllll Plaintiff - Appellee

v.

City of Baxter; City of Brainerd; Cass County; Crow Wing County; City of

Fridley; City of Little Falls; City of St. Cloud; City of Staples; Department of

Public Safety of the State of Minnesota; Chad Visser, acting in his individual

capacity as an Officer of the Baxter Police Department; Julie McCullough, acting

in her individual capacity as an employee of the Brainerd Police Department; Joel

Reed, acting in his individual capacity as an Officer of the Brainerd Police Department

lllllllllllllllllllll Defendants

Anthony Runde, acting in his individual capacity as an Officer of the Brainerd

Police Department; Perry Jones, acting in his individual capacity as a Detective for

the Fridley Police Department; David Darling, acting in his individual capacity as

an Officer of the St. Cloud Police Department

lllllllllllllllllllll Defendants - Appellants

Tyler Burke, acting in his individual capacity as an employee of the Crow Wing

County Sheriff's Office; Amy Edberg, acting in her individual capacity as an

employee of the Crow Wing County Sheriff's Department; Ryan Goff, acting in his

individual capacity as a corrections officer for the Crow Wing County Sheriff's

Office and in his individual capacity as an Officer of the City of Staples Police

Department; Gary Gutenkauf, acting in his individual capacity as an Officer of the

Crow Wing County Sheriff's Office; Ginger Heurung, acting in her individual

capacity as a corrections officer for the Crow Wing County Sheriff's Office; Derek

Lavoy, acting in his individual capacity as an investigator for the Crow Wing

County Sheriff's Office; Illissa Ramm, acting in her individual capacity as an

Assistant County Attorney in the Crow Wing County Attorney's Office; Michael

Tripplet, acting in his individual capacity as a corrections officer for the Crow

Wing County Sheriff's Office; Karri Turcotte, acting in her individual capacity as

an employee of the Crow Wing County Sheriff's Office; Jon Vukelich, acting in

his individual capacity as a Sergeant of the Crow Wing County Sheriff's Office;

Ryan Barnett, acting in his individual capacity as an employee of Central

Minnesota Community Corrections; Dawn Chouinard, acting in her individual

capacity as an employee of Central Minnesota Community Corrections; Shannon

Wussow, acting in her individual capacity as an employee of Central Minnesota

Community Corrections; Colleen Berens; Laura Johnson; Lori Lucas; Christine

Madsen; Joan Smith; Central Minnesota Community Corrections; John and Jane

Does (1-500), acting in their individual capacities as supervisors, officers,

deputies, staff, investigators, employees or agents of the other law-enforcement

agencies; Entity Does (1-50), including cities, counties, municipalities, and other

entitites sited in Minnesota and federal departments and agencies

lllllllllllllllllllll Defendants

___________________________

No. 15-1819

___________________________

Brook Mallak

lllllllllllllllllllll Plaintiff - Appellee

v.

City of Baxter; City of Brainerd; Cass County; Crow Wing County; City of

Fridley; City of Little Falls; City of St. Cloud; City of Staples; Department of

Public Safety of the State of Minnesota; Chad Visser, acting in his individual

capacity as an Officer of the Baxter Police Department; Julie McCullough, acting

in her individual capacity as an employee of the Brainerd Police Department; Joel

Reed, acting in his individual capacity as an Officer of the Brainerd Police

Department; Anthony Runde, acting in his individual capacity as an Officer of the

Brainerd Police Department; Perry Jones, acting in his individual capacity as a

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Detective for the Fridley Police Department; David Darling, acting in his

individual capacity as an Officer of the St. Cloud Police Department; Tyler Burke,

acting in his individual capacity as an employee of the Crow Wing County

Sheriff's Office; Amy Edberg, acting in her individual capacity as an employee of

the Crow Wing County Sheriff's Department

lllllllllllllllllllll Defendants

Ryan Goff, acting in his individual capacity as a corrections officer for the Crow

Wing County Sheriff's Office and in his individual capacity as an Officer of the

City of Staples Police Department

lllllllllllllllllllll Defendant - Appellant

Gary Gutenkauf, acting in his individual capacity as an Officer of the Crow Wing

County Sheriff's Office; Ginger Heurung, acting in her individual capacity as a

corrections officer for the Crow Wing County Sheriff's Office; Derek Lavoy,

acting in his individual capacity as an investigator for the Crow Wing County

Sheriff's Office; Illissa Ramm, acting in her individual capacity as an Assistant

County Attorney in the Crow Wing County Attorney's Office; Michael Tripplet,

acting in his individual capacity as a corrections officer for the Crow Wing County

Sheriff's Office; Karri Turcotte, acting in her individual capacity as an employee

of the Crow Wing County Sheriff's Office; Jon Vukelich, acting in his individual

capacity as a Sergeant of the Crow Wing County Sheriff's Office; Ryan Barnett,

acting in his individual capacity as an employee of Central Minnesota Community

Corrections; Dawn Chouinard, acting in her individual capacity as an employee of

Central Minnesota Community Corrections; Shannon Wussow, acting in her

individual capacity as an employee of Central Minnesota Community Corrections;

Colleen Berens; Laura Johnson; Lori Lucas; Christine Madsen; Joan Smith;

Central Minnesota Community Corrections; John and Jane Does (1-500), acting in

their individual capacity as supervisors, officers, deputies, staff, investigators,

employees or agents of the other law-enforcement agencies; Entity Does (1-50),

including cities, counties, municipalities, and other entitites sited in Minnesota and

federal departments and agencies

lllllllllllllllllllll Defendants

____________

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Appeals from United States District Court

for the District of Minnesota - Minneapolis

____________

Submitted: March 15, 2016

Filed: May 19, 2016

____________

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

____________

GRUENDER, Circuit Judge.

Brook Mallak sued various municipalities and their employees under the

Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721-25, alleging that these

employees had accessed improperly her personal data on a number of occasions. The

defendants moved for summary judgment based on qualified immunity. The district

court1 granted the motion with respect to some of the defendants, but it denied

qualified immunity to those defendants for whom a genuine issue of fact remained

regarding the purpose for which they accessed Mallak’s data. The defendants denied

qualified immunity now appeal that denial. We dismiss the appeal for lack of

jurisdiction.

I.

The Minnesota Department of Vehicle Services (“DVS”), a division of the

Department of Public Safety (“DPS”), maintains a database of information related to

Minnesota drivers. This information includes each driver’s name, date of birth,

1

The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota.

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driver’s license number, address, photograph, weight, height, social security number,

health and disability information, and eye color.

Mallak is a practicing attorney in Brainerd and Little Falls, Minnesota. In

2013, Mallak requested from DPS an audit report of accesses of her driver’s license

information. This report revealed that Minnesota municipal and state personnel had

accessed Mallak’s information approximately 190 times between 2003 and 2012.

Mallak sued various counties and municipalities whose employees had

accessed her data. She alleged that she had no interactions with law-enforcement

personnel that would have justified the access of her personal information. As a

result, she claimed, the accesses documented by the audit report violated her rights

under the DPPA, the United States Constitution, and Minnesota’s common-law right

of privacy.

Prior to the ruling that resulted in the instant appeal, the district court ruled on

several motions to dismiss Mallak’s suit. The court dismissed all DPPA claims based

on inquiries that occurred prior to a four-year statute-of-limitations period, as well as

the constitutional and common-law claims. The court permitted Mallak to proceed

with DPPA claims involving data accesses by five counties and six cities that

occurred within the statute-of-limitations period. After an initial phase of discovery,

these defendants moved for summary judgment on the basis of qualified immunity,

which the district court granted in part and denied in part based on the evidence

available with respect to each claim. The district court granted summary judgment

to those officers who offered a definitive, uncontested, and permissible explanation

for their accesses of Mallak’s data.2 However, the district court denied summary

2

For these accesses, the district court found no genuine dispute of material fact

as to whether the access was related to one of Mallak’s several interactions with law

enforcement during the relevant time period.

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judgment with respect to accesses by four law-enforcement officers: Officer Anthony

Runde, Detective Perry Jones, Officer David Darling, and Officer Ryan Goff.

Officer Anthony Runde of the Brainerd Police Department accessed Mallak’s

data on September 8, 2009. Officer Runde’s affidavit stated that he was “confident”

that this access was in connection with a drug-related investigation of one of Mallak’s

associates. However, Officer Runde also knew Mallak because he had served with

her on a DWI court team, from which Mallak had resigned one week prior to Officer

Runde’s access of her data.

Detective Perry Jones of the Fridley Police Department accessed Mallak’s data

on June 28, 2011. Like Officer Runde, Detective Jones suggested that he may have

accessed Mallak’s data in connection with the investigation of Mallak’s associate.

However, Detective Jones and Mallak attended high school together, and Jones

previously had contacted Mallak to discuss legal matters.

Officer David Darling of the St. Cloud Police Department accessed Mallak’s

data on July 11, 2010. At the time of Officer Darling’s inquiry, Mallak’s child was

on life support at a hospital in St. Cloud. Officer Darling explained in his affidavit

that he could not remember his reason for accessing Mallak’s information.

Officer Ryan Goff of the Staples Police Department accessed Mallak’s data

twice on December 6, 2010. The computer used for these accesses was at the Crow

Wing County jail, where Officer Goff worked full time as a jailer. Mallak previously

had served on two committees that met at the jail and also visited her clients there on

occasion. However, Mallak maintains that she would not have been at the jail at the

time of Officer Goff’s accesses, nor would she have used the entrance that he claims

to have been monitoring.

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In the district court’s judgment, a genuine issue of material fact remained as to

whether the accesses of Mallak’s data by these four officers were “for a purpose not

permitted” under the DPPA. See 18 U.S.C. § 2724(a). According to the court, a grant

of summary judgment with respect to these accesses was premature, particularly when

Mallak had not yet had the opportunity to conduct meaningful discovery or take the

officers’ depositions. The defendants who were denied summary judgment appeal

this ruling, arguing that the district court erred in finding they were not entitled to

qualified immunity and that Mallak lacks standing to bring this suit.

II.

Qualified immunity shields a government official from liability unless his

conduct violates “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Because this entitlement constitutes an immunity from suit rather than merely

a defense to liability, the Supreme Court “repeatedly ha[s] stressed the importance of

resolving immunity questions at the earliest possible stage in litigation.” Hunter v.

Bryant, 502 U.S. 224, 227 (1991). “When there is no dispute among the parties as to

the relevant facts . . . a court should always be able to determine as a matter of law

whether or not an officer is eligible for qualified immunity . . . .” Pace v. City of Des

Moines, 201 F.3d 1050, 1056 (8th Cir. 2000). “We review de novo a district court’s

denial of summary judgment based on qualified immunity.” New v. Denver, 787 F.3d

895, 899 (8th Cir. 2015).

An order denying qualified immunity can be immediately appealable despite

the fact that it is interlocutory. Cooper v. Martin, 634 F.3d 477, 479-80 (8th Cir.

2011). As the Supreme Court made clear in Johnson v. Jones, however, our

interlocutory jurisdiction is limited. 515 U.S. 304, 319-320 (1995). A defendant

denied summary judgment based on qualified immunity may appeal the “purely legal

issue” of “whether the facts alleged . . . support a claim of violation of clearly

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established law.” Id. at 313 (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n.9

(1985)). However, a defendant “may not appeal a district court’s summary judgment

order [denying qualified immunity] insofar as that order determines whether or not

the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at 319-320.

Decisions subsequent to Johnson have clarified that we may hear an appeal of

an order denying qualified immunity where the record plainly forecloses the district

court’s finding of a material factual dispute. In Scott v. Harris, for example, the

Supreme Court held that it had jurisdiction to review a district court’s denial of

qualified immunity because irrefutable video evidence resolved any factual disputes

regarding the defendants’ conduct. 550 U.S. 372, 378 (2007). Similarly, in Plumhoff

v. Rickard, the Supreme Court held that it had jurisdiction to hear an appeal in which

“the record conclusively disprove[d]” the plaintiff’s proposed version of the events

in question. 572 U.S. ---,134 S. Ct. 2012, 2021-22 (2014). As a result, the appeal

presented “legal issues” that were “quite different from any purely factual issues that

the trial court might confront if the case were tried.” Id. at 2019.

Unlike in Johnson and Plumhoff, key factual questions in the present case are

both material and disputed. Mallak contends that the officers’ accesses of her data

violated the DPPA, which prohibits the access and use of motor vehicle records “for

a purpose not permitted” under the act. See 18 U.S.C. § 2724(a). According to

Mallak, because she had no interactions with law enforcement related to these

accesses of her information, the officers must have accessed her data for personal

reasons unrelated to their official duties. The appellants do not dispute that accessing

an individual’s data to satisfy some personal interest constitutes a violation of clearly

established law under the DPPA. Instead, they contend that Mallak failed to present

evidence creating a factual dispute regarding whether the officers accessed her data

for such an improper purpose.

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Rather than “conclusively disprove[]” Mallak’s claim, however, the record

includes several facts indicating that each officer might have accessed her data for an

improper purpose. See Plumhoff, 134 S. Ct. at 2021-22. For example, the record

shows that Mallak may have had some prior relationship with several of the officers

in this case. She attended high school with Officer Jones, and Officer Jones

previously had contacted her for legal advice.3 Mallak served on a DWI court team

with Officer Runde, and Officer Runde accessed Mallak’s data just one week after

she resigned from this position. Mallak also visited clients and served on two

steering committees at the jail where Officer Goff worked. In McDonough v. Anoka

County, we explained that this type of “relationship with particular officers” could

indicate that those officers had accessed an individual’s data for an improper purpose.

See 799 F.3d 931, 947 (8th Cir. 2015). McDonough also held that “a suspicious

access pattern,” such as an access “correspond[ing] with a significant event,” could

show that an officer had accessed DPS data inappropriately. Id. On the same day that

Officer Darling of the St. Cloud police department accessed Mallak’s data, Mallak’s

3

Officer Jones disputes whether accessing Mallak’s data in order to contact her

for legal advice would have constituted a violation of Mallak’s “clearly established

statutory or constitutional rights.” See Harlow, 457 U.S. at 818. He notes that the

DPPA permits officials to access data “for use in connection with” litigation. See 18

U.S.C. § 2721(b)(4). Not until 2013, Jones explains, did the Supreme Court hold that

this provision does not permit officials to access data for use in private legal matters.

See Maracich v. Spears, 570 U.S. ---, 133 S. Ct. 2191, 2209 (2013). Because this

decision came well after his alleged access of Mallak’s data, Jones argues, he would

not have violated clearly established law by using information in connection with his

personal legal affairs. Regardless of the merit of this argument, it is immaterial to the

present appeal because the record does not foreclose the possibility that Jones

contacted Mallak for some other impermissible purpose. Prior to addressing whether

any given purpose violated clearly established law, a court must determine Officer

Jones’s actual purpose in accessing Mallak’s data. The district court held that this

question presented a material factual dispute, and under Johnson we cannot

reevaluate that determination in the context of an interlocutory appeal. See 515 U.S.

at 319-20.

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son was admitted to a St. Cloud hospital and placed on life support. Officers

investigating this event could have had a legitimate reason for accessing Mallak’s

data, but no one from the St. Cloud Police Department was part of that investigation.

In addition, as the district court noted, none of the officers offered a definitive

explanation for why they accessed Mallak’s data. Officer Goff stated that he may

have accessed Mallak’s information in order to permit her to enter the Crow Wing

County jail, where Officer Goff worked as a jailer and where Mallak occasionally met

with clients. Mallak, however, disputes that she visited the jail at the time of Officer

Goff’s accesses, and she points out that the procedure requiring officers to look up

visitors’ data was not in place when Officer Goff made these inquiries. Officer Jones

stated that he “d[id] not recall” his reason for accessing Mallak’s data, but he

conceded that it was “possible [he] accessed her information with the intent of

contacting [her] in connection with a legal matter.” Similarly, neither Officer Runde

nor Officer Darling could recall with certainty why they accessed Mallak’s

information.

The district court denied the defendants qualified immunity because it found

that these facts gave rise to a genuine dispute regarding the officers’ purposes in

accessing Mallak’s data, particularly as Mallak had not yet had the opportunity to

take the officers’ depositions in order to inquire further into the circumstances of their

accesses. Under Johnson, we lack jurisdiction to reevaluate on interlocutory appeal

the district court’s determination that this question “sets forth a ‘genuine’ issue of fact

for trial.” See 515 U.S. at 319-20.

None of the applications of Johnson relied upon by the appellants leads us to

a contrary conclusion. In Lyons v. Vaught, for example, we evaluated only the legal

question of whether official conduct, as alleged in the plaintiff’s complaint,

constituted a violation of the First Amendment. 781 F.3d 958 (8th Cir. 2015).

Similarly, in Thompson v. King, we acknowledged our jurisdiction to review the

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appeal “only to the extent Appellants’ qualified immunity arguments raise an issue

of law.” 730 F.3d 742, 746 (8th Cir. 2013). We then proceeded to assess whether,

based on the facts established by the district court, the defendants had exhibited

deliberate indifference to a detainee’s medical needs. Id. at 746-49. Finally, in New

v. Denver, we determined that none of the facts disputed in the district court were

material to whether the defendant had a reasonable, good faith belief that he had

probable cause to arrest the plaintiff—a question that we held was an issue of law.

787 F.3d at 900-01.

Unlike these cases, the appellants’ entitlement to sovereign immunity hinges

on factual questions regarding the circumstances under which they accessed Mallak’s

personal information. The record does not foreclose the possibility that the officers

accessed Mallak’s data for a purpose not permitted by the DPPA. We thus lack

jurisdiction to reassess this factual dispute in the context of an interlocutory appeal.

See Johnson, 515 U.S. at 319-20.

IV.

For the foregoing reasons, we dismiss the appellants’ appeal for lack of

jurisdiction.4

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4

Because we lack jurisdiction over this appeal, we do not reach the appellants’

argument that Mallak lacks standing to sue under the DPPA. See Consul Gen. of

Republic of Indonesia ex rel. Salom v. Bill’s Rentals, Inc., 251 F.3d 718, 720 (8th Cir.

2001) (declining to address whether plaintiff had standing to bring suit after

determining that plaintiff’s interlocutory appeal contained a jurisdictional defect).

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