Kimberlin v. Frey
| Decision Date | 21 July 2017 |
| Docket Number | Case No.: GJH-13-3059 |
| Parties | BRETT KIMBERLIN, Plaintiff, v. PATRICK FREY, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
As the Court has previously stated, "this case is the latest in a protracted series of disputes between and among the parties here." ECF No. 263 at 1.1 Plaintiff Brett Kimberlin originally brought suit against numerous Defendants, including Patrick Frey, for their alleged involvement in a criminal enterprise to spread false and defamatory stories about him and profit off these stories. See generally ECF No. 135. In a Memorandum Opinion dated March 26, 2015, the Court granted a total of fourteen Motions to Dismiss, but denied dismissal of one claim against Frey. ECF No. 263 at 37. Kimberlin and Frey have now filed cross-motions for Summary Judgment on Kimberlin's remaining 42 U.S.C. § 1983 claim against Frey, in which he claims that Frey retaliated against him for exercising his First Amendment rights. ECF Nos. 391 & 392. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Plaintiff's Cross-Motion for Summary Judgment is denied and Defendant's Cross-Motion for Summary Judgment is granted.
At all limes relevant to the action, Frey worked as a Deputy District Attorney for Los Angeles County in the State of California. ECF No. 391 ¶ 4. In his capacity as a prosecutor, Frey had the power to initiate criminal investigations. Id. Frey also published, and continues to publish through the writing of this Opinion, a personal blog called Patterico's Pontifications. Id. ¶ 7.2
Beginning in 2010, Frey began writing what would become a series of blog posts about Kimberlin. Id. ¶ 9.3 On October 11, 2010, the day of the first blog post mentioning Kimberlin, Frey received an email titled "Brett Kimberlin - CEASE AND DESIST/INTENT TO SUE - Patterico" from Kimberlin, alleging that Prey's post had "defamed and libeled" him. ECF No. 392-4 at 4. Kimberlin told Frey that Id. at 5. Frey wrote back, stating Id. at 4. Kimberlin responded stating, "I have no beef with you and I never even heard of you or your blog until today when I got the Google alert..." Id. However, Kimberlin warned that Frey's failure to pull the post could have consequences, stating "I have filed over a hundred lawsuits and another one will be no sweat for me." Id.
On October 20, 2010, Kimberlin filed a complaint against Frey with the Los Angeles County District Attorney's Office ("LACDA" or the "Office"). ECF No. 405-2. In the complaint, he alleged that Frey had posted defamatory statements about him on his personal blog and that Frey had committed other ethical and professional violations. Id. On November 1, 2010, Kimberlin spoke with Anne Ingalls, Frey's direct supervisor, about his allegations and emailed her a copy of his complaint. ECF No. 405-4. That same day, Frey also emailed Ingalls, stating in part, that:
Kimberlin again contacted LACDA on November 8, 2010, reiterating his allegations that Frey had, through his blog, "acted in a manner unbecoming of a state employee." ECF No. 405-5. Julie Dixon Silva, Chief Legal Advisor at LACDA, replied a few days later, acknowledging that they had received his complaint and advising him that, "[t]his Office will review the allegations to determine if there are any department policy violations." Id.
On January 21, 2011, Kimberlin contacted LACDA for a fourth time, stating that Frey was "continuing to harass me," and attaching Frey's blog post from that morning, which discussed a political dispute between Glenn Beck and blogger Brad Friedman, who Frey previously alleged is Kimberlin's business partner.5 ECF No. 405-6 at 1. Although Kimberlin stated that Frey's blog is "simple retaliation for me bringing to your attention his unethical behavior," Kimberlin's complaints to Frey's office are not mentioned in the blog post. Id.6
Kimberlin sent the LACDA a fifth complaint on February 15, 2011, again alleging that Frey's blog post contained references that attacked Kimberlin and were in retaliation for Kimberlin's protected complaint against him. ECF No. 405-8 at 1. Specifically, Kimberlin highlighted a portion of Frey's blog post where Frey states:
As I revealed yesterday, Brett Kimberlin has written numerous e-mails to my bosses, complaining about me and calling me a stalker. In his latest, he said: In addition, two secretaries in my office told me that Kimberlin called them ranting about me, calling me a racist, a stalker, and saying he was going to get a restraining order against me. There is more.
Id. at 3. Kimberlin states that he never talked to Frey's secretary and that he was scared that Frey was "gin[ing] up people against me to get me hurt." Id. at 1. However, the quote in the blog post is undisputedly Kimberlin's own words, taken from an email Kimberlin sent to the LACDA and Frey on January 21, 2011. ECF No. 405-6 at 1.
The LACDA responded to Kimberlin the next day, notifying him that his complaint had been looked into and they had determined that "Mr. Frey had not violated any [District Attorney] policies." ECF No. 405-8 at 1. The LACDA further stated that, Id. On February 23, 2011, Kimberlin sent another email to the LACDA, attaching an article about a deputy district attorney in Indiana who lost his job because of social media activity, and requested that the LACDA reconsider their decision, ECF No. 405-9 at 1.
On July 1, 2011, a prank call was made to the sheriff's office in Los Angeles County. ECF No. 392-3 at 2. In that call, an unknown caller stated that he shot his wife and gave the police Frey's address. Id. This call dispatched a team of sheriff's deputies to Frey's house, who, thinking they were responding to a potential homicide, pointed loaded guns at Frey and placed him in handcuffs before discovering the call was a hoax. Id. The parties have since referred to this incident as a "swatting" incident.7
Id. Frey also staled that he "would like someone in local law enforcement to speak with New-Jersey authorities about a New Jersey incident" that he believed was related to his own based on the fact that both he and the New Jersey victim had written blog posts about a Democratic Congressman. Id. Frey concluded by stating that "[m]y bottom line is that I would appreciate it if our Bureau of Investigation could become involved, at least to help accomplish these two important objectives (the voice comparison and the phone call to New Jersey)." Id. at 2. Frey signed the email as "Patrick Frey, Deputy District Attorney, Los Angeles County District Attorney's Office." Id. Ingalls then forwarded this message to her supervisor stating "I hope we can encourage our Bureau to follow up on Patrick's requests." ECF No. 403-1 at 35.
Frey wrote again to Ingalls on August 16, 2011. He asked whether she "had heard anything more on the request to have investigators look into a couple of areas on the situation where the police showed up to my house . . . As you may recall, I have a possible suspect who sounds like the caller and has ties to Brett Kimberlin." ECF No. 391-43 at 1. Frey further stated that:
I talked to a sound expert who sometimes does contract work for [the Los Angeles Sheriff's Department], and he said a basic analysis . . . would take about 2 hours and cost about $500 . . . $500 doesn't seem like a huge expense under the circumstances, and maybe this guy would do it cheaper for the Sheriff's Department. Frankly if law enforcement never does the analysis, I will pay the money...
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