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Banks v. Opat

United States District Court, D. Kansas

March 20, 2019

ALBERT DEWAYNE BANKS, Plaintiff,
v.
STEVEN L. OPAT, et al., Defendants.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE

         In this action, pro se[1] Plaintiff Albert Banks asserts claims for violation of state and federal wiretap statutes, violation of the Fourth Amendment, and conspiracy related to the interception of his cellular communications in connection with a criminal investigation. Doc. 74. Plaintiff seeks reconsideration of the Court's November 16, 2018 Memorandum and Order granting the motions to dismiss filed by each of the remaining defendants to this action-Defendants Steven Opat, Glen Virden, Timothy Brown, Sprint/Nextel Wireless Telephone Company, and Virgin Mobile USA/Sprint PCS.[2] Doc. 109. For the reasons discussed below, the Court denies Plaintiffs motion.

         I. BACKGROUND

         The factual background underlying the parties' dispute is set forth in detail in the Court's November 16, 2018 order and is not repeated at length herein. Id. In sum, this case stems from the interception of Plaintiff s cellular communications in connection with an investigation into a suspected narcotics-trafficking conspiracy. Following that investigation, Plaintiff was indicted on federal criminal drug trafficking charges. Plaintiff subsequently filed this civil action, alleging that various officials, agencies, and service providers violated state and federal law and the United States Constitution by intercepting and disclosing his communications without proper judicial authorization. Based on these allegations, Plaintiff asserted 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.

         Defendants-each of whom was associated to some extent with either the investigation into or the prosecution of the drug trafficking allegations-moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff failed to state a claim for relief. On November 16, 2018, the Court agreed, granting Defendants' motions and dismissing Plaintiff's claims. Doc. 109. In its order, the Court found that: (1) Plaintiff's claims under the Kansas wiretap statute and the federal ECPA are barred by the good faith defense; (2) qualified immunity protects Opat, Virden, and Brown from individual liability for Plaintiff's Fourth Amendment claim; (3) Plaintiff's Fourth Amendment claim against the Sprint Defendants likewise fails because Plaintiff cannot show the requisite state action and, regardless, the Sprint Defendants are absolutely immune from liability; and (4) Plaintiff fails to establish the existence of an underlying unlawful act necessary to support his conspiracy claim or to plead sufficient facts. Id. Judgment was accordingly entered in favor of Defendants. Doc. 110. On December 13, 2018, however, Plaintiff moved to alter or amend the Court's judgment pursuant to Rule 59(e).[3] Doc. 111.

         II. STANDARD

         District of Kansas Rule 7.3(a) provides that “[p]arties seeking reconsideration of dispositive orders or judgments must file a motion pursuant to Fed.R.Civ.P. 59(e) or 60.” Grounds warranting relief from judgment under Rule 59(e) include: (1) an intervening change in controlling law, (2) the availability of new evidence that could not have been obtained previously through the exercise of due diligence, and (3) the need to correct clear error or prevent manifest injustice. Brinkman v. Norwood, 2018 WL 1806758, at *1 (D. Kan. 2018); see also Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Such a motion “is appropriate where the court has misapprehended the facts, a party's position, or the controlling law.” Servants of the Paraclete, 204 F.3d at 1012. But it is not a vehicle to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Id. Nor is it “a second chance for the losing party to make its strongest case or to dress up arguments that previously failed.” Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D. Kan. 1994). The party seeking relief bears the burden of demonstrating that he is entitled to such relief. Brinkman, 2018 WL 1806758, at *1. Reconsideration of a judgment is an extraordinary remedy and should be used sparingly. Id.

         III. ANALYSIS

         Plaintiff moves under the third ground for relief only: the need to correct clear error or prevent manifest injustice. Doc. 111. Plaintiff asserts nine different bases that he alleges constitute error warranting reconsideration, arguing: (1) the Court erred in relying on the statutory good faith defense to dismiss Plaintiffs wiretap claims; (2) Judge Crabtree's findings with respect to good faith in the underlying criminal case have no applicability to the disposition of Plaintiff s claims here; (3) Tenth Circuit precedent dictates that the good faith exception does not apply to improper execution of a warrant; (4) the Court erred in finding Plaintiff failed to state a Fourth Amendment claim; (5) Opat, Virden, and Brown are not entitled to qualified immunity because they violated a clearly established right; (6) Opat, Virden, and Brown are also subject to liability in their official capacities because their conduct was representative of an institutional policy or custom; (7) the Court erred in finding the Sprint Defendants did not act under color of state law; (8) the Sprint Defendants are not entitled to absolute immunity because their actions were not authorized by the wiretap orders; and (9) Plaintiff has pleaded sufficient facts to establish a conspiracy. Id.

         The first three bases identified by Plaintiff appear to go to the disposition of his state and federal wiretap claims, and bases four through eight are directed at his Fourth Amendment claim. The final alleged basis for error concerns the Court's dismissal of Plaintiff s conspiracy claim. The Court accordingly addresses the allegations of error with respect to each claim.

         A. Alleged Error in Dismissal of State and Federal Wiretap Claims

         Counts I and II of the amended complaint assert claims against Defendants under the Kansas wiretap statute and the federal ECPA. The Court held that both counts failed to state a claim because the wiretap statutes provide a complete defense where a defendant relies in “good faith” upon a court order authorizing interception. Doc. 109 at 6-8. Accordingly, based on Judge Crabtree's findings in the underlying criminal case, the Court held that Defendants were immune from suit under the good faith exceptions. Id. at 8. The Court further found that the Sprint Defendants-as “providers of wire or electronic communication service”-were also statutorily exempt from liability under the ECPA. Id. at 8-9.

         In his motion, Plaintiff generally argues that the Court erred in relying on the statutory good faith defense to dismiss his wiretap claims. Doc. 111 at 2. But Plaintiff identifies no clear error in the Court's judgment, instead either rehashing arguments already advanced or presenting new legal theories that could have been-but were not-raised in his prior briefing. Neither approach is the proper function of a Rule 59(e) motion.

         First, Plaintiff contends that Judge Crabtree's findings with respect to good faith in the underlying criminal case have no applicability to the disposition of Plaintiff's claims in this action. Id. Specifically, Plaintiff argues it was improper for the Court to rely upon Judge Crabtree's findings because Plaintiff presented facts in this action that were not considered by Judge Crabtree. Id. at 2-5. The Court already rejected this argument in its order, holding the Court was entitled to rely upon the findings in the underlying criminal case in concluding that Defendants' good faith provided a complete defense to Plaintiff's wiretap claims. Doc. 109 at 8; see, e.g., Wright v. Florida, 495 F.2d 186, 1090 (5th Cir. 1974) (holding that good faith reliance on a court order is a defense to both Fourth Amendment claims and § 2520 of the ECPA); Reed v. Labbe, 2012 WL 5267726, at *9 (C.D. Cal. 2012) (relying on findings of the district court and court of appeals in plaintiff's underlying criminal case in concluding that ยง 2520(d) provided a complete defense to plaintiff's claims under the ECPA, warranting dismissal under Rule 12(b)(6)). This argument merely rehashes issues ...


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