Larios v. Lunardi

[11] 12 UNITED STATES DISTRICT COURT 13 EASTERN DISTRICT OF CALIFORNIA [14] 15 TIMOTHY LARIOS, No. 2:15-cv-02451-JAM-DMC 16 Plaintiff, 17 v. ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY 18 SCOTT LUNARDI, KYLE FOSTER, JUDGMENT ROBERT J. JONES, [19] Defendants. [20] 21 In November 2015, Plaintiff filed a two-count complaint 22 against Joseph Farrow, the Commissioner of the California Highway 23 Patrol (“CHP”) and five CHP officers: Scott Lunardi, Mel Hutsell, 24 T. A. Garr, Kyle Foster, and R. J. Jones. Compl., ECF No. 1. He 25 alleged Defendants violated his rights under Section 1983 and 26 California Civil Code § 52.1 (“Bane Act”). The complaint set 27 forth several theories of liability on each claim, alleging 28 violations of the First, Fourth, Fifth, Sixth, Ninth, and 1 Fourteenth Amendments. Compl. ¶¶ 34-40. Defendants’ motions to 2 dismiss narrowed the scope of litigation. See ECF Nos. 12, 15, 3 24. The Court dismissed all of Plaintiff’s claims against 4 Lunardi, Foster, and Jones except the Bane Act and Section 1983 5 claims premised upon their alleged Fourth Amendment violations. 6 November 10, 2016 Memo. and Order, ECF No. 22. The Court also 7 dismissed Farrow, Hutsell, and Garr from the suit. Id.; May 15, 8 2017 Memo. and Order, ECF No. 28. 9 Defendants now request summary judgment on Plaintiff’s 10 remaining claims.1 Mot. for Summ. J. (“Mot.”), ECF No. 42. 11 Plaintiff filed an opposition to Defendants’ motion, Opp’n, ECF 12 No. 52, to which Defendants replied. Reply, ECF No. 53. For the 13 reasons discussed below, the Court grants Defendants’ motion for 14 summary judgment on Plaintiff’s Bane Act claim against Lunardi, 15 Jones, and Foster, as well as his Section 1983 claim against 16 Foster. The Court also grants Defendants’ motion for summary 17 judgment on Plaintiff’s Section 1983 claim against Lunardi and 18 Jones to the extent that it rests upon the theory that they 19 conducted an unconstitutional search. 20 The Court, however, finds Defendants did not address the 21 unlawful seizure theory of Plaintiff’s Fourth Amendment claim 22 until their reply brief. Reply at 6-8, ECF No. 53. The Court 23 will allow Plaintiff to file a surreply addressing Defendants’ 24 argument that the Court should grant summary judgment on his 25 claim that Defendants conducted an unlawful seizure by [26] 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for February 11, 2020. 1 downloading the contents of his personal phone onto a CHP 2 computer. Plaintiff must file his surreply within seven (7) days 3 of this Order. It need not include an “introduction” or “factual 4 background” section and shall not exceed ten (10) pages. 5 Defendants may not file a response. [6] 7 I. BACKGROUND 8 Plaintiff previously worked as a California Highway Patrol 9 (“CHP”) officer. Plf.’s Response to Defs.’ Statement of 10 Undisputed Facts (“RSUF”) ¶ 1, ECF No. 52-1. In the final two 11 years he worked for CHP, Plaintiff was an agent with the Shasta 12 Interagency Narcotics Task Force (“SINTF”). RSUF ¶ 2. In this 13 role, Plaintiff communicated with confidential informants. RSUF 14 ¶ 3. Under SINTF policy, “[a]n informant is a person, not a 15 member of law enforcement, who provides law enforcement 16 information or assistance concerning suspected criminal 17 activity.” RSUF ¶ 55 (citing SINTF Informant Management Policy 18 § 10.1). The policy prohibits agents from having relationships 19 with informants that are not “completely ethical and professional 20 in nature.” RSUF ¶ 56. An agent may not contact an informant 21 without other law enforcement present and may not be alone with 22 an informant absent prior approval. Id. 23 Plaintiff began communicating with confidential informant, 24 Tawnya Mellow, during SINTF’s investigation of a suspected 25 marijuana dealer named Nathan Santana. RSUF ¶ 9. Mellow 26 provided information that allowed Plaintiff to obtain a search 27 warrant for Santana’s residence. RSUF ¶ 10. Plaintiff executed 28 the warrant, uncovered contraband, and arrested Santana. Id. 1 The Shasta County Deputy District Attorney charged Santana with 2 three felony offenses. RSUF ¶ 10-11. 3 Plaintiff used his personal cell phone to communicate with 4 Mellow. RSUF ¶ 8. SINTF issues its agents cell phones to use 5 for “SINTF business” such as speaking with informants. RSUF ¶ 7. 6 Although SINTF policy allows agents to use their personal phones 7 for SINTF business, it prohibits them from storing state work on 8 their personal phones. RSUF ¶ 4(citing CHP General Order 9 100.95). Rather, agents who produce CHP work product on their 10 personal devices must then transfer that work to an electronic 11 data storage device. Id. CHP policy states, “[w]ork stored on 12 any type of electronic device is the property of the state and 13 must be relinquished on demand.” Id. Plaintiff received and 14 reviewed this policy when he was a SINTF agent. RSUF ¶ 5. 15 Plaintiff continued to speak with Mellow after Santana’s 16 arrest. RSUF ¶ 85. He did not, however, continue to abide by 17 SINTF’s policy for agent-informant communication. RSUF ¶¶ 96-97. 18 By January 2014, Mellow and Plaintiff were romantically involved. 19 RSUF ¶ 103. Plaintiff engaged in a range of misconduct to pursue 20 and protect his relationship with Mellow in the nine months that 21 followed. See RSUF ¶¶ 14-16, 19. Specifically, Plaintiff made 22 false reports to law enforcement dispatch; disclosed confidential 23 automated records to without authorization; revealed confidential 24 information about SINTF operations; lied to his SINTF commander 25 about his relationship with Mellow; and coordinated with Mellow 26 to cover up their affair. Id. 27 In September 2014, the CHP Internal Affairs Section began 28 investigating Plaintiff’s relationship with Mellow. RSUF ¶ 44. 1 This investigation came on the heels of a domestic incident at 2 Mellow’s home involving Plaintiff. On August 31, 2014, Plaintiff 3 left a greeting card on a car in Mellow’s front yard. RSUF ¶ 48. 4 The card revealed Plaintiff’s romantic feelings for Mellow and 5 included statements such as: 6 • “Since our first date (12/6/13), I have not been the same… 7 And our walk across the bridge and kiss on the cheek shortly 8 after your innocent text ‘Marry me’ has me wanting to ask 9 you the same thing.”; 10 • “Please know I want to spend forever with you as us !!!”; 11 • “I want to make you happier than you’ve ever been before, 12 just like you were in Tahoe . . . .”; and 13 • “I love you for who you are Tawnya Rachelle and want nothing 14 more than to unite as one!!” 15 RSUF ¶¶ 68, 70. Santana discovered the card and forced Mellow to 16 tell him who sent it. RSUF ¶¶ 46-47, 59. After Santana left, 17 Mellow’s daughter called the police. RSUF ¶ 83. Mellow told the 18 responding officers that Santana struck her in the face and 19 threatened to kill her if she didn’t tell him who left the card. 20 RSUF ¶ 48. The officers then told Commander James about 21 Plaintiff’s involvement. RSUF ¶ 80. 22 Investigators Scott Lunardi and Mel Hutsell led the Internal 23 Affairs investigation. RSUF ¶ 44. They interviewed Mellow, 24 Santana, James, and several SINTF agents. RSUF ¶¶ 57, 62, 76, 25 96-97. They also reviewed Plaintiff’s personnel file, 26 Plaintiff’s SINTF phone, the greeting card Plaintiff sent Mellow, 27 Mellow’s domestic violence report, closed incident reports and 28 audio reports Plaintiff made about Mellow, and materials relating 1 to both state and federal criminal investigations of Santana. 2 RSUF ¶¶ 45, 47, 49, 51, 53, 68, 74, 95. Based on the information 3 Lunardi and Hutsell gathered, they developed reasonable suspicion 4 that Plaintiff and Mellow were in a romantic relationship 5 prohibited by CHP policy. RSUF ¶ 103. The investigators also 6 suspected, given the absence of texts with Mellow on Plaintiff’s 7 SINTF phone, that Plaintiff was using his personal device to 8 contact her. RSUF ¶ 104. 9 The Internal Affairs Section Commander, R.J. Jones, ordered 10 Plaintiff to produce his personal cell phone so investigators 11 could search the device for work product. RSUF ¶¶ 105, 109-10. 12 Plaintiff initially refused, but ultimately turned over his 13 phone. RSUF ¶ 111, 113. Lunardi, along with CHP Officer Kevin 14 Domby and Computer Crimes Investigator Curtis Duray, attempted to 15 extract Plaintiff’s texts with Mellow from Plaintiff’s phone. 16 RSUF ¶ 114. After two of the department’s forensic extraction 17 tools failed to connect with Plaintiff’s phone, the officers 18 tried to video record the string of messages in Plaintiff and 19 Mellow’s text thread. RSUF ¶¶ 115-16. The investigators found 20 this approach proved too time intensive, so they created a backup 21 of Plaintiff’s entire phone on Duray’s computer. RSUF ¶¶ 117, 22 119. The investigators then extracted Plaintiff’s messages with 23 Mellow from that backup. RSUF ¶ 123. [24] 25 II. OPINION 26 A. Request for Judicial Notice 27 Federal Rule of Evidence 201 permits a court to “judicially 28 notice a fact that is not subject to reasonable dispute because 1 it (1) is generally known within the trial court’s territorial 2 jurisdiction; or (2) can be accurately and readily determined 3 from sources whose accuracy cannot reasonably be questioned.” 4 FRE 201(b). 5 Plaintiff requests the Court take judicial notice of the 6 following filings in this proceeding: 7 • Plaintiff’s compliant, filed November 24, 2015; 8 • The Court’s November 14, 2016 order and memorandum; 9 • Plaintiff’s second amended complaint, filed November 23, 10 2016; and 11 • Defendants’ answer to Plaintiff’s second amended 12 complaint, filed May 15, 2017. 13 Plf.’s Request for Judicial Notice (“Plf.’s RJN”), ECF No. 52-4. 14 The Court need not take judicial notice of prior filings in its 15 own case. See Hardesty v. Sac. Metropolitan Air Quality 16 Management Dist., 935 F.Supp.2d 968, 979 (E.D. Cal. 2013). The 17 Court therefore denies Plaintiff’s request for judicial notice. 18 Defendants also filed a request for judicial notice. 19 Defs.’ RJN, ECF No. 42-4. Defendants request the Court take 20 judicial notice of: 21 • Eastern District of Missouri’s order in Manasco v. Bd. Of 22 Police Comm’rs, No. 4:11-cv-00557-CDP, at *4-7 (E.D. Mo. 23 Apr. 1, 2011) (available at 24 http://www.aele.org/manasco.pdf); and 25 • Transcript of the September 17, 2014 Proceedings in Shasta 26 County Superior Court for People of the State of California 27 v. Robin Carl Rudolph and Nathan John Santana, No. 13F7922. 28 Defs.’ RJN at 1-2. 1 A Court may take judicial notice of matters of public 2 record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th 3 Cir. 2001). But in doing so, a court cannot assume the truth of 4 the information contained therein. Id. at 689-90 . Bearing this 5 caveat in mind, the Court finds the Manasco decision and the 6 September 17, 2014 proceeding in People v. Rudolph, et al. are 7 proper subjects of judicial notice. The Court grants 8 Defendants’ request. 9 B. Evidentiary Objections 10 Plaintiff objects to several of Defendants’ statements of 11 undisputed facts. See generally RSUF. The Court reviewed these 12 evidentiary objections but declines to rule on them. Courts 13 self-police on evidentiary issues arising at the motion for 14 summary judgment stage. Formal evidentiary rulings are 15 unnecessary. See Henry v. Central Freight Lines, Inc., No. 2:1616 cv-00280-JAM-EFB, 2019 WL 2465330 , at *2 (E.D. Cal. June 13, 17 2019); Burch v. Regents of the University of California, 433 18 F.Supp.2d 1110 , 1118–1122 (E.D. Cal. 2006). 19 C. Analysis 20 1. Spoliation 21 The Court first addresses Plaintiff’s contention that 22 Defendants engaged in spoliation. Spoliation is “the 23 destruction or significant alteration of evidence, or the 24 failure to preserve property for another’s use as evidence, in 25 pending or future litigation.” Kearny v. Foley & Lardner, LLP, [26] 590 F.3d 636 , 649 (9th Cir. 2009). Rules against spoliation are 27 rooted in litigants’ “duty to preserve evidence which [they 28 know], or reasonably should know, is relevant in [an] action.” 1 Harbor v. Cherniss, 2017 WL 2472242 , at *2 (E.D. Cal. June 8, 2 2017) (quoting Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 , 217 3 (S.D.N.Y. 2003)); see also Fed. R. Civ. Proc. 37(e). This duty 4 to preserve encompasses information that is “reasonably 5 calculated to lead to the discovery of admissible evidence, [] 6 reasonably likely to be requested during discovery, and/or the 7 subject of a pending discovery request.” Id. It applies 8 throughout litigation but also “to the period before litigation 9 when a party should reasonably know that evidence may be 10 relevant to anticipated litigation.” Id. So long as a party 11 owes this duty to opposing counsel, it must “suspend any 12 existing policies related to deleting or destroying files and 13 preserve all relevant documents related to the litigation.” Id. 14 (quoting In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 15 1060, 1070 (N.D. Cal. 2006)). 16 Plaintiff argues Defendants violated their duty to preserve 17 relevant evidence when they allowed Duray to “wipe” all data 18 from the computer used to backup Plaintiff’s phone and return 19 the computer to the Secret Service. Opp’n at 21-24. Plaintiff 20 contends a “forensic analysis [of] the actual computers and data 21 could reveal exactly what was searched, when, and by whom.” Id. 22 at 24. By “deleting this data and giving the computer away,” 23 Defendants “preclude[d] [him] from proving his central 24 allegation, namely that his personal data was seized, searched, 25 and kept in CHP control for an impermissibly lengthy period of 26 time.” Id. 27 But as Defendants argue, the Court cannot reach the merits 28 of Plaintiff’s spoliation claim because of his inexplicable 1 delay in raising it. Although specific deadlines vary across 2 courts, it is well-established that “unreasonable delay can 3 render a spoliation motion untimely.” Cottle-Banks v. Cox 4 Communications, Inc., No. 10-cv-2133-GPC-WVG, 2013 WL 2244333 , 5 at *16 (S.D. Cal. May 21, 2013) (collecting cases). In 6 Rhabarian v. Cawley, No. 10-cv-00767, 2014 WL 546015 , at *3 7 (E.D. Cal. Feb. 11, 2014), this Court found a spoliation claim 8 untimely when a party raised it after the close of discovery. 9 The Court found that although “Plaintiffs’ allegations of 10 spoliation [were] troubling . . . the time to raise these issues 11 was during discovery, and not after the deadline for dispositive 12 motions.” Other federal district courts in California have 13 allowed parties to raise spoliation claims after the close of 14 discovery. See, e.g., Sherwin-Williams Co. v. JB Collision 15 Services, Inc., No. 13-cv-1946-LAB-WVG, 2015 WL 4077732 , at *2 16 (S.D. Cal. July 6, 2015). They nonetheless insist parties raise 17 these types of claims “as soon as reasonably possible after 18 [uncovering] the facts that underlie the motion.” Id.; Montoya 19 v. Orange County Sheriff’s Dept., No. SACV 11-cv-1922-JGB-RNB, [20] 2013 WL 6705992 , at *6 (C.D. Cal. Dec. 18, 2013). Based on the 21 record here, the Court cannot find Plaintiff met either 22 standard. 23 In September 2018, Defendants produced Officer Duray’s 24 report to Plaintiff. Daily Decl. ¶ 4, ECF No. 53-1. Duray’s 25 report explained that the CHP officers downloaded the contents 26 of Plaintiff’s cell phone onto Duray’s laptop and then 27 transferred it to another laptop. Id. Plaintiff did not 28 conduct further discovery on either of those laptops. Id. In 1 March 2019, at Duray’s deposition, Duray again explained that 2 the officers used Duray’s laptop to download the contents of 3 Plaintiff’s personal phone. Opp’n at 21. Duray testified that 4 he “wiped” his laptop and returned it to the Secret Service in 5 2016. Id. Plaintiff then waited over nine months to raise a 6 claim of spoliation—after discovery closed and the dispositive 7 motion deadline passed. See ECF Nos. 33, 34. Plaintiff’s 8 opposition does not explain why his nine-month delay is 9 reasonable; nor can the Court identify a sound basis for 10 reaching that conclusion. For this reason, the Court denies 11 Plaintiff’s motion for Rule 37(e) spoliation sanctions. 12 2. Kyle Foster 13 Defendants argue the Court should grant summary judgment on 14 Plaintiff’s claims against Kyle Foster. Mot. at 29-30. As 15 Defendants argue, Plaintiff did not produce any evidence that 16 Foster participated in the administrative investigation that gave 17 rise to the alleged Fourth Amendment violation. See id. 18 Plaintiff does not oppose Defendants’ arguments about Foster’s 19 lack of participation. Indeed, Plaintiff concedes the following: 20 (1) Foster had no knowledge that CHP intended to take possession 21 of Plaintiff’s phone, RSUF ¶ 129; (2) Foster did not participate 22 in extracting or reviewing any data from Plaintiff’s personal 23 cell phone, RSUF ¶ 130; and (3) Plaintiff has no personal 24 knowledge regarding Foster’s role in the investigation into 25 Plaintiff’s misconduct, RSUF ¶ 131. Given these concessions, the 26 Court finds that Plaintiff’s claims that Foster conducted either 27 an unlawful search or seizure fail as a matter of law. See Jones 28 v. Williams, 297 F.3d 930, 934-35 (9th Cir. 2002). The Court 1 therefore grants Defendants’ motion for summary judgment on all 2 of Plaintiff’s claims against Foster. 3 3. Section 1983 4 Section 1983 of the Civil Rights Act creates a private 5 right of action against any person who, under the color of state 6 law, deprives another “of any rights, privileges, or immunities 7 secured by the Constitution and laws” of the United States. 42 8 U.S.C. § 1983 . But qualified immunity shields state officials 9 from liability when the conduct challenged “does not violate 10 clearly established statutory or constitutional rights.” Harlow 11 v. Fitzgerald, 457 U.S. 800, 818 (1982). 12 Defendants maintain their limited inspection of Plaintiff’s 13 texts to Tawnya Mellow as part of their administrative 14 investigation was constitutional. Mot. at 9-25. Even if the 15 search violated the Fourth Amendment, Defendants argue, clearly 16 established law did not proscribe their conduct at the time it 17 occurred. Mot. at 30-33. Absent a violation of clearly 18 established constitutional law, Defendants conclude they are 19 entitled to qualified immunity against Plaintiff’s Fourth 20 Amendment claims in their entirety. Id. 21 As a preliminary matter, the Court finds Defendants’ motion 22 fails to meaningfully distinguish Plaintiff’s Fourth Amendment 23 claim of unlawful search from his claim of unlawful seizure 24 under the same amendment. Plaintiff’s operative complaint 25 alleges Defendants’ violated his Fourth Amendment rights because 26 they subjected him to an unreasonable search and an unreasonable 27 seizure. SAC ¶ 33(a). Plaintiff’s opposition to Defendants’ 28 motion for summary judgment confirms that he is challenging the 1 constitutionality of both the acquisition of his cell phone’s 2 contents and the subsequent inspection of that information. 3 See, e.g., Opp’n at 3, 9-13. Accordingly, the Court reads the 4 complaint as raising two distinct theories of liability under 5 Section 1983: (1) Defendants conducted an unlawful seizure under 6 the Fourth Amendment when they downloaded the contents of 7 Plaintiff’s cell phone onto a CHP computer; and (2) Defendants 8 conducted an unlawful search under the Fourth Amendment when 9 they inspected the contents of Plaintiff’s cell phone. See 10 Soldal v. Cook County, III, 506 U.S. 56, 63 (1992) (“[T]he 11 Fourth Amendment ‘protects two types of expectations, one 12 involving searches, the other seizures.’”) (quoting U.S. v. 13 Jacobsen, 466 U.S. 109, 112 (1984)). As noted above, 14 Defendants’ opening brief only addressed Plaintiff’s unlawful15 search theory. Plaintiff’s unlawful-seizure theory was addressed 16 for the first time in Defendants’ reply. The Court therefore 17 grants Plaintiff the opportunity to file a surreply, addressing 18 the arguments Defendants raised against his unlawful seizure 19 theory in their reply. Plaintiff must file his surreply within 20 seven (7) days of this order; it may not exceed ten (10) pages. 21 Defendants’ motion for summary judgment does, however, 22 properly challenge Plaintiff’s claim that that Defendants 23 conducted an unlawful search of his phone. The Court finds 24 Defendants are entitled to qualified immunity on Plaintiff’s 25 Section 1983 claim to the extent that it is premised upon this 26 theory of Fourth Amendment liability. 27 a. Qualified Immunity 28 Qualified immunity aims to “balance two important 1 interests—the need to hold public officials accountable when the 2 exercise power irresponsibly and the need to shield officials 3 from harassment, distraction, and liability when the perform 4 their duties reasonably.” Pearson v. Callahan, 555 U.S. 223 , 5 231 (2009). As the name of the doctrine suggests, qualified 6 immunity is not “a mere defense to liability;” it is an immunity 7 from suit. Id. Law enforcement officers are entitled to this 8 immunity when “their conduct does not violate clearly 9 established statutory or constitutional rights of which a 10 reasonable person would have known.” Harlow, 457 U.S. at 818 ; 11 City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019). 12 Accordingly, courts deciding whether an officer is properly 13 immune from suit ask two questions: (1) did the officer’s 14 conduct violate a federal right? and (2) was that right clearly 15 established at the time the officer’s conduct occurred? 16 (i) Constitutional Violation 17 The Fourth Amendment, incorporated against the states by 18 the Fourteenth Amendment, protects “the right of the people to 19 be secure in their persons, house, papers, and effects against 20 unreasonable searches and seizures.” U.S. CONST. Amend. IV. As 21 the text indicates, “the ultimate touchstone of the Fourth 22 Amendment is ‘reasonableness.’” Riley v. California, 573 U.S. 23 373, 381 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398 , 24 403 (2006)). But before a court determines whether a search was 25 reasonable, it must first ask whether there was a search at all. 26 O’Connor v. Ortega, 480 U.S. 709, 717-18 (1987) (plurality 27 opinion); Katz v. United States, 389 U.S. 347, 351 (1967). 28 A search occurs when a state official intrudes upon a 1 person’s reasonable expectation of privacy. U.S. v. Jones, 565 2 U.S. 400, 406 (2012); O’Connor, 480 U.S. at 715 . To be 3 “reasonable,” the expectation must be one that society would 4 find objectively reasonable; it must also be an expectation that 5 is subjectively held. Id.; Katz, 389 U.S. at 361 (Harlan, 6 concurring). As the O’Connor plurality explained, “the 7 reasonableness of an expectation of privacy . . . is understood 8 to differ according to context.” 480 U.S. at 716 . In the 9 workplace, for example, “operational realities” may “diminish an 10 employee’s privacy expectations,” particularly “when an 11 intrusion is by a supervisor rather than a law enforcement 12 official.” Id. at 717 . This diminution may result from “office 13 practices and procedures[] or [] legitimate regulation.” Id. 14 Plaintiff argues Defendants’ inspection of his phone is a 15 mirror image of what happened to the petitioner in Riley v. 16 California, 573 U.S. 373 (2014). Reading the decision as a per 17 se bar to warrantless cell phone searches, Plaintiff contends 18 Riley should be the beginning and end of this Court’s analysis. 19 Opp’n at 15-16. But Riley does not represent the broad 20 proposition for which Plaintiff advocates. In Riley, police 21 officers stopped a man for a traffic violation. Id. at 378. 22 The officers conducted a search incident to arrest, seizing the 23 man’s cell phone and looking through its contents. Id. at 37824 79. The Supreme Court took for granted that this conduct 25 amounted to a search and proceeded to the question of whether 26 the search was reasonable. Id. More specifically, it addressed 27 whether the search-incident-to-arrest exception to the Fourth 28 Amendment’s warrant requirement applied to searches of a cell 1 phone’s contents. Id. at 382. The Court found the exception 2 did not apply but left open the possibility that other 3 exceptions to the warrant requirement might permit a warrantless 4 cell phone search. Id. at 401. 5 Riley is not sufficiently similar to the case at hand to 6 inform this Court’s analysis. Even setting aside the narrowness 7 of Riley’s legal holding, the factual distinctions between this 8 case and Riley prevent the case from being a helpful comparator. 9 Riley involved a criminal investigation that resulted in the 10 search of personal information on a personal device. Plaintiff 11 argues Defendants’ investigation was likewise criminal in nature 12 and that their search of his cell phone encompassed purely 13 personal information. But Plaintiff does not produce any 14 evidence to this effect. See RSUF ¶¶ 126, 133. Indeed, the 15 only evidence before the Court paints a different picture—one 16 where Defendants, acting as supervisors rather than law 17 enforcement, conducted an administrative investigation into 18 Plaintiff’s misconduct. See RSUF ¶¶ 25-27, 29, 38-41. As part 19 of that inspection, they reviewed text messages that CHP 20 considered work product under its governing policy. See RSUF 21 ¶ 105. Plaintiff’s deposition testimony that he felt like 22 Defendants were treating him “like a criminal” is insufficient 23 to give rise to a genuine dispute of material fact about whether 24 Defendants’ investigation was, in fact, criminal. See Exh. A to 25 Mot. at 203:20-23. For this reason, City of Ontario, Cal. v. 26 Quon, not Riley, is more instructive. See 560 U.S. 746 (2010). 27 In Quon, 560 U.S. at 758-59, the Supreme Court confronted a 28 workplace investigation comparable to the one at issue here. 1 The City of Ontario issued pagers to its SWAT team so the 2 members could mobilize and respond to emergency situations. Id. 3 at 751. The City had a “computer usage, internet, and e-mail 4 policy” whereby it “reserve[d] the right to monitor and log all 5 network activity.” Id. The policy cautioned users that they 6 “should have no expectation of privacy or confidentiality when 7 using these resources.” Id. When the City issued the pagers, 8 it explained that pager messages fell within this policy even 9 though they did not technically use the City’s network. Id. 10 Following several months of pager overage fees, the police chief 11 decided to audit Quon’s text messages. Id. at 752. He acquired 12 and read transcripts of the messages Quon sent during the 13 workday over a two-month period. Id. at 752-53. Quon filed 14 suit, arguing this amounted to an unconstitutional search. Id. 15 at 753-54. 16 In arriving at its conclusion that the City’s audit did not 17 violate the Fourth Amendment, the Supreme Court assumed without 18 deciding that Quon had a reasonable expectation of privacy in 19 the messages he sent with his work pager. Id. at 759-61. The 20 Court found it necessary to “proceed with care when considering 21 the whole concept of privacy expectations made on electronic 22 equipment owned by a government employer.” Id. at 759. It 23 further voiced uncertainty about “how workplace norms, and the 24 law’s treatment of them will evolve” in light of “[r]apid 25 changes in the dynamics of communication and information 26 transmission.” Id. 27 This Court finds itself in a similar position. Much like 28 Quon, Plaintiff comingled his work life and personal life on a 1 single device. RSUF ¶¶ 85, 101, 104. Quon used a work device 2 for personal communication; Plaintiff used a personal device to 3 engage in CHP-regulated communication. Id.; Quon, 560 U.S. at 4 752-54. This Court heeds Quon’s warning against broadly 5 prescribing the scope of a person’s privacy expectations when 6 work content and personal content coexist on one device. See 7 Quon, 560 U.S. at 759-61. For this reason, the Court, as Quon 8 did, assumes arguendo that Defendants conducted a search, but 9 finds that search was reasonable under the Fourth Amendment. 10 Warrantless searches are “per se unreasonable—subject only 11 to a few specifically established and well delineated 12 exceptions.” United States v. Hawkins, 249 F.3d 867, 872 (9th 13 Cir. 1990). In O’Connor, a plurality of the Supreme Court 14 carved out an exception to the warrant requirement for searches 15 that occur pursuant to a subset of workplace inspections. A 16 majority adopted that exception in Quon: 17 When conducted for a noninvestigatory, work-related purpos[e] or for the investigation of work-related 18 misconduct, a government employer’s warrantless search is reasonable if it is justified at its inception and 19 if the measures adopted are reasonably related to the objectives of the search and not excessively intrusive 20 in light of the circumstances giving rise to the search. [21] 22 560 U.S. at 761-62 (quoting O’Connor, 480 U.S. at 725-26 ). 23 As explained above, Plaintiff failed to produce any 24 evidence that Defendants’ search occurred pursuant to a criminal 25 investigation, rather than an investigation of work-related 26 misconduct. The Court therefore finds that the O’Connor/Quon 27 exception sets forth the governing standard for whether 28 Defendants’ search was reasonable. 1 Moreover, the Court finds Defendants’ inspection of CHP 2 work product was in fact justified at its inception, reasonably 3 related to the objectives of their search, and appropriate in 4 light of the surrounding circumstances. Plaintiff had 5 inexplicably left a romantic greeting card at the residence of a 6 confidential informant and the target of a criminal 7 investigation. RSUF ¶ 48. This card gave rise to a domestic 8 violence incident that jeopardized Mellow’s safety. Id. It 9 also resulted in the dismissal of federal charges against 10 Santana. RSUF ¶ 12. The undisputed facts show that CHP sought 11 to understand the scope of Plaintiff’s communication with Mellow 12 and mitigate harm that might flow from his potential misconduct. 13 RSUF ¶¶ 18, 21. They also show that Defendants limited their 14 search, even within Plaintiff’s texts with Mellow, to a subset 15 of messages spanning from September 1, 2013 (the month Mellow 16 initially contacted SINTF with information about Santana) to 17 November 5, 2014 (the day before CHP directed Plaintiff to 18 produce his phone). RSUF ¶ 107. In this respect, the case 19 again resembles Quon, 560 U.S. at 761-62 (finding a public 20 employer’s tailored review of an employee’s text messages was 21 reasonable in light of the surrounding circumstances). To be 22 sure, issues regarding the reasonableness of Defendants’ seizure 23 of Plaintiff’s data remain. But Defendants’ limited search of 24 Plaintiff’s texts with Mellow was reasonably related to the 25 objectives of the investigation and not excessively intrusive 26 given the grave abuse of power suspected. See Mot. at 25-28. 27 For the reasons discussed above, Plaintiff failed to raise 28 a genuine issue of material fact about whether Defendants’ 1 inspection of his text messages with Mellow violated the Fourth 2 Amendment. 3 (ii) Clearly Established 4 Even if Defendants’ inspection of Plaintiff’s text exchange 5 with Mellow was an unreasonable search, it did not violate a 6 right that was clearly established at the time Defendants’ 7 conduct occurred. Courts must define clearly established rights 8 “with specificity.” Emmons, 139 S. Ct. at 503 . A right is not 9 clearly established unless its “contours [are] sufficiently 10 definite that any reasonable officer would have understood that 11 he was violating it.” Id. (quoting Kisela v. Hughes, 138 S. Ct. 12 1148, 1153 (2018). None of the cases Plaintiff cites in support 13 of his claim that his right to be free from Defendants’ search 14 was clearly established provides a closer analog than Quon, 560 15 U.S. at 758-65. But Quon cuts against, not toward, the 16 existence of Plaintiff’s claimed protection. Accordingly, the 17 Court finds Plaintiff failed to raise a genuine dispute of 18 material fact about whether Defendants violated a clearly 19 established Fourth Amendment right. 20 (iii) Conclusion 21 Defendants are entitled to qualified immunity with respect 22 to Plaintiff’s claim that the inspection of his text messages 23 with Mellow amounted to an unlawful search. The Court grants 24 Defendants’ motion for summary judgment on this claim. 25 4. Bane Act 26 The Bane Act allows an individual “whose exercise or 27 enjoyment of rights secured by the constitution . . . has been 28 interfered with” to “institute and prosecute . . . a civil action 1 for damages.” Cal. Civ. Code § 52.1 (c). Under the Bane Act, a 2 plaintiff must prove that the person who interfered with his 3 constitutional rights did so “by threat, intimidation, or 4 coercion” or acted with the “particular purpose” of depriving him 5 of those rights. Id.; Cornell v. City & Cnty. of San Francisco, [6] 17 Cal. App. 5th 766, 803 (2017). To prove “threat, 7 intimidation, or coercion,” a plaintiff must in most cases 8 identify more than “speech alone.” Cal. Civ. Code § 52.1 (k). 9 Defendants argue they are entitled to summary judgment on 10 Plaintiff’s Bane Act claim because Plaintiff’s unlawful search 11 claim fails as a matter of law and because Plaintiff failed to 12 produce any evidence that Defendants violated his rights “by 13 threat, intimidation, or coercion.” Mot. at 33-34. The Court 14 agrees with both arguments. As discussed above, Plaintiff’s 15 unlawful search claim fails as a matter of law. To the extent 16 that Plaintiff’s Bane Act claim rests upon this alleged 17 constitutional violation, it fails as well. 18 But Plaintiff’s Bane Act claim also fails because he has not 19 produced any evidence that he was threatened, intimidated, or 20 coerced in a cognizable way. Plaintiff concedes that Defendants 21 did not verbally threaten him with violence, retaliation, 22 criminal charges. Ex. 1 to Mot. at 212:19-214:20. He argues 23 instead that a January 30, 2015 memorandum amounted to a threat 24 of arrest. Opp’n at 30 (citing Cuveillo v. City of Stockton, No. 25 07-cv-1625-LKK-KJM, 2009 WL 9156144 , at *17 (E.D. Cal. Jan. 26, 26 2009)). 27 Even when viewing the facts in the light most favorable to 28 Plaintiff, no reasonable juror could read this memo as a threat 1 of criminal arrest. The January 30, 2015 memo is from the 2 “Internal Affairs Section” of the CHP. See Exh. 28 to Mot., ECF 3 No. 43-1. It is titled “NOTICE OF ADMINISTRATIVE INTERROGATION.” [4] Id. And it states that the investigation will be conducted by 5 members of the Internal Affairs Section. Id. Nothing in the 6 memo refers to prosecution, arrest, a violation of criminal law, 7 or any form of detention. 8 Because Plaintiff failed to produce evidence of threat, 9 intimidation, or coercion, Defendants are entitled to judgment on 10 the Bane Act claim under both of Plaintiff’s theories of 11 constitutional liability. Accordingly, the Court grants 12 Defendants’ motion for summary judgment on Plaintiff’s Bane Act 13 claim in its entirety. [14] 15 III. ORDER 16 For the reasons set forth above, the Court GRANTS IN PART 17 Defendants’ motion for summary judgment. The Court grants 18 Defendants’ motion for summary judgment on Plaintiff’s Bane Act 19 claim against Lunardi, Jones, and Foster, as well as his Section 20 1983 claim against Foster. The Court also grants Defendants’ 21 motion for summary judgment on Plaintiff’s Section 1983 claim 22 against Lunardi and Jones to the extent that it rests upon the 23 theory that they conducted an unconstitutional search. 24 Defendants’ request for summary judgment on Plaintiff’s 25 remaining claim that Defendants conducted an unlawful seizure by 26 downloading the contents of his personal phone onto a CHP 27 computer is taken under submission. Plaintiff shall file his 28 surreply within seven (7) days of this Order. The Court will 1 issue a separate Order regarding this claim after reviewing 2 Plaintiff’s surreply. 3 IT IS SO ORDERED. 4 Dated: March 4, 2020 Lh Ion Ai bdece