Mallak v. City of Chad

• Decision Date: 19 May 2016
• Docket Number: Nos. 15–1815,15–1819.,s. 15–1815
• Parties: Brook MALLAK, Plaintiff–Appellee v. CITY OF BAXTER; City of Brainerd; Cass County; Crow Wing County; City of Fridley ; City of Little Falls; City of St. Cloud; City of Staples; Department of Public Safety of the State of Minnesota; Chad Visser, acting in his individual capacity as an Officer of the Baxter Police Department; Julie McCullough, acting in her individual capacity as an employee of the Brainerd Police Department; Joel Reed, acting in his individual capacity as an Officer of the Brainerd Police Department, Defendants Anthony Runde, acting in his individual capacity as an Officer of the Brainerd Police Department; Perry Jones, acting in his individual capacity as a Detective for the Fridley Police Department; David Darling, acting in his individual capacity as an Officer of the St. Cloud Police Department, Defendants–Appellants Tyler Burke, acting in his individual capacity as an employee of the Crow Wing County Sheriff's Office; Amy Edberg, acting in her individual capacity as an employee of the Crow Wing County Sheriff's Department; Ryan Goff, acting in his individual capacity as a corrections officer for the Crow Wing County Sheriff's Office and in his individual capacity as an Officer of the City of Staples Police Department; Gary Gutenkauf, acting in his individual capacity as an Officer of the Crow Wing County Sheriff's Office; Ginger Heurung, acting in her individual capacity as a corrections officer for the Crow Wing County Sheriff's Office; Derek Lavoy, acting in his individual capacity as an investigator for the Crow Wing County Sheriff's Office; Illissa Ramm, acting in her individual capacity as an Assistant County Attorney in the Crow Wing County Attorney's Office; Michael Tripplet, acting in his individual capacity as a corrections officer for the Crow Wing County Sheriff's Office; Karri Turcotte, acting in her individual capacity as an employee of the Crow Wing County Sheriff's Office; Jon Vukelich, acting in his individual capacity as a Sergeant of the Crow Wing County Sheriff's Office; Ryan Barnett, acting in his individual capacity as an employee of Central Minnesota Community Corrections; Dawn Chouinard, acting in her individual capacity as an employee of Central Minnesota Community Corrections; Shannon Wussow, acting in her individual capacity as an employee of Central Minnesota Community Corrections; Colleen Berens; Laura Johnson; Lori Lucas ; Christine Madsen ; Joan Smith; Central Minnesota Community Corrections; John and Jane Does (1–500), acting in their individual capacities as supervisors, officers, deputies, staff, investigators, employees or agents of the other law-enforcement agencies; Entity Does (1–50), including cities, counties, municipalities, and other entities sited in Minnesota and federal departments and agencies, Defendants. Brook Mallak, Plaintiff–Appellee v. City of Baxter; City of Brainerd; Cass County; Crow Wing County; City of Fridley ; City of Little Falls; City of St. Cloud; City of Staples; Department of Public Safety of the State of Minnesota; Chad Visser, acting in his individual capacity as an Officer of the Baxter Police Department; Julie McCullough, acting in her individual capacity as an employee of the Brainerd Police Department; Joel Reed, acting in his individual capacity as an Officer of the Brainerd Police Department; Anthony Runde, acting in his individual capacity as an Officer of the Brainerd Police Department; Perry Jones, acting in his individual capacity as a Detective for the Fridley Police Department; David Darling, acting in his individual capacity as an Officer of the St. Cloud Police Department; Tyler Burke, acting in his individual capacity as an employee of the Crow Wing County Sheriff's Office; Amy Edberg, acting in her individual capacity as an employee of the Crow Wing County Sheriff's Department, Defendants Ryan Goff, acting in his individual capacity as a corrections officer for the Crow Wing County Sheriff's Office and in his individual capacity as an Officer of the City of Staples Police Department, Defendant–Appellant Gary Gutenkauf, acting in his individual capacity as an Officer of the Crow Wing County Sheriff's Office; Ginger Heurung, acting in her individual capacity as a corrections officer for the Crow Wing County Sheriff's Office; Derek Lavoy, acting in his individual capacity as an investigator for the Crow Wing County Sheriff's Office; Illissa Ramm, acting in her individual capacity as an Assistant County Attorney in the Crow Wing County Attorney's Office; Michael Tripplet, acting in his individual capacity as a corrections officer for the Crow Wing County Sheriff's Office; Karri Turcotte, acting in her individual capacity as an employee of the Crow Wing County Sheriff's Office; Jon Vukelich, acting in his individual capacity as a Sergeant of the Crow Wing County Sheriff's Office; Ryan Barnett, acting in his individual capacity as an employee of Central Minnesota Community Corrections; Dawn Chouinard, acting in her individual capacity as an employee of Central Minnesota Community Corrections; Shannon Wussow, acting in her individual capacity as an employee of Central Minnesota Community Corrections; Colleen Berens; Laura Johnson; Lori Lucas ; Christine Madsen ; Joan Smith; Central Minnesota Community Corrections; John and Jane Does (1–500), acting in their individual capacity as supervisors, officers, deputies, staff, investigators, employees or agents of the other law-enforcement agencies; Entity Does (1–50), including cities, counties, municipalities, and other entities sited in Minnesota and federal departments and agencies, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

823 F.3d 441

Brook MALLAK, Plaintiff–Appellee

v.CITY OF BAXTER; City of Brainerd; Cass County; Crow Wing County; City of Fridley ; City of Little Falls; City of St. Cloud; City of Staples; Department of Public Safety of the State of Minnesota; Chad Visser, acting in his individual capacity as an Officer of the Baxter Police Department; Julie McCullough, acting in her individual capacity as an employee of the Brainerd Police Department; Joel Reed, acting in his individual capacity as an Officer of the Brainerd Police Department, Defendants

Anthony Runde, acting in his individual capacity as an Officer of the Brainerd Police Department; Perry Jones, acting in his individual capacity as a Detective for the Fridley Police Department; David Darling, acting in his individual capacity as an Officer of the St. Cloud Police Department, Defendants–Appellants

Tyler Burke, acting in his individual capacity as an employee of the Crow Wing County Sheriff's Office; Amy Edberg, acting in her individual capacity as an employee of the Crow Wing County Sheriff's Department; Ryan Goff, acting in his individual capacity as a corrections officer for the Crow Wing County Sheriff's Office and in his individual capacity as an Officer of the City of Staples Police Department; Gary Gutenkauf, acting in his individual capacity as an Officer of the Crow Wing County Sheriff's Office; Ginger Heurung, acting in her individual capacity as a corrections officer for the Crow Wing County Sheriff's Office; Derek Lavoy, acting in his individual capacity as an investigator for the Crow Wing County Sheriff's Office; Illissa Ramm, acting in her individual capacity as an Assistant County Attorney in the Crow Wing County Attorney's Office; Michael Tripplet, acting in his individual capacity as a corrections officer for the Crow Wing County Sheriff's Office; Karri Turcotte, acting in her individual capacity as an employee of the Crow Wing County Sheriff's Office; Jon Vukelich, acting in his individual capacity as a Sergeant of the Crow Wing County Sheriff's Office; Ryan Barnett, acting in his individual capacity as an employee of Central Minnesota Community Corrections; Dawn Chouinard, acting in her individual capacity as an employee of Central Minnesota Community Corrections; Shannon Wussow, acting in her individual capacity as an employee of Central Minnesota Community Corrections; Colleen Berens; Laura Johnson; Lori Lucas ; Christine Madsen ; Joan Smith; Central Minnesota Community Corrections; John and Jane Does (1–500), acting in their individual capacities as supervisors, officers, deputies, staff, investigators, employees or agents of the other law-enforcement agencies; Entity Does (1–50), including cities, counties, municipalities, and other entities sited in Minnesota and federal departments and agencies, Defendants.

Brook Mallak, Plaintiff–Appellee

v.City of Baxter; City of Brainerd; Cass County; Crow Wing County; City of Fridley ; City of Little Falls; City of St. Cloud; City of Staples; Department of Public Safety of the State of Minnesota; Chad Visser, acting in his individual capacity as an Officer of the Baxter Police Department; Julie McCullough, acting in her individual capacity as an employee of the Brainerd Police Department; Joel Reed, acting in his individual capacity as an Officer of the Brainerd Police Department; Anthony Runde, acting in his individual capacity as an Officer of the Brainerd Police Department; Perry Jones, acting in his individual capacity as a Detective for the Fridley Police Department; David Darling, acting in his individual capacity as an Officer of the St. Cloud Police Department; Tyler Burke, acting in his individual capacity as an employee of the Crow Wing County Sheriff's Office; Amy Edberg, acting in her individual capacity as an employee of the Crow Wing County Sheriff's Department, Defendants

Ryan Goff, acting in his individual capacity as a corrections officer for the Crow Wing County Sheriff's Office and in his individual capacity as an Officer of the City of Staples Police Department, Defendant–Appellant

Gary Gutenkauf, acting in his individual capacity as an Officer of the Crow Wing County Sheriff's Office; Ginger Heurung, acting in her individual capacity as a corrections officer for the Crow Wing County Sheriff's Office; Derek Lavoy, acting in his individual capacity as an investigator for the Crow Wing County Sheriff's Office; Illissa Ramm, acting in her individual capacity as an Assistant County Attorney in the Crow Wing County Attorney's Office; Michael Tripplet, acting in his individual capacity as a corrections officer for the Crow Wing County Sheriff's Office; Karri Turcotte, acting in her individual capacity as an employee of the Crow Wing County Sheriff's Office; Jon Vukelich, acting in his individual capacity as a Sergeant of the Crow Wing County Sheriff's Office; Ryan Barnett, acting in his individual capacity as an employee of Central Minnesota Community Corrections; Dawn Chouinard, acting in her individual capacity as an employee of Central Minnesota Community Corrections; Shannon Wussow, acting in her individual capacity as an employee of Central Minnesota Community Corrections; Colleen Berens; Laura Johnson; Lori Lucas ; Christine Madsen ; Joan Smith; Central Minnesota Community Corrections; John and Jane Does (1–500), acting in their individual capacity as supervisors, officers, deputies, staff, investigators, employees or agents of the other law-enforcement agencies; Entity Does (1–50), including cities, counties, municipalities, and other entities sited in Minnesota and federal departments and agencies, Defendants.

Nos. 15–1815

15–1819.

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2016.

Filed: May 19, 2016.

Jon K. Iverson, argued, Bloomington, MN (Susan M. Tindal and Stephanie A. Angolkar, on the brief), for Appellants in Case 15–1815.

Jason M. Hill, argued, Minneapolis, MN, for Appellant in Case 15–1819.

Robin M. Wolpert, argued, Minneapolis, MN (Jonathan A. Strauss, Lorenz F. Fett, Jr., and Sonia Miller–Van Oort, on the brief), for Appellee.

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Brook Mallak sued various municipalities and their employees under the Driver's Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721 –25, alleging that these employees had accessed improperly her personal data on a number of occasions. The defendants moved for summary judgment based on qualified immunity. The district court¹ granted the motion with respect to some of the defendants, but it denied qualified immunity to those defendants for whom a genuine issue of fact remained regarding the purpose for which they accessed Mallak's data. The defendants denied qualified immunity now appeal that denial. We dismiss the appeal for lack of jurisdiction.

I.

The Minnesota Department of Vehicle Services (“DVS”), a division of the Department of Public Safety (“DPS”), maintains a database of information related to Minnesota drivers. This information includes each driver's name, date of birth, driver's license number, address, photograph, weight, height, social security number, health and disability information, and eye color.

Mallak is a practicing attorney in Brainerd and Little Falls, Minnesota. In 2013, Mallak requested from DPS an audit report of accesses of her driver's license information. This report revealed that Minnesota municipal and state personnel had accessed Mallak's information approximately 190 times between 2003 and 2012.

Mallak sued various counties and municipalities whose employees had accessed her data. She alleged that she had no interactions with law-enforcement personnel that would have justified the access of her personal information. As a result, she claimed, the accesses documented by the audit report violated her rights under the DPPA, the United States Constitution, and Minnesota's common-law right of privacy.

Prior to the ruling that resulted in the instant appeal, the district court ruled on several motions to dismiss Mallak's suit. The court dismissed all DPPA claims based on inquiries that occurred prior to a four-year statute-of-limitations period, as well as the constitutional and common-law claims. The court permitted Mallak to proceed with DPPA claims involving data accesses by five counties and six cities that occurred within the statute-of-limitations period. After an initial phase of discovery, these defendants moved for summary judgment on the basis of qualified immunity, which the district court granted in part and denied in part based on the evidence available with respect to each claim. The district court granted summary judgment to those officers who offered a definitive, uncontested, and permissible explanation for their accesses of Mallak's data.² However, the district court denied summary judgment with respect to accesses by four law-enforcement officers: Officer Anthony Runde, Detective Perry Jones, Officer David Darling, and Officer Ryan Goff.

Officer Anthony Runde of the Brainerd Police Department accessed Mallak's data on September 8, 2009. Officer Runde's affidavit stated that he was “confident” that this access was in connection with a drug-related investigation of one of Mallak's associates. However, Officer Runde also knew Mallak because he had served with her on a DWI court team, from which Mallak had resigned one week prior to Officer Runde's access of her data.

Detective Perry Jones of the Fridley Police Department accessed Mallak's data on June 28, 2011. Like Officer Runde, Detective Jones suggested that he may have accessed Mallak's data in connection with the investigation of Mallak's associate. However, Detective Jones and Mallak attended high school together, and Jones previously had contacted Mallak to discuss legal matters.

Officer David Darling of the St. Cloud Police Department accessed Mallak's data on July 11, 2010. At the time of Officer Darling's inquiry, Mallak's child was on life support at a...