Madkins v. T-Mobile Wireless Telephone Co.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE.

         Plaintiff Martye M. Madkins III brings this action pro se, ^[1] asserting claims for violation of state and federal wiretap statutes, violation of the Fourth Amendment, and conspiracy. Doc. 70. Each of the remaining defendants-Defendants T-Mobile Wireless Telephone Company, Glen Virden, Timothy Brown, and Alvin Babcock-has moved to dismiss Plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Docs. 74, 76, 85.

         After Plaintiff failed to file any response to the pending motions to dismiss, the Court issued an order to show cause why the motions should not be granted as unopposed pursuant to District of Kansas Rule 7.4(b). Doc. 87. In response to the Court's show cause order, Plaintiff requested additional time to respond to the motions to dismiss. Doc. 88. The Court granted Plaintiff's request and gave Plaintiff until July 27, 2018 to file his responses. Doc. 89. However, over three months later, Plaintiff has yet to respond to any of the pending motions. Because Plaintiff failed to respond to Defendants' motions to dismiss, and because Plaintiff otherwise fails to state a claim for relief, the Court grants Defendants' motions (Docs. 74, 76, 85) and dismisses Plaintiff's claims.

         I. BACKGROUND

         A. Criminal Investigation

         The following background is based on the record and accepts as true Plaintiff's well-pleaded factual allegations.^[2] This case stems from the interception of cellular communications in connection with an investigation-jointly conducted by the Kansas Bureau of Investigation (“KBI”), the Junction City Police Department, the Geary County Sheriff's Office, and the Riley County Police Department-into a suspected narcotics-trafficking conspiracy. In or around March and April 2013, Geary County District Court Judge David Platt entered a series of orders authorizing the interception of certain of the suspected conspirators' “wire communications.” Defendant Glen Virden-special agent with the KBI in charge of the investigation-executed the orders, with directives to Defendant T-Mobile Wireless Telephone Company (“T-Mobile”) and other service providers to intercept communications transmitted to and from the targeted phones. Virden affixed his signature to the orders, along with Defendant Timothy Brown (former chief of the Junction City Police Department) and Defendant Alvin Babcock (detective with the Junction City Police Department), among others.

         Pursuant to the orders, the investigating agents intercepted phone calls and text messages from the conspirators' phones. Federal criminal drug trafficking charges were ultimately filed against Plaintiff in this Court.

         B. Motions to Suppress

         1. Text Message Evidence

         In connection with the underlying criminal case, Plaintiff (and his co-defendants) moved to suppress text message evidence, arguing that the state court orders, on their face, authorized interception of “wire communications” only and did not permit authorities to intercept “electronic communications” (such as text messages). District Judge Daniel D. Crabtree agreed that the orders authorized interception of “wire communications” only and that text messages constitute “electronic” rather than “wire” communications. Judge Crabtree declined to suppress the text message evidence, however, finding that the investigators' conduct in intercepting the text messages fell within the “good faith” exception to the Fourth Amendment's exclusionary rule. In so holding, Judge Crabtree found that “the issuing judge and executing officers both understood the intended scope of the wiretap authorization, and that the authorization included interception of text messages.” United States v. Banks, 2014 WL 4261344, at *5 (D. Kan. 2014). Judge Crabtree concluded that the officers' reliance on this understanding was “objectively reasonable.” Id.

         2. Extra-Territorial Communications

         Plaintiff and his co-defendants also moved to suppress wiretap evidence, arguing that investigators had improperly intercepted communications outside of the territorial jurisdiction of the issuing judge (Judge Platt). During the hearing on Plaintiff's motion, Judge Crabtree ruled that the orders violated Kansas law to the extent they authorized the interception of communications on phones located outside Judge Platt's judicial district. Judge Crabtree accordingly ordered that the government present evidence regarding the physical location of the tapped phones at the time of the intercepted calls in order to determine which communications, if any, warranted suppression.

         Following the presentation of evidence, Judge Crabtree suppressed all but 7, 000 of the 67, 000 total communications intercepted during the course of the investigation. As to the 7, 000 surviving communications, Judge Crabtree ruled that the government had offered sufficient evidence that the communications were made by phones located inside Judge Platt's territorial jurisdiction. Judge Crabtree ordered the suppression of the extra-territorial intercepted communications. In connection with this decision, although declining to apply the exclusionary rule's good faith exception to evidence collected from wiretaps, Judge Crabtree noted that “one would not expect the officers executing search warrants to have apprehended the subtle, technical jurisdictional defect that forms the basis of the Court's threshold suppression ruling.” United States v. Banks, 2015 WL 2401048, at *3 (D. Kan. 2015), vacated on other grounds by Banks v. United States, 138 S.Ct. 2707 (2018).

         C. Civil Case

         Plaintiff proceeded to file this action for civil relief against various county officials, agencies, agency officials, and service providers, ^[3] alleging they violated state and federal law and the United States Constitution by intercepting and disclosing his communications (both oral and text) without proper judicial authorization. Docs. 1, 70. In the operative complaint, ^[4] Plaintiff asserts that Virden, Brown, and Babcock knew or had reason to know that the state court orders directed the interception of communications outside of Judge Platt's territorial jurisdiction. Doc. 70 ¶ 11. Plaintiff further alleges that-upon receipt of the order-T-Mobile improperly intercepted and disclosed text messages to the investigating authorities, even though the order did not expressly authorize the interception and disclosure of “electronic communications.” Id. at ¶¶ 12-13. Plaintiff claims that Virden, Brown, and Babcock knew they illegally obtained the messages and extra-territorial calls, but nonetheless provided them to prosecutors in violation of state and federal law. Id. at ¶¶ 14-16.

         Based on these allegations, Plaintiff asserts claims for: violation of the Kansas wiretap statute, K.S.A. §§ 22-2514, et seq.; violation of the federal Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. §§ 2510, et seq.; violation of the Fourth Amendment; and conspiracy. Id. at ¶¶ 21-45. Each of the four remaining defendants-T-Mobile, Virden, Brown, and Babcock-moves to dismiss Plaintiff's claims. Docs. 74, 76, 85.

         D. Plaintiff's Failure to Respond to the Pending Motions to Dismiss

         After Plaintiff failed to respond to T-Mobile, Brown, and Babcock's motions to dismiss, ^[5]the Court issued an order directing Plaintiff to show cause to the Court, on or before June 20, 2018, why the motions should not be granted as unopposed pursuant to District of Kansas Rule 7.4(b). Doc. 87 at 1. The Court further ordered that Plaintiff file responses to the motions by June 20, 2018. Id. The Court cautioned that a failure to comply with the order would result in the Court considering the motions to dismiss as unopposed. Id. at 1-2.

         On June 13, 2018, the Court received a letter from Plaintiff in response to the Court's order. Doc. 88. In his letter, Plaintiff requested an extension of time to respond to the pending motions, claiming, as justification, that he had not received copies of the motions to dismiss. Id. Noting that Plaintiff had been relocated to two different correctional facilities since the motions were filed, and therefore may not have received service of the motions, the Court granted the requested extension. Doc. 89 at 1. The Court directed the Clerk to send Plaintiff copies of the docket sheet and the pending motions (including Virden's) and further ordered that Plaintiff file his responses to all pending motions to dismiss on or before July 27, 2018. Id. at 1-2. Plaintiff nonetheless failed to respond to any of the motions to dismiss.

         II. ...