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Mallak v. City of Brainerd

United States District Court, D. Minnesota

August 23, 2017

Brook Mallak, Plaintiff,
City of Brainerd; Crow Wing County; City of Fridley; City of Staples; City of St. Cloud; 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; 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; 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; 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; and Entity Does 1-50 including cities, counties, municipalities, and other entities sited in Minnesota and federal departments and agencies, Defendants.

          Jonathan A. Strauss, Esq., Lorenz F. Fett, Jr., Esq., Sonia L. Miller-Van Oort, Esq., and Robin M. Wolpert, Esq., Sapientia Law Group PLLC, counsel for Plaintiff.

          Jon K. Iverson, Esq., Susan M. Tindal, Esq., and Stephanie A. Angolkar, Esq., Iverson Reuvers Condon, counsel for Defendants City of Brainerd, City of Fridley, City of St. Cloud, City of Staples, Anthony Runde, Perry Jones, and David Darling.

          Erin E. Benson, Esq., Margaret A. Skelton, Esq., and Timothy A. Sullivan, Esq., Ratwik, Roszak & Maloney, PA, counsel for Defendant Crow Wing County.

          Jason M. Hill, Esq., Jardine, Logan, & O'Brien, P.L.L.P., and Margaret A. Skelton, Esq., Ratwik Roszak & Maloney, PA, counsel for Defendants Tyler Burke, Amy Edberg, Derek LaVoy, Illissa Ramm.

          Jason M. Hill, Esq., and Robert I. Yount, Esq., Jardine, Logan, & O'Brien, P.L.L.P., Jon K. Iverson, Esq., Iverson Reuvers Condon, and Margaret A. Skelton, Esq., Ratwik Roszak & Maloney, PA, counsel for Defendant Ryan Goff.




         This matter is before the Court on Motions for Summary Judgment by Defendants Anthony Runde, David Darling, Perry Jones, and the Cities of Brainerd, Fridley, St. Cloud, and Staples (collectively, “City Defendants”), and Ryan Goff (altogether, “Moving Defendants”). (Doc. Nos. 376, 383.) For the reasons set forth below, the Court grants in part and denies in part the City Defendants' motion and grants Ryan Goff's motion.


         I. General Background

         Plaintiff Brook Mallak's (“Plaintiff”) case relates to the alleged improper access of her driver's license information, which is maintained in a database with the Department of Vehicle Services (“DVS”), a division of the Department of Public Safety (“DPS”). Plaintiff claims that the improper access of her information violated the Driver's Privacy Protection Act (“DPPA”) and included access to such information as her name, date of birth, driver's license numbers, addresses, driver's license photos, weight, height, social security number, various health and disability information, and eye color.

         Plaintiff received an audit report from DPS in 2013, at which time she learned that her driver's license information had been “repeatedly accessed” by numerous law enforcement entities. (Doc. No. 145 (“Mallak Aff.”) ¶ 23; Doc. No. 379 (“Angolkar Aff.”) ¶ 22, Ex. 21 (“Jacobson Dep.”) at 135-36.) The lookups of Plaintiff's information were run by Plaintiff's name or driver's license number rather than by her license plate number. (Jacobson Dep. at 138-39.) The accesses were conducted on government entity computers. (Id. at 138.)

         Plaintiff is a practicing attorney in Brainerd and Little Falls, Minnesota. (Mallak Aff. ¶ 1.) Plaintiff was a full-time public defender between 2003 and 2008 in Crow Wing and Aitkin Counties. (Id. ¶ 3.) She continues to practice criminal defense in the private sector. (Id. ¶ 9.) Plaintiff has also served on the Crow Wing County Drug and DWI Courts and a number of steering committees, has volunteered with numerous community organizations, and has taught as an adjunct teacher at Bemidji State University. (Id. ¶¶ 5-8.) Plaintiff is familiar with “several people within the Crow Wing County justice system” and asserts that she is known throughout her community due to her “career and community involvement.” (Id. ¶¶ 9, 16.)

         As the Court explained in a previous Order, Plaintiff has had a number of interactions with law enforcement, contrary to the representations in her original complaint.[1] (See Doc. No. 199 at 4-5.) In particular, Plaintiff's child was reported unresponsive to the Brainerd police on July 6, 2010. (Mallak Aff. ¶ 14.) The child passed away on July 12, 2010. (Id.) The Brainerd Police Department conducted an investigation into the child's death due to the nature of the circumstances surrounding it. (Id. ¶ 15.) The autopsy indicated that the child had passed away from natural causes. (Id. ¶ 18.) Plaintiff asserts that the tragedy of her son's death was known throughout the Brainerd community. (Id. ¶ 16.)

         Plaintiff has also had other interactions with law enforcement relating to a reported theft of her motor vehicle, a trespassing incident, a hit and run vehicle accident, a welfare check, and various traffic stops. (Doc. No. 111 (“McQuiston Aff.”) ¶ 7; Mallak Aff. ¶ 31; Angolkar Aff. ¶ 3, Ex. 2 (“First Mallak Dep.”) at 145-49, 165-67.) Excluding the investigation relating to her son's death, Plaintiff asserts that she has never been under investigation by Defendants. (Mallak Aff. ¶ 19.) She also states she has “never been charged with any crimes.” (Id. ¶ 20.)

         Plaintiff was in a relationship with an individual referred to as S.M.S. from mid-August 2009 to mid-November 2010. (Id. ¶ 13.) During this time, S.M.S. lived at Plaintiff's home and occasionally drove Plaintiff's vehicles. (Id.; First Mallak Dep. at 92-95.) When Plaintiff and S.M.S. ended their relationship, Plaintiff gave S.M.S. a Honda Accord. (First Mallak Dep. at 95.) S.M.S. has a long criminal history, has been on probation, and has acted as a confidential informant for the Crow Wing County Sheriff's Office. (Id. at 96-98, 106, 115-16.) Plaintiff has not seen S.M.S. since November 2010 and was not aware that S.M.S. was a confidential informant. (Mallak Aff. ¶ 13; First Mallak Dep. at 106, 117; Angolkar Aff. ¶ 2, Ex. 1 (“Second Mallak Dep.”) at 53-54, 113.) When S.M.S. lived with Plaintiff, he was not under probationary supervision. (First Mallak Dep. at 106-07.)

         Plaintiff claims to have suffered emotional distress in connection with her DPPA claims as well as out-of-pocket expenses such as the cost of installing an alarm system and hiring a private investigator. (Id. at 156-65, 205-19.) When Plaintiff received her DPS audit and reviewed the accesses of her information, she “felt physically ill, ” “nauseated, ” “upset, ” and “angry.” (Second Mallak Dep. at 41-42.) When Plaintiff learned the identity of some of the individuals who accessed her DPS record, she “was shocked” due to her “personal and professional relationships with some of them.” (Mallak Aff. ¶ 28.) Plaintiff asserts that receiving the audit led her to feel nervous that she was being watched. (Second Mallak Dep. at 88-91.) Since filing her lawsuit, Plaintiff reports that she feels targeted, fears for her safety, fears retaliation, and worries that police will be unresponsive if she calls. (First Mallak Dep. at 215-16.) She also reports having intruders come to her home since filing this lawsuit, causing her to fear for her personal safety. (Id. at 159-65, 205-12.) Plaintiff has not seen any medical or mental health professionals or been diagnosed with a particular condition in connection with her emotional distress. (Id. at 156-57; see also Second Mallak Dep. at 101.)

         II. Procedural History

         In March 2014, the Court ruled on a number of motions to dismiss in this case. The Court dismissed all DPPA claims outside of a four-year statute of limitations, all Section 1983 claims, and all invasion of privacy claims. (See generally Doc. No. 89.) However, the Court also held that Plaintiff's claim for violations of the DPPA (Count I) could proceed against multiple city and county defendants. (See id.)

         Plaintiff has twice amended her Complaint to replace Doe defendants with named defendants. (See generally Doc. No. 193 at 3-10 (summarizing the procedural history underlying these amendments).) On June 30, 2014, Plaintiff requested discovery from the city and county defendants, and the defendants responded. (See Doc. No. 150 (“Strauss Aff.”) ¶¶ 3-4.) In light of the city and county defendants' discovery responses, Plaintiff filed a First Amended Complaint on November 5, 2014, replacing individual Doe defendants with specific, named individuals. (Doc. No. 167, First Am. Compl. (“FAC”).) Plaintiff filed a Second Amended Complaint on March 18, 2015, replacing additional Doe defendants. (Doc. No. 195, Second Am. Compl. (“SAC”).) Relevant to the motions currently before the Court, Plaintiff's First Amended Complaint added the following named Defendants: Anthony Runde, Perry Jones, David Darling, and Ryan Goff. (See generally FAC.)

         In March 2015, the Court granted in part a Motion for Summary Judgment brought by six Defendant cities. (See Doc. No. 199.) For five accesses, the Court determined that Plaintiff's record was indisputably accessed by law enforcement officers for a permissible reason. Thus, with respect to these accesses, there was no DPPA violation, and the cities were entitled to qualified immunity. (See Id. at 16-18.) However, for five other accesses, the Court concluded that a genuine issue of material fact remained regarding whether Plaintiff's record was accessed for a permissible purpose, and the cities were not entitled to summary judgment. (Id. at 18-19.) The Court outlines evidence specific to each of the accesses relevant to the pending motions, below.

         III. Individual Accesses

         A. Anthony Runde (September 8, 2009)

         Anthony Runde (“Runde”) accessed Plaintiff's information on September 8, 2009 at 10:49 a.m. (Angolkar Aff. ¶ 21, Ex. 20 (“48-Hour Audit”); Angolkar Aff. ¶ 6, Ex. 5 (“Runde Dep.”) at 69-71.) Runde has been a patrol officer for the Brainerd Police Department since May 2008. (Runde Dep. at 6.) Runde had access to the DVS database from the start of his position, and he understood it was not to be used “for personal reasons.” (Id. at 34-35.) He used the DVS database for multiple reasons such as to look up driver's license status, create photo lineups, conduct investigations, look up driving records, and check for warrants. (Id. at 40-44.) He testified that he never used the DVS database for personal reasons such as to look up friends or family, or to look up colleagues “out of curiosity.” (Id. at 58-59.) He explained that he looked up his own DVS record when he was having connectivity issues which happened once every few years. (Id. at 61-63.) Runde testified that he accessed the DVS database from the police department and his squad cars and never on his home computer. (Id. at 61.)

         Runde and Plaintiff were both on the DWI Court Team. (Mallak Aff. ¶ 32; First Mallak Dep. at 122; Second Mallak Dep. at 61-62; Runde Dep. at 16-17, 24-25, 66.) Plaintiff explained that she and Runde knew each other professionally but did not spend time together outside of DWI Court. (Second Mallak Dep. at 62-63.) Plaintiff testified that she “felt like [she and Runde] had a trusting, professional relationship.” (Id. at 122-23.)

         Plaintiff chose to resign from the DWI Court and Drug Court Teams when she began her relationship with S.M.S. (First Mallak Dep. at 128-29.) She sent her letter of resignation on August 31, 2009. (Angolkar Aff. ¶ 7, Ex. 6; Runde Dep. at 79-80.) Runde could not recall when he became aware that Plaintiff was resigning from DWI Court, but he knew she did so due to her relationship with S.M.S. (Runde Dep. at 80-81.) Runde looked up Plaintiff's information just over one week after Plaintiff's resignation from the DWI Court Team. (Angolkar Aff. ¶ 7, Ex. 6; see also Mallak Aff. ¶ 32; First Mallak Dep. at 128.)

         Runde has arrested S.M.S. on multiple occasions since 2006 or 2007, and he explained that “[h]e is very well known to me as someone that I have dealt with numerous times.” (Runde Dep. at 73-74.) Runde testified that he did not know that S.M.S. had graduated from Drug Court. (Id. at 73-74, 78, 87.) He could not recall when he first learned S.M.S. and Plaintiff were in a relationship, but he testified that it was some time before his September 8, 2009 lookup of her information, and he “was very concerned” and worried “that maybe [Plaintiff] was falling into a trap.” (Id. at 81-83, 91.)

         Runde's Officer Log demonstrates that he was on patrol on September 8, 2009 at the time of the lookup. (See Angolkar Aff. ¶ 8, Ex. 7; Runde Dep. at 115-16.) He used the City of Brainerd's computer to look up her information while he was in a City of Brainerd squad car. (Angolkar Aff. ¶ 18, Ex. 17 (“McQuiston Dep.”) at 103-05; Doc. No. 392 (“Strauss Decl.”) ¶ 4, Ex. B at 4.) The most recent recorded activity preceding Runde's lookup of Plaintiff's record is a medical emergency call at 9:53 a.m. (See Angolkar Aff. ¶ 8, Ex. 7; Runde Dep. at 115-16.) Following Runde's lookup of Plaintiff's information, the Officer Log shows that Runde responded to a civil problem at 12:02 p.m. (Angolkar Aff. ¶ 8, Ex. 7; Runde Dep. at 119-20.) Between 9:53 a.m. and 12:02 p.m., Runde did not make any traffic stops. (Runde Dep. at 121.) There are no log entries particularly connected with Plaintiff or the time of Runde's access of her information. (See generally Angolkar Aff. ¶ 8, Ex. 7; see also Runde Dep. at 98-99.) The City of Brainerd has no record of any citations, warrants, arrests, or 911 calls involving Plaintiff on September 8, 2009. (McQuiston Dep. at 48-50.) Brainerd Chief Corky McQuiston testified that he was not aware of any records of investigations relating to S.M.S. or Plaintiff at the time. (Id. at 81-82.) In his deposition, Runde stated, “I am certain that [Plaintiff] was in her vehicle and driving somewhere in Brainerd” on September 8, 2009 at 10:49 a.m. (Runde Dep. at 84; see also Id. at 133.) He explained that he wanted to look up Plaintiff's driver's license to confirm that it was valid because he had heard about Plaintiff's relationship with S.M.S. (Id. at 85, 129-33.) According to Runde:

If she doesn't have a valid driver's license, it would be the basis of a traffic stop and potential investigation into . . . You know. Based upon [S.M.S]'s history, I know that he has been, you know, into drugs. And based upon his history, you know, she quite possibly could be into that, as well.

(Id. at 85; see also Id. at 86-88.) Runde also explained how he had looked up two other individuals that morning who were involved with drugs and suggested that this may have caused him to look into S.M.S. and Plaintiff. (Runde Dep. at 104, 124-32; see also Doc. No. 136 (“Runde Aff.”) ¶ 8.) At the time of the lookup, Runde was not working as an investigator. (Runde Dep. at 92.) When asked if he looked up Plaintiff and S.M.S. out of curiosity based on hearing about their relationship, Runde responded, “Absolutely not. No.” (Id. at 98; see also Runde Aff. ¶ 3.)

         Plaintiff does not know why Runde accessed her information. (Second Mallak Dep. at 64.) Her calendar and court records reflect that she was in Crow Wing County District Court which is located in Brainerd, Minnesota on September 8, 2009 for a 9:00 a.m. pre-trial hearing. (Id. at 57-61; see also Angolkar Aff. ¶ 4, Ex. 3; Angolkar Aff. ¶ 5, Ex. 4.) Plaintiff does not know exactly where she was at 10:49 a.m. that morning, and she acknowledged that she would have driven in Brainerd that day in her Honda Accord. (Second Mallak Dep. at 57, 63-64.)

         On September 8, 2009, Runde accessed S.M.S.'s DPS record at 10:48 a.m., one minute prior to accessing Plaintiff's record. (48-Hour Audit.) He also accessed S.M.S.'s ex-wife the same minute he accessed Plaintiff. (Id.; Doc. No. 393 (“Second Mallak Decl.”) ¶ 4.) Earlier that morning, he had accessed his own record as well as a Crow Wing County dispatcher's. (48-Hour Audit; see also Runde Dep. at 68; Second Mallak Decl. ¶ 4.)

         B. David Darling (July 11, 2010)

         David Darling (“Darling”) accessed Plaintiff's DVS record on July 11, 2010 at 7:11 p.m. (48-Hour Audit.) Darling has worked for the City of St. Cloud as a patrol officer since February 2008. (Angolkar Aff. ¶ 9, Ex. 8 (“Darling Dep.”) at 8.) In this position, Darling responds to calls, makes traffic stops, writes reports, and conducts follow-up. (Id. at 12.) Darling testified that “[p]retty much all of” his work is done in his squad car, and he accessed the DVS database from the computer in his vehicle. (Id. at 9, 12.) Darling explained that he runs license plate number lookups while on patrol. (Id. at 19.) He stated that he does so to check for stolen vehicles, the validity of driver's licenses, warrants, or court orders in connection with vehicles. (Id. at 20.) Darling explained that he used a photo lookup in the DVS database because “[i]t was faster . . . [y]ou would just copy, paste, and then everything would pull up in the photo search.” (Id. at 35; see also Id. at 36-37.) He understood that the DVS database was to be used for law enforcement purposes. (Id. at 47-48; see also Id. at 61-62.) Darling admitted that he had used the DVS database for personal reasons and had faced an investigation in 2011 for his DVS use.[2] (Id. at 48-49.)

         Darling testified that he did not know Plaintiff and has not met her. (Id. at 6, 82.) He stated he was not aware Plaintiff's son was in the hospital in St. Cloud on July 11, 2010, and did not know about the circumstances relating to his hospitalization. (Id. at 82.) He asserts that he did not look up Plaintiff's information “for personal reasons or out of personal curiosity.” (Doc. No. 121 (“Darling Aff.”) ¶ 7.)

         Darling was on patrol duty when he looked up Plaintiff's DVS record. (Angolkar Aff. ¶ 10, Ex. 9 (“Oxton Dep.”) at 73-74.) At the time, Plaintiff was at the hospital in St. Cloud with her son. (Mallak Aff. ¶ 40; Second Mallak Dep. at 70-71.) Plaintiff's son was removed from life support on July 12, 2010. (First Mallak Dep. at 199-200.) Darling was assigned to patrol a beat in a part of town separate from where the hospital was located. (Oxton Dep. at 74-75, 198-99.) However, officers could leave their assigned beats during a shift. (Id. at 79.) Darling does not specifically recall the purpose for his lookup of Plaintiff's record, but he testified that records show that he ran a license plate lookup followed by a photo-only lookup of Plaintiff's DVS record. (Darling Dep. at 44, 66-67, 83.) Darling concluded that he looked up Plaintiff's license plate “[p]robably because it was in front of me on a public street.” (Id. at 43.) None of the service calls reported on Darling's call log entries involved Plaintiff. (Id. at 45.) Darling testified that he did not look up Plaintiff in connection with a photo lineup, personal service, or an investigation. (Id. at 64-65.)

         St. Cloud Assistant Chief Jeffrey Oxton (“Oxton”) also testified that the City of St. Cloud had no information relating to Plaintiff being involved in a photo lineup, personal service, or an investigation. (Oxton Dep. at 110-13.) The City of St. Cloud's only record of contact with Plaintiff was a gun permit application from 2003 unrelated to Darling's 2009 lookup. (Id. at 91-93.) Records obtained by Oxton and by Plaintiff's counsel via Westlaw verify that Darling looked up a license plate associated with Mallak's Honda Accord on July 11, 2010 at 7:10 p.m.[3] (Id. at 211-13; see also Angolkar Aff. ¶ 15, Ex. 14; Angolkar Aff. ¶ 16, Ex. 15; Angolkar Aff. ¶ 17, Ex. 16.) Based on GPS records, Oxton testified that Darling ran the license plate and then Plaintiff's DVS record while driving. (Oxton Dep. at 94-95, 204; see also Angolkar Aff. ¶ 13, Ex. 12.) Darling's call log entries and chat records also indicate that he was in between writing reports and going to lunch when he ran Plaintiff's records. (Id. at 169, 187-92; 202-10; see also Angolkar Aff. ¶ 11, Ex. 10; Angolkar Aff. ¶ 14, Ex. 13.)

         Oxton testified that in general a proactive officer “might run plates consistently” and “may run DVS inquiries to see pictures of people if people come back suspended or revoked or with warrants to confirm what those people look like.” (Oxton Dep. at 53.) He explained that “[o]fficers working traffic control might run every plate that comes toward them or every plate that they're following in order to look for violations of registration or licensing or warrants, and it's a very common practice.” (Id.) Oxton also explained how officers would conduct DVS lookups “right away” in conjunction with a license plate lookup in a separate database to visually verify identities of drivers. (Id. at 102-03.)

         In light of records showing Darling's license plate lookups from July 11, 2010, Oxton testified, “I would say he runs a lot of plates . . . consistent with someone doing a lot of traffic enforcement.” (Id. at 212.) Based on the information he reviewed and his experience, Oxton assumed Darling's July 11, 2010 lookup of Plaintiff's record was conducted in the scope of his patrol duties to confirm the identity of the person driving Plaintiff's vehicle. (Id. at 95, 102-05; see also Id. at 225-27, 231-32.) Darling's call log did not indicate any particular reason why he may have looked up Plaintiff's DVS record that day. (Id. at 192.)

         Plaintiff testified that she has not met Darling. (Second Mallak Dep. at 98-99.) When questioned about Darling's access, Plaintiff stated, “When I look at the date and time that David Darling did his access, I can remember what I was doing at that time. We were trying to get ready to have our son die.” (Id. at 120.) She explained, “When I saw that and thought about somebody was snooping into my information for whatever reason because they had access, that hurts a lot, compiling that with what was going on.” (Id. at 120.) Plaintiff asserts that she did not have any contact with St. Cloud law enforcement personnel on July 11, 2010. (Mallak Aff. ¶ 40; see also Strauss Decl. ¶ 9, Ex. G at 12.) At the time, Plaintiff had given S.M.S. her Honda Accord to drive. (Second Mallak Dep. at 72, 75-76.)

         C. Ryan Goff (December 6, 2010)

         Ryan Goff (“Goff”) accessed Plaintiff's DVS record on December 6, 2010 from 9:44 p.m. to 9:45 p.m.[4] (48-Hour Audit.) Goff worked full-time as a corrections officer for the Crow Wing County Jail and part-time as a patrol officer for the City of Staples from 2008 until 2012. (Angolkar Aff. ¶ 19, Ex. 18 (“Goff Dep.”) at 17-18, 28-30, 33.) He believes his access of Plaintiff's DVS record took place while he was working his typical 6:00 p.m. to 6:00 a.m. night shift at the Crow Wing County Jail. (Id. at 31, 110-11.) The City of Staples has confirmed that Goff was not working for Staples on December 6, 2010. (Angolkar Aff. ¶ 20, Ex. 19 (“Birkholtz Dep.”) at 62-63; see also Id. at 91-92.)

         In his position at the Crow Wing County Jail, Goff's primary duty was “ensur[ing] the safety and the security of the facility.” (Goff Dep. at 30-31.) This involved processing visitors to the jail through the booking area, including attorneys. (Id. at 36.) He explained that during his shift most visitors would use the public entrance rather than the entrance connected to the judicial center. (Id. at 36-37.) The judicial center was closed by the start of his shift at 6:00 p.m., and if attorneys visited, it would commonly be toward the start of his shift. (Id. at 36-38.)

         Goff obtained DVS access through the City of Staples at the start of his position, and he understood that it was not to be used “for personal reasons.” (Id. at 22; see alsoid. at 77.) He did not obtain separate DVS access credentials from Crow Wing County. (Id. at 41-43.) According to Goff, “I had never pursued that because I already had a login with the City of Staples.” ( 42.) He was never instructed not to use his login from his other employment while working for Crow Wing County. (Id. at 42-43.) Goff was not required to obtain DVS access as a corrections officer at Crow Wing County, but he used the DVS database in his position “to verify identities” of individuals visiting the jail. (Id. at 42, 45; see also Id. at 55-56.) Goff testified that Crow Wing County corrections officers could obtain a DVS login for this purpose. (Id. at 42.) ...

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