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Brunner v. City of Lake Stevens

United States District Court, W.D. Washington, Seattle

March 21, 2017




         This matter comes before the Court on the motions for summary judgment by Defendants City of Lake Stevens and Dan Lorentzen (Dkt. No. 56) and Defendant Andrew Thor (Dkt. No. 58). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motions for the reasons explained herein.

         I. BACKGROUND[1]

         Plaintiff Natalie Brunner[2] and Defendant Andrew Thor met online and entered into a personal relationship in early 2011. (Dkt. No. 59-1 at 13.) At the time, Brunner believed that she was in a relationship with “Drew Kidd.” (Id. at 18.) Over the course of their three-and-a-half-year relationship, Thor crafted numerous stories about his identity in an attempt to hide the fact that he was married with a family. (Dkt. No. 59-5 at 3.) Thor repeatedly lied about his occupation, claiming he was employed by the U.S. Army Special Forces, British Special Air Services, and the U.S. Central Intelligence Agency. (Id.) In reality, Thor was a police officer with the Lake Stevens Police Department (the Department). (Dkt. No. 59-4 at 2.)

         In May 2013, Brunner was followed to her sister's home by a black SUV. (Dkt. No. 57-1 at 31-32.) As she got out of her car, the SUV passed at a slow pace, then turned around and drove by once more. (Id. at 31.) Brunner saw multiple men in the car, with Thor sitting in the middle seat. (Id. at 31-32.) She thought this was strange, because she believed he was out of the country. (Id. at 32.) The car sped off quickly. (Id.) When Brunner asked Thor-whom she still believed to be Drew Kidd-he told her he drove by because “his team was in Seattle for something.” (Id.) Later, when Brunner discovered Thor's true identity, she came to believe that the men in the SUV were Thor's fellow law enforcement officers. (Dkt. No. 76 at 8.)

         Then, in November, four Pierce County Sheriff's deputies came to Brunner's townhouse in Puyallup. (Dkt. No. 57-1 at 50-51.) They told Brunner that there was a kidnap victim named Brittany who called and said she was at Brunner's address. (Id. at 51.) Brunner's address was complicated and she had recently moved in, so she felt it was “a little odd and bewildering” that someone would have given her exact address. (Id. at 52.) Brunner later saw on Facebook that one of the deputies was in a picture with Thor and that the deputy was in a relationship with a woman named Brittany. (Id.)

         In October 2014, Brunner and Thor took a trip together to Anacortes. (Dkt. No. 59-1 at 43; Dkt. No. 59-4 at 4.) During that trip, Thor asked Brunner if she wanted to see the “book report” he had on her. (Dkt. No. 59-1 at 47.) Thor showed Brunner several pages of personal information about her, including her driver's license and Social Security card. (Id.) Thor then wanted to show Brunner his guns, even though she had told him guns made her uncomfortable. (Id. at 48.) Afterwards, at about 1:00 a.m., Thor suggested they take a walk. (Dkt. No. 59-4 at 4.) During the walk, Thor told Brunner “a story from a recent mission during which he had captured and interrogated a terrorist leader and killed his body guards by poisoning them and then shooting them to finish them off.” (Id.)

         Brunner's mother and friends had told her several times that “something was off with Drew” (referring to Thor by the name he gave Brunner). (Id. at 5.) After the weekend in Anacortes, Brunner researched Thor online. (Id.) She had seen a military ID card for “Andrew Thor” during an earlier visit with him, so she typed that name into Google. (Id.) Her search turned up a link to a TV news video featuring Thor in his Department uniform speaking about identity theft. (Id.) Brunner was shocked. (Id.) A subsequent Facebook search revealed that Thor was married with a child. (Dkt. No. 57-1 at 55.)

         Once Brunner became aware of Thor's real identity, she contacted the Department and informed them of Thor's conduct. (See Dkt. No. 59-4.) Brunner later learned that Thor had accessed her confidential information using the Department database. (Dkt. No. 57-1 at 46.)

         The Department placed Thor on paid leave and investigated his conduct. (Dkt. No. 57-2 at 6.) The findings of the investigation included the following: (1) “Officer Thor used information he obtained as a result of his employment for personal use, without the express permission of the Chief of Police or his designee”; (2) “Officer Thor engaged in a pattern of wrongful and unlawful exercise of authority, criminal, dishonest, and disgraceful conduct, and other on-duty and off-duty conduct which is unbecoming of this department and clearly contrary to department rules”; and (3) “[t]here is insufficient evidence that Officer Thor disseminated any protected information to a party that did not have a right or need to know.” (Id. at 7-8.) As a result of the investigation, Thor resigned. (See Id. at 7.)

         Brunner took out a restraining order against Thor. (Dkt. No. 50 at 2.) However, she believes that he continued to research and monitor her online. (Id.)

         On November 9, 2015, Brunner filed the present suit against Thor, Department Chief Dan Lorentzen, and the City of Lake Stevens. (Dkt. No. 1 at 1.) She alleged violations of 42 U.S.C. § 1983, violation of the Washington Constitution, negligence, assault, battery, and fraud and misrepresentation. (Dkt. No. 1 at 13-20.)

         Defendants now move for summary judgment dismissal of all claims. (Dkt. Nos. 56, 58.)


         A. Summary Judgment Standard

         The Court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In making such a determination, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party must present specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are those that may affect the outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. Ultimately, summary judgment is appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

         B. Section 1983

         Count One of Brunner's complaint makes a § 1983 claim against Thor, [3] alleging violations of Brunner's liberty, privacy, and equal protection rights, as well as her rights against excessive force and unreasonable search and seizure. (See Dkt. No. 1 at 13-14.) Count Two alleges a § 1983 claim against Chief Lorentzen and the Department based on their supervision of Thor. (Id. at 14-15.)

         1. Standards: Section 1983 and Qualified Immunity

         To establish liability under 42 U.S.C. § 1983, a plaintiff must demonstrate that (1) the defendant acted under color of state law, and (2) the defendant deprived the plaintiff of a right secured by the Constitution or laws of the United States. Learned v. City of Bellevue, 860 F.2d 928, 933 (9th Cir. 1988). Section 1983 liability generally arises only upon a showing of a defendant's personal participation in the alleged violations.[4] Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

         The doctrine of qualified immunity acts as a bar against § 1983 claims insofar as the government official's conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant raises the defense of qualified immunity, the plaintiff bears the burden of proving the existence of a clearly established right at the time of the allegedly impermissible conduct. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). The Court “do[es] not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). It will not suffice to merely articulate a broad constitutional right. See Id. at 742. “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Id. “If the plaintiff cannot meet this burden, the inquiry ends and defendants are entitled to summary judgment.” Sepatis v. City and Cnty. of San Francisco, 217 F.Supp.2d 992, 997 (N.D. Cal. 2002).

         2. Due Process Liberty

         Brunner first alleges that she was deprived of her right to liberty under the Fourteenth Amendment. (See Dkt. No. 1 at 13.) The Fourteenth Amendment provides that “no State shall deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Brunner asserts that Thor violated this provision by searching for her private information on the Department database and by “compiling dossiers on [Brunner] and her family and friends.” (Dkt. No. 1 at 13; Dkt. No. 77 at 8.)

         However, Thor did not “act[] under color of state law merely because he was a law enforcement officer.” See Van Ort v. Estate of Stanewich, 92 F.3d 831, 838 (9th Cir. 1996). Rather, Thor's actions must have been related in some way to the performance of his official duties. See Id. There is no evidence that Thor researched Brunner's personal information as part of any official duty. Rather, the ...

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