Michael Jayne v. Steve Blunk

FILED
NOT FOR PUBLICATION OCT 04 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL AARON JAYNE, No. 10-17310
Plaintiff - Appellant, D.C. No. 2:07-cv-02522-LKK-
KJN
v.
STEVE BLUNK, Anderson Police Officer; MEMORANDUM *
COLLIER, Anderson Police Detective;
ANDERSON POLICE DISPATCH,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted September 13, 2012
San Francisco, California
Before: WALLACE, GRABER, and BERZON, Circuit Judges.
Michael Aaron Jayne appeals from the district court’s summary judgment in
his 42 U.S.C. § 1983 action alleging that Defendants Steve Blunk, Regina Collier,
and the Anderson Police Department violated his rights by seeking to obtain his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
cell phone location data without a warrant. We review the district court’s decision
de novo, Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), and affirm.
1. With respect to Jayne’s Fourth Amendment claim, it is undisputed that the
Anderson Police Department submitted a request to Sprint Nextel for Jayne’s cell
phone location data without first obtaining a warrant. But that request was
withdrawn hours later, before any contemporaneous GPS location information was
collected and before any historical data indicative of location were received.
Although Sprint Nextel sent Defendants some records after the request was
rescinded, Defendants attest that the records were immediately destroyed.
Moreover, there is no evidence that Sprint Nextel included location data in those
records, in disregard of the withdrawal of the request for such data.
Even if the records had contained location data, there was still no search by a
governmental entity, subject to the Fourth Amendment, as the government did not
acquiesce in the continuation of GPS location surveillance or transmission of the
historical cell phone location data that Sprint Nextel already had. See Coolidge v.
New Hampshire, 403 U.S. 443, 487 (1971) (stating that Fourth Amendment
interests are implicated where a private party acts as an “‘instrument’ or agent of
the state” in effecting a search or seizure); United States v. Cleaveland, 38 F.3d
1092, 1093 (9th Cir. 1994) (explaining that unless the government acquiesces in a
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private party’s search, the search does not implicate the Fourth Amendment);
United States v. Sherwin, 539 F.2d 1, 6 (9th Cir. 1976) (en banc) (“A private
person cannot act unilaterally as an agent or instrument of the state; there must be
some degree of governmental knowledge and acquiescence. In the absence of such
official involvement, a search is not governmental.”).
Jayne attests that he saw a document listing telephone numbers obtained
from his call records. But there is no reasonable expectation of privacy in the
phone numbers dialed or from which calls are received, so the acquisition of such
information does not constitute a search under the Fourth Amendment. See Smith v.
Maryland, 442 U.S. 735, 745–46 (1979).
2. In absence of evidence that Defendants obtained cell phone location
records, there is no basis for claiming that the government violated the Stored
Communications Act (“SCA”), 18 U.S.C. §§ 2701–2712, with respect to such
records. Thus, even if a claim against the government based on the SCA were
cognizable under § 1983—which we do not decide—Defendants are entitled to
summary judgment on Jayne’s claim for § 1983 relief arising from purported
violations of his statutory rights.
3. Finally, Jayne’s First Amendment retaliation claim cannot survive
summary judgment because he has presented no evidence from which a reasonable
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jury could conclude that the named defendants caused any retaliation suffered. See
Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1232 & nn. 28–29 (9th Cir. 2006)
(citing Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.
1999) (“In order to demonstrate a First Amendment violation, a plaintiff must
provide evidence showing that ‘by his actions [the defendant] deterred or chilled
[the plaintiff's protected] speech and such deterrence was a substantial or
motivating factor in [the defendant's] conduct.’”) (alterations in original)). The
individual defendants were not the officers responsible for the allegedly violative
action—the warrantless request for Jayne’s cell phone records. Nor is there any
evidence that they were aware of Jayne’s past disputes with, or grievances against,
parole agent Randy Abney, or had been prompted by Abney to act.
Furthermore, the Anderson Police Department cannot be held liable under
§ 1983 absent evidence that the purported violation of Jayne’s rights was effected
pursuant to a policy or custom of the Department. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). Jayne has not shown that it was Department policy or
custom to obtain cell phone location data without a warrant, and he cannot “prove
the existence of a municipal policy or custom based solely on the occurrence of a
single incident of [purportedly] unconstitutional action by a non-policymaking
employee.” Davis v. City of Ellensburg, 869 F.2d 1230, 1233–34 (9th Cir. 1989)
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(citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality
opinion)).
AFFIRMED.
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