United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE.
matter comes before the court on Defendants City of Pelham
and Larry Palmer's motion to dismiss and/or motion for
partial summary judgment on Counts Three, Four, and Five of
the second amended complaint (doc. 60), and Mr. Palmer's
motion to dismiss Counts Three, Four, and Five of the second
amended complaint (doc. 62).
Jennifer Smith was a city employee working in the Pelham
Police Department. Mr. Palmer, the Chief of Police, ordered a
warrantless search of her work computer. Unbeknownst to Ms.
Smith, her work computer contained backup copies of her
personal cell phone and, based at least in part on
photographs found on those backups, Mr. Palmer suspended and
later terminated Ms. Smith's employment. Ms. Smith filed
suit, asserting various claims against both Mr. Palmer and
the City of Pelham. Of relevance to these motions, she claims
that Defendants (1) subjected her to an unconstitutional
search of her personal cellphone, in violation of the Fourth
Amendment (“Count Three”); (2) deprived her of
due process, in violation of the Fourteenth Amendment
(“Count Four”); and (3) invaded her privacy, in
violation of Alabama law (“Count Five”). (Doc. 59
at - 63). Defendants do not seek dismissal of or summary
judgment on Counts One and Two, so the court will not discuss
Ms. Smith lacked an objectively reasonable expectation of
privacy in the backup copies of her cell phone, the court
GRANTS summary judgment in favor of
Defendants and against Ms. Smith on Count Three. Because
Defendants provided Ms. Smith with all the process she was
due during her appeal of her termination, the court
GRANTS summary judgment in favor of
Defendants and against Ms. Smith on Count Four. And because
Defendants obtained only information that they properly
accessed through Ms. Smith's work computer, the court
GRANTS summary judgment in favor of
Defendants and against Ms. Smith on Count Five.
motion to dismiss constrains the court to consider, with
limited exceptions, only the allegations made in the
complaint, Butler v. Sheriff of Palm Beach Cty., 685
F.3d 1261, 1265 (11th Cir. 2012), but a motion for summary
judgment requires the court to consider evidence submitted by
the parties, see Hamilton v. Southland Christian
Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012).
Setting out the facts in this case is complicated because the
City of Pelham and Mr. Palmer moved both to dismiss and for
summary judgment on Counts Three, Four, and Five. (Doc. 60).
At the same time, Mr. Palmer also filed a separate motion to
dismiss, asserting that he is entitled to qualified immunity
from Counts Three and Four, and state agent immunity from
Count Five. (Doc. 62). Although the court set out two
separate briefing schedules (docs. 64, 65), Ms. Smith
responded to both motions in one filing, adopting and
incorporating by reference evidence that she had submitted to
the court during an earlier round of motions practice. (Doc.
sake of simplicity, and because the court concludes that it
can resolve the claims against both defendants based on the
joint motion for summary judgment, the court will use the
summary judgment standard. Accordingly, the court draws its
description of the facts from the evidence, drawing all
inferences and reviewing all evidence in the light most
favorable to Ms. Smith. See Hamilton, 680 F.3d at
City of Pelham is a governmental municipal corporation in
Shelby County, Alabama. (Doc. 59 at 40 ¶ 207). From
November 2003 until October 2015, Ms. Smith was the Executive
Administrative Assistant to the Chief of Police of the City
of Pelham, a position that made her a permanent employee in
the City of Pelham's classified service. (Id. at
4 ¶ 14, 40 ¶ 209, 51 ¶ 259, 53 ¶ 269).
Mr. Palmer became the Chief of Police in March 2015. (Doc.
13-1 at 2).
City of Pelham has a “Civil Service Law Handbook,
” which sets out “provisions with respect to
appointment, career development, removal, discipline, and
related conditions of employment in the classified
service.” (Doc. 13-7 at 1, 3). The Handbook provides
that the Chief of Police is a Department Head and, as such,
an “appointing authority.” (Id. at 8-9).
Under the policies set out in the Handbook, an appointing
authority may dismiss, demote, or suspend an employee within
the classified service “for cause or for any reason
deemed to be in the best interest of the public
service.” (Id. at 43). Either before or on the
date of the dismissal, the appointing authority must give the
employee written notice of dismissal, including “[t]he
cause of action, ” the effective date of the dismissal,
and “[a]ny other information deemed
appropriate.” (Id. at 44).
permanent employee may appeal a dismissal or suspension to
the Personnel Board (doc. 13-7 at 45), which is tasked with
reviewing, approving, disapproving, or modifying
administrative actions (id. at 15). On receipt of an
appeal, the Board must hold a public hearing to determine
whether the employee should be retained “or should be
removed or otherwise disciplined.” (Id. at
addition to the Handbook, the City of Pelham has a
“Social Networking Policy, ” which sets out
guidelines for public employees' use of social networking
websites (doc. 13-3 at 2-3), and a “Computer/Email
& Internet Use Policy” (the “Computer
Policy”), which governs employees' use of the
City's computer systems (doc. 13-5 at 2-4). The Computer
Policy provides in relevant part:
All software, programs, applications, templates, data and
data files residing on computer systems or storage media or
developed on the city's systems are property of the City
of Pelham . . . . The City of Pelham, therefore, may access,
copy, change, alter, modify, destroy, delete or erase this
(Doc. 13-5 at 2-3).
early as 2007, Ms. Smith and Mr. Palmer clashed. (Doc. 59 at
5-6; Doc. 37-1 at 6-7). Ms. Smith filed complaints against
Mr. Palmer before he became the Chief of Police in March
2015. (Doc. 37-3 at 17-18). For his part, Mr. Palmer attested
that shortly after he became the Chief of Police, he began to
suspect that Ms. Smith was performing work for her secondary
employer while on the clock at the Police Department and that
she was misusing her sick and leave time. (Doc. 13-1 at 2-3).
He also asserts that he received complaints about Ms.
Smith's activity on Facebook. (Id. at 3-4). As a
result, he states, on an undisclosed date, he ordered an
investigation into Ms. Smith's use of social networking
sites and leave time. (Id. at 4).
the same time, Mr. Palmer denied one of Ms. Smith's
requests to use her compensation time. (Doc. 37-1 at 3).
Based on that denial, on September 2, 2015, she filed with
the City of Pelham Human Resources Department a complaint of
sex discrimination against Mr. Palmer. (Id.). Mr.
Palmer received notification of the complaint on the same
days later, on September 10, 2015, Mr. Palmer ordered
Detective Patrick McGill to review Ms. Smith's work
computer. (Doc. 13-1 at 5; Doc. 37-3 at 20). Two dayslater,
Detective McGill imaged her computer and found backup copies
of Ms. Smith's personal cell phone. (Doc. 37-3 at 20-21).
Those backup copies contained nude photographs of Ms. Smith
and other people. (Id. at 21). Detective McGill
testified that the only way the computer could have backed up
Ms. Smith's cell phone was if she had plugged her phone
into her computer. (Id. at 21-22). Ms. Smith later
testified that she had connected her cell phone to her
computer for work purposes, but she had not known that the
computer would make backup copies ...