United States District Court, D. North Dakota
REPORT AND RECOMMENDATION
CHARLES S. MILLER, Jr., Magistrate Judge.
This action arises out of an investigation into the transfer of illicit images of children from an Internet Protocol ("IP") address assigned to a Minot, North Dakota, residence in which plaintiff was subletting a basement bedroom. During the course of the investigation law enforcement officers obtained a search warrant for the entire residence and conducted a search which included the basement bedroom that plaintiff was subletting. After conducting the search, law enforcement officers went to plaintiff's place of business where they spotted a bag in plaintiff's vehicle containing a laptop. After plaintiff denied a request to search the laptop, officers secured the vehicle until a search warrant could be obtained. The later search of the laptop pursuant to a state-court warrant revealed no illicit images of children.
A. Procedural background
Plaintiff initiated this action in September 2014 under the pseudonym "Jose Doe." He alleges in his complaint that the searches of his rented bedroom and vehicle were unlawful, that his rights under the Privacy Act were violated, and that he was ostensibly defamed by law enforcement. Plaintiff claims he lost both his job and his room on account of what took place and that personal property was damaged during the searches. (Doc. No. 9).
At the time of submitting his complaint for filing, plaintiff sought approval to proceed in forma pauperis. (Doc. No. 1). The court granted the request (Doc. No. 8) and conducted a screening of the complaint pursuant to 28 U.S.C. § 1915(e)(2). As a result of the screening, the court did not permit plaintiff to proceed against Minot Police Chief Jason Olson because there were no allegations of his personal involvement or grounds for imposition of supervisory liability under 42 U.S.C. § 1983. The court also did not permit the suit to proceed against the North Dakota Bureau of Criminal Investigation ("BCI") and Special Agent Jesse Smith in his official capacity as an officer of the BCI because of Eleventh Amendment immunity. The court did permit plaintiff to proceed against City of Minot police officers Sgt. Dave Goodman and Det. Krista Thompson, in both their individual and official capacities, and SA Smith in his individual capacity. (Doc. Nos. 10 & 53).
Plaintiff took an interlocutory appeal to the Eighth Circuit Court of Appeals seeking review of the court's screening decision as well the court's denial of plaintiff's motion to appoint counsel. The Eighth Circuit summarily affirmed the court's order denying the motion for appointment of counsel and dismissed the remainder of the appeal for lack of jurisdiction. (Doc. No. 68).
Now pending before the court are:
1. a "Motion to Dismiss or, in the Alternative, a Motion for Summary Judgment" filed by defendants Sgt. Goodman and Det. Thompson (herein collectively the "Minot defendants") seeking dismissal on the merits as well as that plaintiff should not be permitted to proceed under a pseudonym and qualified immunity (Doc. No. 31);
2. a "Motion to Dismiss for Failure to State a Claim" on the grounds plaintiff should not be permitted to proceed under a pseudonym by SA Smith (Doc. No. 36);
3. a "Motion for Judgment on the Pleadings" filed by SA Smith (Doc. No. 43) in which SA Smith joins in the Minot Defendant's motion to dismiss as to the merits; and
4. a "Motion for Leave to Proceed with a Pseudonym" filed by plaintiff (Doc. No. 49) in response to the motions or parts of the motions seeking dismissal on the grounds that plaintiff should not be permitted to proceed under a pseudonym.
Judge Hovland has referred the motions to the undersigned for preliminary consideration.
B. The alleged "defamatory" investigation
1. Events leading up to the search of the residence
The following account of the underlying investigation is taken from the affidavits and investigative reports filed by defendants in support of their respective motions. Plaintiff has "concede[ed] he cannot express facts or issues that might or will contradict the facts alleged by the Defendants' or the record or from the complaint.'" (Doc. No. 63).
SA Smith was assigned to the BCI's Internet Crimes Against Children Task Force as a computer forensics examiner. He was tasked with investigating the transfer of child pornography over the Internet via Peer to Peer ("P2P") networking technology and software. On May 2, 2014, he notified defendant Sgt. Goodman of the Minot PD that, on March 30, 2014, he had downloaded illicit images of minor females from a computer with IP address assigned to a single family residence located at 212 18th Ave NW, Minot, North Dakota. He also prepared and signed an application for a search warrant, which Sgt. Goodman presented to a state district court judge for consideration. (Doc. Nos. 33-1 through 33-4, 33-7, 64).
Attached to the search warrant application was a supporting affidavit (singled-spaced and thirteen pages in length) in which SA Smith explained how P2P file sharing works - specifically the operation of a BitTorrent network, how files that are transmitted through such a network can be tracked, why he had initiated his investigation of the subject IP address, when he was connected with and what he had downloaded from the computer with the subject IP address, and how he had located the residence to which the subject IP address was assigned. According to SA Smith's affidavit, he identified a computer with the subject IP address as a potential source of at least one file of investigative interest. From this computer he downloaded a total of 160 files, many of which contained images in which females estimated to be between the ages of 8 and 14 years of age were posing in various states of undress and exposing their breasts, vaginas, and anuses. Searching the American Registry of Internet Numbers, he learned that the computer's IP address belonged to Midcontinent Communications ("Midco"), a regional cable and internet service provider headquartered in Sioux Falls, South Dakota. He passed this information on to Homeland Security Investigations SA Darick Trudell, who was able to ascertain from basic subscriber information subpoenaed from Midco that the subject IP address had been assigned to Jose Garcia at 212 18th St. NW, Minot, North Dakota (hereinafter referred to as "the residence"). (Doc. Nos. 33-2, 64).
On May 5, 2014, a state district court judge approved SA Smith's search warrant application and issued a warrant authorizing law enforcement to search the residence and seize: computers and related peripherals, CD-ROMS, DVDs, digital media devices, and other storage mediums for inspection and forensic analysis; pornographic images and/or videos of children as well as files containing any such material in any form wherever they may be stored; information, documentation, and correspondence pertaining to the electronic receipt and/or transmission of child pornography; records regarding the ownership of digital media devices and removable storage; and evidence of any P2P networking software that would allow another to remotely control the computer on which it was installed. (Doc. No. 33-3).
2. Search of the residence including plaintiff's bedroom
SA Smith, Border Patrol Agent Shawn Keller, Sgt. Goodman, Det. Thompson, three other Minot Police Department Detectives (Greg Johnson, Jessica Mosman, and Jay Laudenshlager), and two Minot patrol officers (Jay Haaland and Aaron Moss) arrived at the residence on May 6, 2014, at 9:30 a.m. to execute the search warrant. They knocked and announced their presence. When no one responded, they entered the residence through an unlocked door. Inside, they encountered two adult females, Amanda and Dominique Garcia, with an infant on the main floor and three adult males in the basement. Two additional adults, one male and one female, Marybelle Garcia, arrived at the residence shortly thereafter. (Doc. Nos. 33-1, 33-7, 33-8, 33-9, 34, 35, 64 through 66).
Once the residence was secured, Sgt. Goodman and Det. Thompson began interviewing the persons present while the other Minot detectives began the search with assistance from SA Smith. On the main floor they found two laptop computers that presumably belonged to Amanda and Dominique Garcia. In the garage, they found a broken hard drive. In one of the rooms in the basement, they found an iPad mini along with a locked suitcase and a locked duffle bag. To gain access to the contents of the suitcase and duffle bag, SA Smith broke their respective zippers. Inside the suitcase Smith found a computer hard drive, two zip drives, and assorted CDs and DVDs. Inside the duffle bag Smith found a locked safe, which he proceeded to open with a screw driver. Inside the safe Smith found additional electronic media storage devices. All of these items were forensically previewed on-site by Smith. None of them contained any child pornography. (Doc. Nos. 33-1, 33-8, 33-9, 66).
Meanwhile, as Smith and company were conducting their search of the residence, Goodman and Thompson interviewed the seven adults encountered at the residence. During these interviews they were told that First Minot Management leased the residence to Jose and Marybelle Garcia, who in turn sublet their two basement bedrooms and garage (which had apparently been converted into two additional bedrooms); that the residence had as many as eleven occupants (the Garcia family and their subtenants) at any given time, and that Midco provided Internet service to the residence that all of its occupants could access wirelessly. They were also told that the Garcias had received a letter from Midco warning of an illegal download of inappropriate material by one of their former subtenants. With respect to plaintiff, they were told that he (1) had been subletting a room in the basement of the residence since about the end March 2014, (2) was working as a certified nursing assistant at a local nursing home, (3) drove a blue Hyundai with North Carolina plates, (4) owned a laptop computer that he carried with him in a blue bag, and (5) frequently used his laptop computer at the residence. (Doc. Nos. 33-1, 33-7, 33-8, 34-35, 64-65).
The bedroom that plaintiff was renting was the one that contained the locked suitcase and duffel bag that were searched by SA Smith. Although it does not make a difference in terms of the outcome here, Smith states that room was unlocked when he conducted his search and it appeared that plaintiff was sharing the room with another individual based on there being a sheet hanging in the middle dividing the room in half. (Doc. Nos. 33-1, 33-9, 33-10 & 33-11).
3. Contact with plaintiff at his place of work and subsequent search of the computer in his vehicle
Plaintiff was not at the residence when law enforcement arrived to search it; Sgt. Goodman and Det. Thompson were told that he was at work. Consequently, upon wrapping up their work at the residence, SA Smith, Goodman, and Thompson drove to the nursing home to speak with him. (Doc. Nos. 33-7, 33-8).
In the nursing home's parking lot, SA Smith observed plaintiff's vehicle, a blue Hyundai with North Carolina plates. Approaching the vehicle and looking through its windows, Smith saw a blue bag lying on the front seat with a laptop computer visible through the opening of the bag. Proceeding inside the nursing home, the officers located plaintiff with help from the staff. Meeting privately with plaintiff in a conference room, they advised him of their investigation, gave a Miranda warning, and asked for permission to search his vehicle. When plaintiff refused to consent, they advised plaintiff that they would seek a warrant to search his vehicle and laptop and that he could not remove his vehicle from the parking lot while the warrant was being obtained. Plaintiff was not told, however, that he could not leave the premises. While Smith, Goodman, and Thompson were away seeking the warrant, a uniformed patrolman in a squad car stood by in the parking lot securing plaintiff's vehicle. (Doc. Nos 33-1, 33-7, 33-8, 34, 5, 64 through 66).
Smith prepared and Goodman presented a search warrant application for plaintiff's vehicle. In his supporting affidavit (single spaced and fourteen pages in length), Smith supplemented information he had previously provided to the state district court judge with additional information obtained during his search of the residence and Goodman's and Thompson's interviews of those present at the scene. (Doc. No. 33-4).
The state district court judge approved the search warrant application and issued a search warrant for plaintiff's vehicle and for computers, electronic devices, media, etc located in the vehicle for the presence of child pornography. (Doc. No. 33-5). Goodman, Thompson, and Smith thereafter returned to the nursing home with the search warrant in hand. When executing the warrant, Smith forensically previewed the laptop computer on site. Like the items associated with plaintiff at the residence, the laptop in his vehicle was devoid of any child pornography. (Doc. Nos 33-1, 33-7, 33-8, 34, 35, 64 through 66).
The time period that plaintiff was denied access to his vehicle and laptop according to plaintiff's complaint was approximately two-and-one-half hours.
4. Followup contacts
Defendants later sought out Brian, the former subtenant of the Garcias whose illegal download of inappropriate material had prompted the warning letter from Midco. When asked what, if anything, he had done to warrant a "warning letter" from Midco, Brian admitted to defendants that he had used the P2P filing sharing software installed on his computer to download motions pictures. With Brian's permission, defendants searched both his residence and his computer. When forensically previewing the computer, Smith found P2P file sharing software along with the motion pictures Brian had admitted to downloading. He did not find any child pornography. (Doc. Nos. 33-1 & 33-6).
Also, in the days following law enforcement's search of the residence, Marybelle Garcia contacted Goodman to inquire about the status of the investigation and whether he had spoken with either plaintiff or the former subtenant to whom the "warning" letter had been directed. Goodman responded that law enforcement officers had spoken with both of them. He further advised that officers had been unable to locate the device from which SA Smith had downloaded the illicit images. (Doc. No. 34).
C. Plaintiff's initiation and dismissal of a state court action
In the summer of 2014, plaintiff initiated an action in state district court against officers Smith, Goodman and Thomas as well as other members of law enforcement who assisted in the investigation and were present when the search of the residence was conducted. When he initiated the action, he requested leave to proceed under the pseudonym "Jose Doe" on the grounds that he could be exposed to future stigma because of the subject matter of the underlying investigation and that he should not be required to proceed under his real name. The state district court denied his request, reasoning:
A vague and generalized fear of public stigma is insufficient reason to close otherwise public proceedings, or allow proceedings under a pseudonym. Court proceedings are replete with public stigma. A party may proceed to divorce by allegations of adultery, abuse, alcoholism, abandonment, and a host of other very personal wrongs. Public stigma attached to these wrongs does not allow a party to proceed under an assumed name. A party may be sued for non-payment of rents, debts, or child support. The stigma of a deadline debtor, or a deadbeat dad does not provide reason to shelter the defendant's identity from the public. A patient may sue her doctor for malpractice, opening her entire medical record for public scrutiny. These highly personal disclosures could be embarrassing. They still do not provide the plaintiff with a cause to proceed under an assumed name.
(Doc. No. 33-12). Plaintiff subsequently elected to voluntarily dismiss his state court action. (Doc. No. 33-13).
D. Plaintiff's complaint in this case
In relevant part, plaintiff alleges the following in his complaint:
1. This action arises out from the Minot Police Department, the Chief of Police, and his subordinates, and Federal agents, ("collectively Defendants") that in consequence intentionally and negligently violated the constitutional and state rights of this Plaintiff, among others, Jose Doe, for their own and public reasons. The context for these actions of overzealous investigations was the government's and local police's official investigation into computer child porn.
2. To reach their goals, without allowing the protections of criminal justice, the Minot Police Department, his subordinates and Federal agents ("hereinafter Defendants'") intentionally and negligently stomped on Plaintiff Jose Doe's (herein "Plaintiff" Doe) constitutional and state rights and their own rules. By using a facially valid general search warrant served at Plaintiff's residence, that I am a renter of a room in a basement from a single family home. Plaintiff had a reasonable expectation of privacy from the separate room rental of a door with a lock and key. Therefore, Defendants' conducted an illegal search and seizure of Plaintiff's room without a particular search warrant, additionally Plaintiff was not available for the illegal search. Nonetheless, all of the other residents and renters were available for the facial search warrant. Most importantly, Defendants' did not turn up any evidence of computer child porn crime.
3. To continue in their campaigning goal, Defendants' without an evidence or facts for proper justification, they continued by arriving to Plaintiff's place of employment because that is where I was at the time. At first, Defendants' investigation was at the residence and Plaintiff's rental room, which was somewhat private. Then, Defendants' continued, with gross reckless misconduct and without evidence, of their investigation right after the residential residence of Plaintiff's place to the public place of employment (medical facility) across the city and notifying my employer. Further, Defendants' continued Plaintiff's investigation publicly at employer's open public parking lot with a patrol vehicle blocking Plaintiff's personal vehicle in detention, for all the community to see. No official booking arrest resulted, nevertheless, the unlawful detention. They artfully damaged Plaintiff Doe's employment at said employer by their defamatory information of investigation of computer child porn without valid particular probable cause. Defendants' damaging effected Doe's ability to earn a living by way of depriving of liberty and property without due process of law in violation of the Fifth Amendment to the U.S. Constitution. Defendants' have a responsibility to uphold the U.S. Constitution and laws of the U.S.
4. Defendants' again, continued their campaign by contacting and notifying Plaintiff's landlord, Jose Garcia, at 212 18th St. N.W. Minot, ND, to inform him of the request to show a search warrant. When Plaintiff returned to the above referenced residence at the end of the day, Landlord Garcia was contacted and conveyed that the police are looking for the download of child porn and do not what the request for the search warrant was for. But to leave after the end of the month, because he (Garcia) does not want to rent the room to Plaintiff. Defendants' caused a wrongful eviction of Plaintiff causing to be homeless. Doe suffered damage in North Dakota to his reputation by defamation, emotional well-being, and his relationship with employer which resulted in termination and wrongful eviction, from Defendants' outrageous investigation, violating privacy, and departed from standard procedure of law enforcement and policies.
5. Defendant Federal Special Agent Jessie Smith, North Dakota Bureau of Criminal Investigation, was at all relevant times concerning offending actions described in this Complaint, the Special Agent that applied for the General Warrant for the Investigation, acting under color of law. This defendant is sued in his official and individual capacity for damages, injunctive, and declaratory relief.
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7. On May 6, 2014, Plaintiff interrupted by police at his employment of the nursing home facility in Minot, ND.
8. On May 6, 2014, Plaintiff was interrupted from work and told by managers at the nursing facility to arrive at a conference room. At the conference room, Plaintiff was informed to go to a conference room and Minot Officers and Special Agent detectives were awaiting to speak and question. This notified Plaintiff's employer at the nursing home of the criminal investigation ensuing and placing Plaintiff in a bad light.
9. Detective Goodman informed this Plaintiff Doe that an investigation for computer child porn was being conducted. Next, Det. Goodman relayed that earlier the residence of Jose Garcia, at 212 18th St., N.W. Minot, ND, which included Plaintiff's room rental was seized and searched. Further, Det. Goodman stated in continuing to search and seizure of Plaintiff's computer and property for criminal child porn. Plaintiff was detained at a point beyond any reasonable understanding of the immediate vicinity, that is the residence at 212 18th St. N.W. Minot.
10. Then, Det. Goodman stated that may Plaintiff may request a search warrant for the search and seizure. Though, Defendant Goodman had no evidence or facts to ...