United States District Court, D. Kansas
MARTYE M. MADKINS, III, Plaintiff,
v.
T-MOBILE WIRELESS TELEPHONE COMPANY, et al., Defendants.
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.
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