Opinion
Civil No. 01-356-AS
February 27, 2002
OPINION and ORDER
The matters before the court are defendants' motion (#28) for summary judgment; defendants' motion (#48) to strike portions of plaintiff's declaration; and plaintiff's motion (#37) to strike portions of the affidavit of Judson Randall.
Plaintiff brings this action against defendants seeking a declaratory judgment, injunctive relief, and money damages as to four claims for relief under 42 U.S.C. § 1983: a claim for unlawful detention in violation of his Fourth Amendment rights under the United States Constitution; a claim for unlawful seizure of papers in violation of his Fourth Amendment rights; a claim for unlawful governmental inference with the publication of a newspaper in violation of the First Amendment; and a claim for unlawful removal of handbills announcing a press conference in violation of the First Amendment. Defendants move for summary judgment against all of plaintiff's claims, and also move for summary judgment on plaintiff's claims for declaratory and injunctive relief.
FACTS
Plaintiff is the student editor of the Rearguard, a Portland State University (PSU) campus newspaper. David Bernstine is PSU's President, Rod Diman is a Special Assistant to President Bernstine, and John Fowler is PSU's Director of Public Safety.
Around November 10, 2000, plaintiff came into possession of a box of confidential student disciplinary records. The records included student names, social security numbers, conduct code violations, criminal violations and mental health examination information. As custodian of all student records, PSU is legally required to maintain the confidentiality of the records at issue.
On February 23, 2001, three months after plaintiff came into possession of the records, he notified Bernstine by memorandum that the Rearguard had the box of confidential student records. The memo summarized the contents of some of the records, including the students' names. The memo also informed Bernstine that the Rearguard would be "going forward with a press release on this matter within the next two weeks." Exh. 3 to Def. Memo.
Upon receipt of the memo, Bernstine telephoned Special Assistant Attorney General Melinda Grier seeking advice as to how to proceed. Bernstine, Diman, Fowler and Grier had a telephone conference during which Grier advised Bernstine, Diman and Fowler that it was lawful to retrieve and secure the records, and that PSU could secure the Rearguard office if necessary to secure the records. At the conclusion of the call, Bernstine directed Fowler and Diman to retrieve the records from the Rearguard office.
Fowler and Diman promptly went to the Rearguard office, which was a few blocks away. Upon arrival, they found the door locked and the office empty. Fowler contacted Public Safety Sgt. Mike Soto and instructed him to bring a "clamshell" lock to place over the doorknob of the Rearguard office door (to prevent anyone except the clamshell key holder from entering the Rearguard office). Soto did not have the proper key for the clamshell lock and radioed for another officer to bring the proper key. A third officer then had to be called to request that she bring the master keys from the Public Safety office.
While Soto remained at the Rearguard office, Fowler and Diman approached plaintiff in the student government office and asked him for the records. Initially, plaintiff denied the records were in the Rearguard office. Fowler and Diman explained that the records were confidential PSU property, and that legal counsel had advised them to retrieve the records. Fowler and Diman offered to take plaintiff wherever the records were located in order to retrieve them. Fowler also discussed with plaintiff several possible scenarios, including getting a search warrant and plaintiff's potential criminal liability for possession of stolen property.
Plaintiff returned to the Rearguard office to call his lawyer and faculty advisor. Soto unlocked the office door for plaintiff and remained outside while plaintiff made the phone calls. Plaintiff returned to the student government office about 15 minutes later and went outside to smoke.
Soto also went outside to smoke. Plaintiff spoke with the student government president while outside and about 10 minutes later admitted to Soto that he had the records and said that he would return them. Plaintiff gave the records to Soto and plaintiff had access to the Rearguard office from that point on.
Fowler and Diman then returned to Bernstine's office. Bernstine contacted Grier to inform her the records were secure. Defendants contend the length of time between the conclusion of the initial conference call and the final call notifying Grier the records were secure was approximately one hour and eight minutes; plaintiff contends he was unlawfully detained for two hours.
STANDARD OF LAW
Federal Rule of Civil Procedure 56(c) authorizes the granting of summary judgment where no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also, Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (D.Del. 1991). The moving party has the initial burden of showing the absence of a genuine issue of material fact essential to the nonmovant's case. Celotex at 165. Once the moving party has met this burden, the burden shifts to the nonmovant to establish that there is a genuine issue of material fact. Id. at 324.
An issue is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The evidence is to be viewed in a light most favorable to the nonmoving party, and all justifiable inferences are also to be drawn in the nonmovant's favor. Id. at 255. No genuine issue of material fact exists for trial where the record as a whole could not lead the trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, if after the court has drawn all justifiable inferences in the nonmovant's favor, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50.
MOTIONS TO STRIKE
A. Defendants' Motion to Strike
Defendants move to strike paragraph 10(a) of plaintiff's declaration wherein he states: "Sgt. Soto had to accompany me to my office. I was unaware that he was doing so in order to allow access to my office because of the lockout knob." Defendants argue that in his earlier deposition, plaintiff acknowledged that Soto was there to open the office door:
Q: Did you ever hear any order to Sgt. Soto?
A: Yes.
Q: What order did you hear?
A: Ordered him to open up the door for the Rearguard.
Q: Who ordered him to do that?
A: Mr. Fowler.
Q: And what was the purpose of ordering him to open the door?
A: Because it was locked, padlocked.
Q: Was he opening it to let you in?
A: To call my lawyer.
Desyllas Deposition, p. 67, ll 19-25; p. 68, ll 1-5.
The Ninth Circuit does not allow a party to create an issue of fact by an affidavit that contradicts prior deposition testimony. Kennedy v. Allied Mutual insurance Co., 925 F.2d 262, 267 (9th Cir. 1991). Generally, when considering a motion to strike, the court will not automatically dispose of every case in which a contradictory affidavit is introduced. The court must first make a determination that the contradiction was actually a sham. Kennedy at 266-67. Minor inconsistencies that result from an honest discrepancy, a mistake or newly discovered evidence do not amount to a sham affidavit. Id.
In this case, I conclude that the discrepancy between plaintiff's declaration and deposition testimony rises above the level of a minor inconsistency. Plaintiff's deposition makes it clear he was aware that Soto followed him to the Rearguard office in order to unlock the door, and his subsequent declaration otherwise is in clear contradiction to that testimony. Therefore, defendants' motion to strike paragraph 10(a) of plaintiff's declaration is granted.
B. Plaintiff's Motion to Strike
Plaintiff moves to strike portions of the affidavit of Judson Randall. Each paragraph is discussed separately.
1. Paragraph 6
Plaintiff contends that paragraph 6 of the Randall affidavit must be stricken because it lacks personal knowledge. Paragraph 6 states: "It is my understanding that a box of student disciplinary records from the 1970s and 1980s was left at the Rearguard office in mid-November 2000." Defendants assert that personal knowledge may be inferred because of plaintiff's own testimony about a conversation with Randall, as well as Randall's position as faculty advisor to both the Rearguard and Vanguard. I agree. Plaintiff's motion to strike is denied.
2. Paragraph
Plaintiff contends that the second sentence in paragraph 7 of the Randall affidavit must be stricken because it is a legal conclusion. That sentence states: "I understand that the records left at the Rearguard office were clearly confidential under Oregon law and administrative rule, and as such should have been cloistered by Portland State University officials." Defendants contend that they should be allowed to present Randall's testimony about what his advice would have been. To the extent that paragraph 7 of the Randall affidavit asserts that records were considered confidential as a matter of law, plaintiff's motion to strike this statement as an improper legal conclusion is granted.
3. Paragraph
Plaintiff contends that the second sentence in paragraph 11 of the Randall affidavit must be stricken because it is also a legal conclusion. That sentence states: "The retrieval of records, which the university was compelled by law to do, would not, in my experience and judgment, constitute prior restraint on publication as prohibited by the First Amendment." Defendants argue they should be allowed to present Randall's testimony to rebut plaintiff's statement that Randall believed defendants' actions constituted a First Amendment violation.
To the extent that paragraph 11 of the Randall affidavit asserts that actions taken on February 23rd were not infringements of the First Amendment as a matter of law, plaintiff's motion to strike the assertion as an improper legal conclusion is granted.
4. Paragraph
Plaintiff asserts that paragraph 14 of the Randall affidavit must be stricken in its entirety
because it is both a legal conclusion and lacks personal knowledge. Paragraph 14 states: I understand that university officials placed a rear lock on the Rearguard's door for a period of time between 4:08pm and 5:15pm on Friday, Feb. 23, 2001. It has been represented to me that the lock was removed sometime during that time period. Given those facts, I do not believe that the university or its officials infringed on the
Rearguard's or Desyllas' First Amendment rights by placing a lock on the office door within those time parameters. Nor do I believe that the university or its officials interfered in this instance with the Rearguard's ability to publish a newspaper or a particular story in any of its editions.
The first and second sentences in paragraph 14 are not based on personal knowledge. Further, Randall's statement concerning his opinion as to whether the officials violated the First Amendment is a legal conclusion made by a lay person. Therefore, plaintiff's motion to strike paragraph 14 in its entirety is granted.
5. Paragraph
Plaintiff contends that paragraph 15 of the Randall affidavit must be stricken because it lacks
personal knowledge and is based on speculation. The paragraph states in relevant part: In addition, I would have asked whether his continued possession of the records was necessary to produce relevant news articles on their mishandling. If he had responded "no" to the latter two questions, I would have advised him to return the records to PSU custody.
As plaintiff's faculty advisor, Randall is qualified to testify as to how he would have handled the situation had he conversed with plaintiff on February 23rd. This is does not amount to mere speculation. Therefore, plaintiff's motion to strike paragraph 15 of the Randall affidavit is denied.
6. Paragraph
Plaintiff contends that paragraph 18 must be stricken because it is a legal conclusion. The paragraph states "Given the fact that the Rearguard office was locked for no longer than 67 minutes, I don't believe the Rearguard was denied its First Amendment rights."
I conclude that this statement is a legal conclusion that must be stricken. Therefore, plaintiff's motion to strike paragraph 18 of the Randall affidavit is granted.
7. Paragraph
Plaintiff argues that the last sentence of paragraph 19 must be stricken because it lacks personal knowledge and states a legal conclusion. The last sentence states "I don't believe the events of February 23, 2001, constituted an attempt to control the content of the Rearguard."
I conclude that this statement is a legal conclusion that should be stricken. Therefore, plaintiff's motion to strike the last sentence of paragraph 19 of the Randall affidavit is granted.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants argue as a threshold matter that they are entitled to qualified immunity. A recent Supreme Court case has clarified the sequence of the steps to be taken in the analysis of a qualified immunity claim. Saucier v. Katz, ___ U.S. ___, 121 S.Ct. 2151, 2156 (2001).
First, a court must consider whether the facts as alleged by plaintiff show that defendant's conduct violated a constitutional right. Id. at 1256. If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. Id. On the other hand, if a violation could be made out on a favorable view of plaintiff's submissions, the next sequential step is to ask whether the right was clearly established. Id. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Id. In determining whether a constitutional right is "clearly established," as required for plaintiff to defeat a government official's claim of qualified immunity, the relevant dispositive inquiry is whether it would be clear to a reasonable official that his conduct was unlawful in the situation he confronted. Id. If the law did not put the official on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. Id. at 2156-57.
Therefore, I must first determine whether the facts alleged by plaintiff show that defendants' conduct violated a constitutional right. If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. Of course, this analysis also addresses defendants' motion for summary judgment against all four of plaintiff's claims on the basis that they fail as a matter of law.
A. Unlawful Detention Claim
Defendants move for summary judgment against plaintiff's first claim for unlawful detention in violation of his Fourth Amendment rights. Plaintiff's complaint alleges that he was detained by defendants for two hours on the afternoon of February 23, 2001, without probable cause or reasonable suspicion.
The parties extensively discuss issues such as whether or not under the totality of the circumstances plaintiff was ever restrained or detained; the amount of time that the entire incident encompassed from beginning to end; and whether or not it could reasonably have been assumed that the records had been "stolen" and that plaintiff was somehow involved in the theft. I do not believe that resolution of disputed facts surrounding these issues is necessary to resolve this motion.
It is well established that voluntary encounters with officers deserve no constitutional protection. Florida v. Bostick, 501 U.S. 429, 434 (1991). I will assume for purposes of this motion that plaintiff's interaction with defendants on February 23rd would not be characterized as voluntary.
Rather, this motion can be resolved under the principle that police officers can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion, supported by articulable facts, that criminal activity "may be afoot" or that the person is a suspect in a completed crime, even if they lack probable cause under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 22 (1968); United States v. Hensley, 469 U.S. 221, 227 (1985); Guam v. Ichiyasu, 838 F.2d 353, 355 (9th Cir. 1988). Courts must balance the nature and quality of the intrusion of the person against the importance of the governmental interests alleged to justify the intrusion. Hensley, 496 at 228.
Plaintiff contends that the encounter among himself, Fowler, and Diman was a detention, and that defendants did not have reasonable suspicion to warrant the detention because there was no evidence to believe that plaintiff had stolen the box or knew that it was stolen. Plaintiff asserts that, as he told Bernstine, the box had been left outside the Rearguard office after the files were found outside the catering kitchen of Smith Center.
Whether or not the records had been stolen is irrelevant to an analysis of whether plaintiff has stated a claim for unlawful detention under the Fourth Amendment. I conclude that there is ample undisputed evidence in the record to support a conclusion that defendants had reasonable suspicions that supported their questioning of plaintiff for investigative purposes even if there was insufficient probable cause under the Fourth Amendment.
In this case, the record indicates that defendants approached and questioned plaintiff while investigating the whereabouts of confidential student records belonging to PSU. Indeed, defendants had become aware that confidential student records were out of PSU's custody because plaintiff had advised defendants by memo that he was in possession of such records and that he intended to issue a press release about the records.
PSU had a duty under federal and state privacy laws to safeguard the records and their disclosure could result in a loss of federal funding, in addition to exposing PSU to section 1983 claims by students whose records were unlawfully released. Further, plaintiff's express intention to issue a press release was ambiguous and did not specify the nature of the press release; defendants had no way of knowing and no assurance that the contents of the records would not be disclosed in that press release. For these reasons and others, defendants had been advised by the Attorney General's office to immediately retrieve the records from plaintiff.
Plaintiff acknowledges that the records at issue are the property of PSU. Plaintiff had no authority to possess the records, irrespective of how they came into his possession. Further, plaintiff's possession of the records arguably violated Or. Rev. Stat. § 164.065 relating to theft or loss of mislaid property, and also violated PSU administrative rules regarding unauthorized use or possession of university files and records, and unauthorized entry into a file to read the contents.
Balancing the nature and quality of the intrusion against the importance of the governmental interests that defendants allege justify the intrusion, I conclude that defendants' intrusion was justified. At most, by plaintiff's account, the incident lasted two hours from start to finish and was not characterized by use of force or custodial interrogation. Defendants have articulated interests that justified their investigation into the whereabouts of PSU property that plaintiff had advised them was in his possession. Defendants had a duty to recover the confidential material, and plaintiff was their only known avenue for accomplishing the recovery. Plaintiff's first claim for violation of his Fourth Amendment rights fails as a matter of law, and defendants' motion for summary judgment is granted.
B. Unlawful Seizure Claim
Defendants move for summary judgment against plaintiff's second claim for unlawful seizure of the records in violation of his Fourth Amendment rights. Plaintiff argues in his opposition to defendants' motion that "[i]t follows that if the detention of Mr. Desyllas was in violation of the Fourth Amendment that his providing the box of documents to the administration was involuntary and was an unreasonable seizure of his property, also protected by the Fourth Amendment." Pl. Resp., p. 13. As discussed above, I have concluded that there was no unlawful detention in violation of plaintiff's Fourth Amendment rights.
The record before the court is clear that there was no search of plaintiff or the Rearguard office, and that plaintiff voluntarily returned to PSU records. It is true that defendants made demands of plaintiff that he return the records, but I conclude that those demands were reasonable based on the confidential and sensitive nature of the records and the fact that they belonged to PSU. Further, plaintiff has cited no cases holding that the threat of obtaining a search warrant constitutes an unlawful seizure in violation of the Fourth Amendment. Plaintiff's second claim for unlawful seizure fails as a matter of law, and defendants' motion for summary judgment is granted.
C. First Amendment Claims
Defendants move for summary judgment against plaintiff's third and fourth claims for violations of the First Amendment by governmental interference with the publication of a newspaper, and by removing from public view handbills regarding the press conference.
1. Governmental Inference with Publication,
In his Memorandum in Response to Defendants' Motion for Summary Judgment, plaintiff requests a supplemental briefing schedule to allow additional time to brief the third claim for relief for violations of the First Amendment for governmental interference with publication. I decline to grant this request. Plaintiff never made a timely formal motion to extend the briefing schedule in this matter, and further delay would prejudice the parties and impede the timely resolution of this matter.
Plaintiff asserts that the basis for this claim is that defendants' conduct in locking the Rearguard office door, detaining plaintiff, and taking the records back from plaintiff all interfered with an on-going investigation by plaintiff in preparation for publication in the student newspaper. Thus, defendants violated the First Amendment by interfering with the publication of the newspaper.
I disagree. This case is not about the content or viewpoint-based restrictions on plaintiff's speech that raise First Amendment issues. Plaintiff has admitted that PSU did not regulate or censor content of the student newspaper or enter the office and conduct a search.
The record does not support an argument that defendants's actions violated plaintiff's First Amendment right to investigate the issue of the student records. Plaintiff has cited no cases holding that interference with an "investigation" by a newspaper is a First Amendment violation. Further, defendants' reclaiming of the records themselves did not interfere with plaintiff's ability to investigate and publish an article about how and why the records were "misplaced" by PSU officials.
Therefore, defendants' motion for summary judgment against plaintiff's third claim for relief is granted.
2. Removal of handbills
It is undisputed that PSU has a written policy that permits students to post handbills, posters, banners, or other materials on approved bulletin boards. The policy prohibits posting any item on any unapproved surface, including walls, doors, windows, elevators, floors, or entry-ways. On its face, the policy appears to be a neutral policy that is designed to allow communication and advertisement through approved methods, and plaintiff does not appear to be challenging the policy on its face. Rather, plaintiff argues that defendants' enforcement of the policy violates the First Amendment.
Plaintiff testified that he is aware of and disagrees with the policy regarding posting fliers on approved bulletin boards. He acknowledges that the fliers at issue were posted in violation of PSU policy, but maintains that students should be able to violate the posting policy. He argues that the removal of handbills constitutes a First Amendment violation because PSU Campus Safety Officer Joseph Widner was seen tearing down handbills promoting the press conference. Plaintiff asserts that the Ninth Circuit has held that removal of handbills based upon content on a university campus constitutes such a violation. Giebel v. Sylvester, 244 F.3d 1182 (9th Cir. 2001).
Defendants assert that PSU custodians, campus safety officers, and staff routinely remove unapproved materials from a variety of locations. On any given day, employees may remove hundreds of unapproved fliers. Indeed, Officer Widner testified that it is part of his regular job duties to remove improperly posted fliers and handbills and that he does so on a daily basis. The fact that he was seen carrying out one of his job functions is insufficient evidence that defendants' enforcement of the policy is unconstitutional. Officer Widner admitted that he removed fliers that may have included the Rearguard's press conference fliers that were posted on a glass doorway in violation of policy and blocking the vision of anyone using the doorway.
On the record in this case, there is no constitutional violation. Plaintiff's disagreement with PSU's posting policy does not amount to a First Amendment violation. There is no evidence in the record that PSU's posting policy is content-based. Plaintiff's only evidence in support of his argument that enforcement of the posting policy is content based is testimony that Officer Widner was seen tearing down handbills promoting the press conference. This evidence is insufficient to withstand summary judgment on this issue. Defendants' motion for summary judgment on plaintiff's fourth claim is granted.
D. Eleventh Amendment Immunity
Because plaintiff has clarified that he sues defendants in their individual capacities, the Eleventh Amendment does not bar plaintiff's claims against each defendant.
E. Qualified Immunity
Since I have concluded that the facts alleged by plaintiff in support of his four claims for relief do not show that defendants' conduct violated constitutional rights, there is no necessity for further inquiries concerning qualified immunity. Saucier v. Katz, 121 S.Ct. at 1256.
F. Declaratory and Injunctive Relief
Since I have concluded that defendants are entitled to summary judgment on all four of plaintiff's claims, I need not address the issues of declaratory and injunctive relief.
CONCLUSION
Defendants' motion (#48) to strike paragraph 10(a) of plaintiff's declaration is GRANTED. Plaintiff's motion (#37) to strike portions of the Randall affidavit is GRANTED with regard to the second sentence of paragraph 7; the second sentence of paragraph 11; the entirety of paragraphs 14 and 18; and the last sentence of paragraph 19; and DENIED with regard to all other parts.
Defendants' motion (#28) for summary judgment is GRANTED with regard to plaintiff's first, second, third, and fourth claims for relief. This case is DISMISSED.