*1 Plaintiff, Christina Hibbert, filed a Partial Motion for Summary Judgment (#33) on August 29, 2018. Defendants, Leo P. Schmitz, Joann Johnson, Agnes Kindred-Johnson, Macharia Fortson, and Brian Ley filed their Motion for Summary Judgment (#36) on the same day. In addition to the summary judgment motions, Defendant Brian Ley has filed a Motion to Dismiss (#26). For the following reasons, Plaintiff's motion (#33) is DENIED and Defendants' motion (#36) is GRANTED in part and DENIED in part. Defendant Ley's motion (#26) is MOOT.

BACKGROUND[1]

Overview

Plaintiff, a former employee of the Illinois State Police, filed this suit alleging violations of her Fourth Amendment right to privacy pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendants improperly seized her cellular (cell) phone and that Defendants made improper secret video recordings of her at work as part of an investigation into suspected workplace misconduct.

Background Facts

Plaintiff

Plaintiff was employed by the Illinois State Police (ISP) from September 21, 2001, through July 9, 2014. Plaintiff was not a sworn law enforcement officer, but rather worked in an administrative capacity with ISP. From 2009 through her eventual termination from employment in 2014, Plaintiff worked at the ISP headquarters building in Springfield, Illinois. In 2013, Plaintiff was assigned to work at ISP's Governmental Affairs Bureau. However, around August or September 2013, most of the work Plaintiff was performing was for ISP's Firearms Services Bureau (FSB), which was located on the fourth floor of ISP headquarters in Springfield, Illinois. Plaintiff's duties included clearing background checks for conceal carry instructor permits and interviewing new employees.

ISP Headquarters

Although the building is referred to as “ISP headquarters,” it also housed other state agencies, such as the Illinois Gaming Board, Illinois Department of Central Management Services (CMS), and the Illinois National Guard. The building has restricted access and is not open to members of the general public. Access to the building is controlled by electronic access cards or “swipe cards.” When first entering the building, there is a lobby and security desk. To go beyond the lobby, a person either is escorted or employees use their swipe cards to open the doors to access the rest of the building. Swipe cards allow employees to access only certain areas or floors of the building based on the agency for which they work and the specific floors to which they need access. A swipe card must be used to exit the stairwell for most floors and must be used in the elevator. Although the majority of ISP headquarters is controlled by swipe cards, access to the fifth floor is not restricted once given access to the building and no swipe card is required at the elevators in order to access that floor. In other words, anyone who enters through the lobby doors (which are electronically controlled) can access the fifth floor.

*2 The fifth floor contains the following rooms: ISP electrician Mike Eck's office; security offices; conference rooms A, B, and C; an area for a cafeteria used by people to eat lunch; open seating; and a path people use to exercise indoors. CMS built the fifth floor conference rooms and controls the scheduling of those rooms. Conference rooms B and C are used for meetings, and conference room A is used for videoconferencing. Most of the time these conference rooms are empty. There are locks on the doors of all three of the fifth floor conference rooms and a number of people have keys to those locks, including maintenance staff, all CMS Benefits employees, CMS engineers, and others.

Events Leading to the Initial Covert Camera Installation

Jessica Trame was the Bureau Chief of FSB and Anthony McClure was Assistant FSB Bureau Chief. On August 16, 2013, after hearing a rumor that McClure and Plaintiff were having an affair at work, Trame separately asked McClure and Plaintiff if they were having an affair in ISP headquarters. Both denied that they were having an affair at the workplace. Plaintiff then asked if Trame had heard any information about where the affair was occurring, and Trame said that the conference room was mentioned.

Defendant Brian Ley was the ISP's First Deputy Director, which is the second in command of the ISP, and Ley reported directly to the ISP Director. Defendant Ley had significant contact with Trame as a result of setting up the Conceal Carry Unit within the FSB, and at some point during meetings with Trame, learned that Plaintiff and McClure appeared to have a close relationship and that they were often seen throughout the building together. Ley, however, was not bothered by the relationship at the time because “we all have friends through the building[.]”

On October 30, 2013, while he was attending a retirement celebration on the fifth floor of the ISP headquarters building, Ley saw McClure walking quickly towards a conference room on the fifth floor. Ley saw McClure enter the room, and then, within a minute, saw Plaintiff, also walking quickly, enter that same room. Ley then had a conversation with ISP Chief of Staff Eric Murphy about what he saw. Ley wondered where McClure and Plaintiff were going since the fifth floor was not the FSB floor where they worked. In response, Murphy said they could find out where the pair was going by talking to ISP electrician Mike Eck. Eck is an electrician employed by the ISP whose main job duties include ensuring that the video security (which includes overt cameras installed throughout the common areas of the building) and card access systems for central headquarters are working. Murphy told Ley that he spoke to Eck, and that Eck said that McClure and Plaintiff most likely went to one of the conference rooms on the fifth floor because they often frequented those rooms. After hearing this, Ley and Murphy both went to speak with Eck.

Ley told Eck he had concerns about McClure and Plaintiff's movements and asked if Eck was aware of any activity. Eck responded by chuckling and stating that everybody in the building knows what is going on between the pair and that they most likely went into the conference room. The conference rooms on the fifth floor actually belonged to CMS, not ISP, and were used for meetings. Ley then asked Eck how he knew McClure and Plaintiff were in the conference room, and Eck stated that he knows where people go because he monitors the building, and Plaintiff and McClure went in the conference room “a lot.” Ley asked if McClure and Plaintiff went in to any other areas, and Eck said they went to the mothering room (where women could nurse babies or use a breast pump), and a data room on the second floor. Eck explained to Ley that the pair were in the conference room multiple times a day from between five minutes to over thirty minutes, and that one time Eck discovered that they had locked the door. Ley asked Eck if they were having lunch in the conference room, but Eck said no, they usually left the building together for lunch. Prior to seeing Plaintiff and McClure walk toward the conference room on October 30, Ley had never heard any rumor, innuendo, or direct statement suggesting that the pair were having sex inside ISP headquarters.

Ley Decides to Install a Covert Camera

*3 Based on this information, Ley decided that a camera needed to be installed in one of the conference rooms. At this point, there was no official ISP investigation ongoing, and Ley did not believe one was warranted. Ley wanted the camera installed because Eck confirmed that McClure and Plaintiff were spending a lot of time away from their office not doing their jobs and because there could be sexual harassment going on (McClure was Acting Lieutenant in a supervisory role over Plaintiff). Ley was concerned “something deviant was going on that should not be going on.” Eck testified that Ley wanted to get a camera in the conference room because “they just wanted to know what was going on,” because the “oddity” of the pair disappearing into the room created a suspicion as to what might be happening in there. Ley acknowledged that he had no idea what was going on with the pair behind locked doors. Eck stated that he could install a wireless camera the next morning.

Ley did not want a camera installed in the mothering room because of his clear understanding, after five years of experience in Technical Investigations, of the reasonable expectation of privacy of working mothers. Further, the wireless camera could not be installed in the second floor data room because it would not be able to transmit the video from the second to the fifth floor without hard wiring, which was not an option. Thus, the only viable option for a camera was one of the fifth floor conference rooms. Eck asked Ley if there were any privacy concerns about installing the covert cameras. Ley said there were not.

One of Eck's duties was monitoring overt video cameras that captured video in certain locations around the building. While there were overt video cameras in different locations throughout the building, most work areas did not have video cameras. Prior to his installing the covert camera at the direction of Ley, Eck had no personal knowledge of any covert cameras in the ISP building.

On November 1, 2013, Eck installed a covert camera in conference room B. The camera was a small, wireless, battery-operated camera that recorded in black and white in conference room B of the fifth floor. The camera was motion activated. The camera did not record sound. Eck viewed all of the video footage captured by the camera which showed McClure and Plaintiff in conference room B. To do this, Eck used either access logs or hall camera videos to determine when they were in room B and then watched the video footage captured by the camera for that time period. The footage was being recorded on an old DVR, which no longer works. Eck testified that the information contained on that DVR is “gone,” along with the DVR itself. The quality of video captured by the camera was not good, but it did show McClure and Plaintiff in close proximity and in contact with each other, hugging and kissing (but nothing else). None of the footage showed the pair in a state or undress or engaging in sexual intercourse. At that time, it was determined that better cameras needed to be installed.

An Internal Investigation Begins

On or about November 10 or 14, 2013, an ISP employee, Deana Willner, filed a Complaint Against Department Member Form (CADMF) against McClure, alleging, in part, that he was engaging in sexual activities with Plaintiff on state property while receiving pay. It should be noted that while the CADMF indicates Willner made the complaint on November 8, 2013, she did not actually sign the complaint form until December 10, 2013.

As a result of the CADMF, ISP's Division of Internal Investigations (DII) began investigating Anthony McClure. DII investigations are commenced when the DII receives a CADMF. DII is responsible for investigating allegations of wrongdoing by employees who are employed at ISP or other state agencies. Defendant Agnes Kindred-Johnson was the Deputy Director of the DII from December 2011 until she retired on December 31, 2013. Her office was located in the ISP headquarters building. Kindred-Johnson reported directly to Ley in his role as Deputy Director of the ISP. After directing Eck to install the camera, Ley notified Kindred-Johnson of what he had done. Kindred-Johnson assigned Defendant Macharia Fortson to be the DII case agent in the investigation of McClure because he was not friends with McClure. Fortson was a sworn law enforcement officer for the ISP who worked as a sergeant assigned to DII in late 2013. Fortson was from Chicago but had recently transferred to Springfield. McClure had previously worked in DII for eight years, he had supervised many DII employees, and had a lot of friends in DII.

*4 When he was assigned to the investigation, Fortson and Kindred-Johnson discussed the allegations in the case, including the possibility that McClure, who was a master sergeant at the time, was engaged in a hostile work environment, was having sex inside of ISP headquarters during work hours, was abusive to employees, and was stealing time. Fortson suggested installing covert cameras, but he was not involved in the final decision to install them.[2] Fortson told Kindred-Johnson that covert cameras should be installed because there was no other way to prove what McClure and Plaintiff were doing unless it was caught on camera because the pair could say that anything was happening in those rooms.

Kindred-Johnson called ISP staff attorney John Hosteny to discuss the allegations in the CADMF, that Brian Ley had already installed a camera, and whether video from the camera installed by Ley could be used in the DII's investigation. They also discussed what the conference rooms were used for, areas of the building in which Plaintiff was alleged to be having sex, such as the mothering room and the conference rooms, and whether cameras would be appropriate to install in those locations. Hosteny, a licensed attorney for 38 years, was employed by the ISP from May 2006 to April 2018. During his employment with ISP, from 2007 to 2011, he served as Acting Chief Legal Counsel of ISP. When he was not the acting chief, he served as regular legal counsel. Beginning in 2014, Hosteny's duties at ISP included being ISP's liaison to DII. He also handled Merit Board cases for ISP and was the liaison to the Attorney General's Office on Merit Board cases.

In regard to the conference rooms, Hosteny and Kindred-Johnson discussed that they were open conference rooms used for business purposes on the fifth floor, so there was no expectation of privacy in those rooms. Kindred-Johnson had no knowledge that people would use the conference rooms for non-business reasons, such as taking a break or reading a book. Rather, people would sit at tables in an open area outside of the conference rooms to read books or engage in other activities. Hosteny and Kindred-Johnson had further discussions regarding an expectation of privacy, including the mother's room, which was designed for mothers to breastfeed or to pump milk, and the locker room in the basement which was used to change clothes to work out. Hosteny and Kindred-Johnson discussed the fact that cameras could not be installed in either the mother's room or the locker room because of the activities for which those rooms were designed.

Fortson testified that at some point after November 10, 2013, he spoke with Kindred-Johnson and told her that the DII needed an investigatory plan for the McClure-Plaintiff investigation. Fortson brought up the possibility of using covert cameras in order to substantiate the allegations against the pair. Fortson testified that Kindred-Johnson was initially reluctant, and asked Fortson if the installation of such cameras would be entrapment. Fortson told her no, because there was no expectation of privacy, and from that point forward, Kindred-Johnson agreed.

Installation of the Second Set of Cameras

The camera installed by Ley was not reliable, so Kindred-Johnson contacted Tech Services to install cameras that were not battery operated. Fortson was not involved with coordinating the technical people to get the covert cameras installed. According to Ley, the decision to install the better quality cameras was made by Kindred-Johnson.[3] Fortson, however, testified that it was his decision to install the cameras and that he made the decision knowing about the first camera installed by Ley. The purpose of installing the cameras was to determine what, if anything, was happening in the conference rooms because Plaintiff and McClure were going into the conference rooms for long periods of time and locking the doors. Fortson testified that one of the reasons the cameras were installed was to determine if any criminal activity was occurring. The idea of attempting to enter the room when McClure and Plaintiff were there, as opposed to installing video cameras, never occurred to Fortson.

*5 As part of DII's investigation, and at Fortson's direction, Eck installed three covert cameras on November 24, 2013, inside conference rooms B and C on the fifth floor and outside the mothering room on the third floor. The covert cameras installed as part of DII's investigation were of decent quality, but did not record sound. Conference rooms B and C were selected for the covert cameras based on the pattern shown by the overt cameras of Plaintiff and McClure going into both of those rooms at various times. The cameras installed during the DII investigation were motion-activated. However, it was discovered that McClure and Plaintiff would go to a corner of the conference rooms and there was not enough motion for the camera to continue recording, so those cameras were changed to record continuously. Although the cameras were continuously recording, the only footage that was reviewed and purposefully saved were times that the hallway video revealed both McClure and Plaintiff entering the conference room. In other words, video showing anyone else entering the conference room was not reviewed.

Eck extracted video showing McClure and Plaintiff in the conference room and saved that video to CDs, but the other video captured by the camera would have remained on the DVR until it was automatically overwritten as space was needed.

According to a log kept by Fortson, there were several instances recorded of McClure and Plaintiff hugging and kissing in the conference room, and three instances of sexual activity: December 6, 2013 (digital penetration), December 7, 2013 (sexual intercourse), and December 9, 2013 (sexual intercourse). Specifically, on December 7, 2013, Plaintiff was in conference room B with McClure and she removed her clothing in order to engage in sexual intercourse. This activity was captured by the covert camera. The pair were captured on video in conference rooms B and C more than thirty different times hugging, kissing, fondling each other, and engaging in sexual intercourse. Although the video captured in the conference rooms was of “decent” quality, it certainly was not high quality. The hallway video is in color, whereas the conference room video appears to be black and white. People could be identified based on the hallway video (including McClure and Plaintiff), but faces and features could not be seen in the conference room videos. For example, on December 7, 2013, when the pair were removing clothing to engage in sexual intercourse, the video does reveal that clothing is being removed, but mostly from context. The covert cameras were removed on or about December 20, 2013, because they were no longer deemed necessary for the DII investigation.

On December 10, 2013, Fortson interviewed Deanna Willner, who had filed the CADMF back on November 10 or 14, 2013. During the course of the interview with Willner, she advised Fortson that she had heard rumors of an affair between McClure and Plaintiff, but indicated that a coworker, Beth Vandenbergh, had knowledge of the two having sex at ISP headquarters. Fortson interviewed Vandenbergh the next day, during which time Vandenbergh confirmed that Plaintiff and McClure had sex in the building.

Use of Conference Rooms

Although Plaintiff claimed she used the fifth floor conference rooms to change into workout clothes several times, during the month that the covert cameras were installed, none of the video captured Plaintiff changing clothes to workout. Although only video of Plaintiff and McClure was purposefully retained, additional video captured by the cameras does still exist. None of the video captured that currently exists showed anyone using the conference rooms to change clothes. In fact, although Plaintiff claimed she would change clothes in the conference rooms to workout and to bartend after ISP hours, she admitted that she changed clothes to workout only in the warmer months and was no longer working as a bartender as of 2012. Plaintiff also used the conference rooms to make personal phone calls because she believed they afforded more of a sense of privacy. Plaintiff testified that she could close and lock the doors to those rooms to ensure that she had privacy.

*6 Plaintiff testified that she saw other employees use the fifth floor conference rooms for phone calls, meetings with other employees, to eat lunch, to read books, and to view materials on personal tablets. Most of the time there was no one using the conference rooms.

Mike Eck testified that he had seen people walking around in the conference rooms using their cell phones, and that ISP employees used the fifth floor for their exercise breaks.

Plaintiff testified that she does not think that any other people, besides herself, changed clothes in the conference rooms. She never witnessed anyone go into the conference room in one set of clothing and come out in different clothing. There is no evidence indicating that Defendants Ley, Kindred-Johnson, or Fortson had any knowledge of any employees using the fifth floor conference rooms to change clothes. The ISP never notified employees that they were subject to covert video surveillance at the building.

Investigation Completion and Merit Board Hearing

DII completed its investigation on March 6, 2014. The DVDs containing videos from the covert cameras were maintained with the DII file under lock and key. On May 6, 2014, the Director of the ISP filed a complaint with the Merit Board alleging McClure committed numerous violations of ISP directives, including official misconduct, theft, failure to truthfully answer questions in an administrative interview, falsifying official department records, and several other charges. All of the video evidence contained within the log submitted to the court as Exhibit 13 was submitted to the Merit Board during the course of the discharge proceeding against McClure.

Although Plaintiff claimed that Kindred-Johnson herself disseminated the videos captured by the covert cameras, she does not have such evidence. Indeed, Plaintiff stated later in her deposition that someone disseminated the videos to Kindred-Johnson, who then distributed them to Fortson and DII agent Casey Faro, who was assigned to the investigation. Plaintiff's claim is based solely on Kindred-Johnson's role as Deputy Director of the DII and the fact that she was the supervisor of the individuals assigned to the DII investigation. Plaintiff claims the videos were also distributed to Deb Simental when she became Deputy Director of DII. Additionally, she claims the videos were distributed to Mike Eck, who was responsible for downloading the videos. Finally, she alleges the videos were distributed to Joann Johnson, a lieutenant colonel for DII.

Plaintiff believed that her sexual liaisons with McClure were conducted purely in private. She testified that they usually occurred at times when people were not typically in the building, members of the public did not have access to the building, the conference rooms were high up and the windows were closed, and she and McClure always locked the doors. However, at the Merit Board proceeding, Plaintiff testified that there were almost always other people in the building when the trysts occurred.

Subpoenas for Plaintiff's Cell Phone

On May 16, 2014, subpoena requests were submitted to the Merit Board from Assistant Attorney General Emma Steimel, who represented ISP in the Merit Board proceeding against McClure. Specifically, Steimel requested that three subpoenas be issued by the Merit Board: (1) to AT&T for McClure's and Plaintiff's phone records; (2) to McClure for his personal cell phone; and (3) to Plaintiff for her personal cell phone. A copy of the subpoena request for McClure's cell phone was sent to McClure's attorney, Cass Casper, when it was submitted to the Merit Board. ISP legal counsel was not involved in having the subpoenas prepared, but the Attorney General's Office was advised that the Merit Board rules require the other attorney to be notified when requesting subpoenas to be issued from the Merit Board. The Merit Board rules did not require that Plaintiff receive a copy of the subpoena for her cell phone or phone records. The Merit Board does have the power to “secure by its subpoena both the attendance and testimony of the witnesses and the production of books and papers in support of the charges and for the defense” pursuant to 20 Ill. Comp. Stat. 2610/14.

*7 The Illinois Administrative Code, concerning the issuance of subpoenas by the Merit Board, states:

80 Ill. Admin. Code 150.650.

The subpoenas requested by the Attorney General's Office were signed by the Merit Board chairman. The Merit Board does not have blank subpoenas that are already signed that can immediately be issued by an attorney. Rather, one must send a letter requesting issuance of a subpoena to the Merit Board's executive director, the Board then issues the subpoena, and one must go to the Merit Board to pick them up. There was no discussion among the ISP or DII employees about the subpoenas prior to them being issued. The subpoenas for McClure's and Plaintiff's phones were given to ISP staff attorney John Hosteny after they were issued by the Merit Board on May 19, 2014. Defendant Joann Johnson, a DII lieutenant colonel, was not involved in the preparation of the subpoenas.

On May 20, 2014, Hosteny discussed service of the subpoenas for McClure's and Plaintiff's phones with Deb Simental (deputy director of DII after Kindred-Johnson retired), Jeff Jacobs (Southern Commander of DII), and Defendant Joann Johnson. Hosteny told Simental, Jacobs, and Johnson that he had subpoenas that had been issued by the Merit Board for Plaintiff's and McClure's cell phones and asked for assistance serving them. They discussed the best way to serve the subpoenas, and it was decided that McClure and Plaintiff would be served at the same time in the afternoon. Hosteny asked DII for assistance serving the subpoenas because DII had served Merit Board subpoenas for ISP's legal office in the past, so that was where he went for help. They wanted to serve the subpoenas at roughly the same time to prevent McClure and Plaintiff from discussing the subpoenas because there was a concern that one of them would make their phone unavailable. This concern was specifically discussed with Hosteny. Hosteny told Simental, Jacobs, and Johnson what he anticipated happening and that if either refused to turn over their cell phones when served with the subpoenas, that they were not to order them to turn them over. Hosteny explained that they were only serving the subpoenas, and if Plaintiff and McClure refused to turn their phones over, they were only to return to their offices and write a memo. Hosteny's advice was based on the fact that they were acting to serve a Merit Board subpoena, not as an employer, and that was why they should not order Plaintiff and McClure to turn over their phones.

*8 Johnson understood that a subpoena is an order to provide something that has been approved by an authority higher than the policy officer or whomever is wishing to obtain the information. Based on the language on the face of the subpoena in this case (requiring the cell phone to be turned over immediately), Johnson believed that a subpoena could compel somebody to present something immediately.

Johnson was responsible for serving Plaintiff's subpoena and Hosteny went with her. Johnson was wearing business attire when she served the subpoena, and did not have her badge displayed and was not carrying her service weapon. Johnson did not know why DII was being asked to assist with serving the subpoena, but believed perhaps it was because DII handles personnel investigations and had just handled this investigation. Johnson walked to the front of Plaintiff's desk on the tenth floor of the ISP headquarters building, presented her with the subpoena, and said “here is a subpoena for your [personal] cell phone ... I need you to please give me your phone.” After being presented with the subpoena, Plaintiff asked if she had to turn over her phone, and Johnson responded “according to the subpoena, yes.” Plaintiff claims that, at some point, she asked Johnson if she could contact her attorney, at which time Johnson turned to look at Hosteny. Hosteny then said that Plaintiff was required to turn over her cell phone immediately per the subpoena. Plaintiff then gave her phone to Johnson.

Johnson contends that she did not order Plaintiff to turn over her cell phone, rather she served Plaintiff with what Plaintiff understood was a court document. Plaintiff's understanding was that she had no choice, but if Johnson did not have the subpoena and had ordered Plaintiff to turn over her phone, Plaintiff would not have turned it over. When she was served with the subpoena, no one told Plaintiff she could be subjected to discipline if she did not turn over her phone and she did not have any evidence that she could be disciplined. However, Plaintiff did testify that she believed she could be arrested if she failed to comply with what she was being directed to do because it was a legal document being served on her by a police officer who, in response to Plaintiff's question about whether she had to comply, had said “yes.” Johnson then asked Plaintiff to write down the passcode for the phone, which Plaintiff did. Plaintiff asked when she would be able to get her phone back, and Johnson said they hoped to be able to get it back to her before the close of the business day. After she gave her phone to Johnson, Plaintiff called her attorney, John Baker, and told him that her phone had been taken.

Johnson and Hosteny then took Plaintiff's phone to Jeff Knauer, the Acting Director of ISP's Digital Crimes Unit. Knauer completed an ISP form to transfer evidence from Johnson to Knauer, and shortly thereafter Knauer performed an extraction on the phone. Hosteny gave Knauer instructions regarding what should be extracted from the phone. Specifically, Hosteny told Knauer to extract text messages. Knauer performed an advanced logical extraction on Plaintiff's phone and was able to retrieve the following data: pictures, images, voicemails, contacts, and some Facebook messenger chats. Knauer did not extract text messages or emails. Knauer did try to extract text messages from Plaintiff's phone, but was unable to because the phone had an iTunes backup encryption. As a result, a second passcode was needed to access the iTunes backup. Knauer had the information extracted from Plaintiff's phone on an external hard drive and has continued to maintain this copy because he was advised to keep copies of everything.

*9 Knauer also extracted information from McClure's phone. DII Southern Commander Jeff Jacobs was responsible for serving McClure's subpoena. At that time, McClure was assigned to District 8, so Jacobs had to drive to McClure's location in order to serve him.

Knauer also turned over the information extracted from both phones to Fortson. Fortson reviewed the information obtained from McClure's and Plaintiff's phones. Fortson testified that the only information he “reviewed” was text messages, which must have been from McClure's phone (as text messages could not be extracted from Plaintiff's phone). However, he also testified that he “reviewed the records and information obtained from the phones[.]” Fortson was looking for anything pertinent to the investigation into McClure. Fortson did not write a report about the text messages he reviewed because he did not find anything pertinent to the investigation. The material downloaded from McClure's and Plaintiff's phones was not made a part of the DII file because the DII investigation was concluded unless new evidence was discovered. The data which was downloaded from Plaintiff's phone was turned over to Plaintiff's counsel. The ISP did not retain a copy of the data.[4]

In May 2014, Plaintiff learned from her husband that the ISP had video of her engaging in sexual acts in the conference room.

On July 9, 2014, Plaintiff was terminated from her employment with ISP for requesting and receiving overtime for periods of time where she engaged in non-work-related inappropriate conduct of an intimate physical or sexual nature with another employee, Anthony McClure, in the workplace. Plaintiff was also terminated for refusing to cooperate in an official work-related investigation and for knowingly submitting false or misleading information during an investigatory interview, as well as for failing to following lawful ISP policy and for substantially misrepresenting facts to a supervisor.

Procedural History

Plaintiff filed her First Amended Complaint (#22) (FAC) against Defendants on April 15, 2018. Count I of the FAC alleges that Defendants Johnson and Leo P. Schmitz (Director of the ISP, named in the suit only in his official capacity and for purposes of effectuating equitable relief) violated Plaintiff's Fourth Amendment right to privacy when her cell phone was seized by Johnson without lawful authority. Count II alleges that Defendants Kindred-Johnson, Fortson, and Schmitz violated Plaintiff's Fourth Amendment right to privacy when they installed the covert cameras in conference room B on November 24, 2013. Count III alleges that Defendants Ley and Schmitz violated Plaintiff's Fourth Amendment right to privacy when Ley installed the covert camera in conference room B on November 1, 2013. Plaintiff seeks monetary damages against Defendants as well as equitable relief in the form of directing the ISP to return all copies of any information obtained from Plaintiff's phone and the destruction of any and all copies of the video recordings of Plaintiff described in the FAC along with a statement affirming that this has been done.

*10 Defendant Ley filed a Motion to Dismiss (#26) on May 24, 2018, arguing that he has qualified immunity, which bars Plaintiff's claim against him. That motion remains pending. Plaintiff filed a Partial Motion for Summary Judgment (#33) on August 29, 2018, arguing that summary judgment should be granted in her favor on Counts II and III because there is no genuine issue of material fact that Defendants Ley, Kindred-Johnson, and Fortson violated her Fourth Amendment privacy rights by installing the covert video cameras. Plaintiff further contends that there is a genuine issue of material fact with regards to Count I, and that a trial should be held on the matter. Defendants filed a Motion for Summary Judgment (#36) on the same day, arguing primarily that Defendants are shielded by qualified immunity on Plaintiff's claims. Defendants also argue that Defendant Johnson is protected by absolute quasi-judicial immunity on Count I. Defendants further argue that no injunctive relief is available on Count I because the ISP no longer possesses any data from Plaintiff's phone, and thus the court cannot grant any injunctive relief on that count.

ANALYSIS

The court will first consider the parties' cross motions for summary judgment.

Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary judgment, a district court “has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). However, a court's favor toward the nonmoving party does not extend to drawing inferences which are only supported by speculation or conjecture. See Singer, 593 F.3d at 533. In addition, this court “need not accept as true a plaintiff's characterization of the facts or a plaintiff's legal conclusion.” Nuzzi v. St. George Cmty. Consol. Sch. Dist. No. 258, 688 F. Supp. 2d 815, 835 (C.D. 2010) (emphasis in original).

The party opposing summary judgment may not rely on the allegations contained in the pleadings. Waldridge, 24 F.3d at 920. “[I]nstead, the nonmovant must present definite, competent evidence in rebuttal.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). Summary judgment “is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004), quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Specifically, to survive summary judgment, the nonmoving party “must make a sufficient showing of evidence for each essential element of its case on which it bears the burden at trial.” Kampmier v. Emeritus Corp., 472 F.3d 930, 936 (7th Cir. 2007), citing Celotex Corp., 477 U.S. at 322-23. When cross motions for summary judgment have been filed, this court must review the record construing all inferences in favor of the party against whom the motion under consideration is made. See BASF AG v. Great Am. Assur. Co., 522 F.3d 813, 818 (7th Cir. 2008).

I. WHETHER THE SEIZURE OF PLAINTIFF'S CELL PHONE VIOLATED THE FOURTH AMENDMENT

Absolute Immunity

Defendants first argue that Plaintiff's Fourth Amendment seizure claim related to her cell phone is barred because Defendant Johnson has absolute judicial immunity. Defendants contend that Johnson was performing a ministerial task (serving a subpoena) on behalf of a quasi-judicial body (the ISP Merit Board). Defendants claim that the function Johnson served in serving the subpoena was more administrative in character, and was undertaken pursuant to the explicit direction of a judicial officer. Plaintiff responds that the issue is not whether the Merit Board had the authority to issue the subpoena, rather “the problem is that [Johnson] converted a subpoena into a warrant and demanded that the production be made immediately, even when [Plaintiff] protested and asked to speak with her attorney.”

*11 “Absolute immunity is a powerful shield attaching primarily to judicial functions—not to the person or position.” Brunson v. Murray, 843 F.3d 698, 710 (7th Cir. 2016), citing Cleavinger v. Saxner, 474 U.S. 193, 201 (1985), citing Butz v. Economou, 438 U.S. 478, 511 (1978). When a functional analysis of the responsibilities at issue reveals that they are judicial in nature, the actor is entitled to absolute immunity from damages no matter how erroneous the act or injurious the consequences. Brunson, 843 F.3d at 710. However, if the functions are not judicial in nature, then absolute immunity is not available, although the official is left with the still-important protection of qualified immunity, which defeats individual liability unless his or her actions were contrary to clearly established law. Brunson, 843 F.3d at 710.

The Seventh Circuit has applied absolute immunity under federal law only when the official's duties are functionally comparable to those of a judicial officer, and has rejected absolute immunity where an official's actions do not involve acts that are analogous to those performed by judges. Brunson, 843 F.3d at 712. For example, absolute immunity has been provided for election board officers when they rule on the validity of petitions (Tobin for Governor v. Illinois State Board of Elections, 268 F.3d 517, 521 (7th Cir. 2001)), for members of the county board of review for property tax appeals when they engage in quasi-judicial functions which require a notice and a hearing (Heyde v. Pittenger, 633 F.3d 512, 518 (7th Cir. 2011); Capra v. Cook County Board of Review, 733 F.3d 705, 709-10 (7th Cir. 2013)), and for parole board members when they grant, deny, or revoke parole (Walrath v. United States, 35 F.3d 277, 281 (7th Cir. 1994)).

In contrast, the Seventh Circuit has denied absolute immunity for parole officers' actions in the day-to-day duties of their job (Dawson v. Newman, 419 F.3d 656, 662 (7th Cir. 2005)), for clerks of court whose duty to maintain the official record was purely ministerial and involved none of the discretion at the heart of absolute judicial immunity (Snyder v. Nolen, 380 F.3d 279, 288-89 (7th Cir. 2004)), for sheriffs and deputies whose misconduct involved the manner in which they enforced the judge's order, which was an executive, not judicial function (Richman v. Sheahan, 270 F.3d 430, 438 (7th Cir. 2001)), and for extrajudicial, pretrial investigations by government attorneys not intimately associated with court-related duties (Auriemma v. Montgomery, 860 F.2d 273, 278-79 (7th Cir. 1988).

For the purposes of our analysis in this case, both parties do not appear to dispute the idea that the Merit Review Board is a quasi-judicial body. Further, Plaintiff does not dispute the general principle that the Merit Review Board has the right to issue subpoenas. Indeed, the Illinois Administrative Code explicitly allows this. At issue is whether Defendant Johnson, in her actions in serving the subpoena, was performing a quasi-judicial function, and thus would be covered by absolute immunity. The Seventh Circuit has held that when “auxiliary judicial personnel” perform judicial or quasi-judicial functions, such as the issuance of arrest warrants, they perform a function integral to the judicial process, and thus receive the same protection as full-fledged judicial officers. Kincaid v. Veil, 969 F.2d 594, 601 (7th Cir. 1992). “Likewise, when functions that are more administrative in character have been undertaken pursuant to the explicit direction of a judicial officer, [the Seventh Circuit] has held that that officer's immunity is also available to the subordinate.” Kincaid, 969 F.2d at 601. However, the Seventh Circuit has cautioned that its quasi-judicial immunity policies have less force when the challenged conduct is the manner in which the judicial order is carried out, and not conduct specifically directed by a judge. Richman, 270 F.3d at 437.

*12 In Richman, the victim accompanied his mother for her court appearance on a traffic ticket. The judge, over the objection of the victim's mother, continued the case. The victim attempted to ask a question, the judge quieted him, and when the victim continued to speak the judge ordered him restrained. Two sheriff's deputies began to take the victim into custody, and twelve more deputies entered the room. The victim was taken to the floor, handcuffed, and sat on by deputies. The victim was physically disabled and required the use of a cane. He did not resist the deputies' attempt to restrain him. While handcuffed and on the floor, he emptied his bowels and stopped breathing. He was pronounced dead at the hospital. The victim's estate sued the deputies. The district court denied the deputies' attempt to dismiss the case on the grounds of absolute immunity.

On appeal to the Seventh Circuit, the deputies argued that they had quasi-judicial immunity because they were required to execute a judicial order. The court of appeals disagreed. The court noted that “[o]ur quasi-judicial immunity cases demonstrate that the primary function to be protected is judicial or quasi-judicial decision making.” Richman, 270 F.3d at 436. The extension of absolute immunity is not primarily to protect the enforcement function performed by the deputies, but rather to protect the judicial decision-making function by discouraging collateral attacks and encouraging appeals, and it further avoids the “untenable result” of requiring sheriffs and other court officers who enforce properly entered judgments pursuant to facially valid court orders to act as appellate courts, reviewing the validity of both the enforcement orders and the underlying judgments before proceeding to collect on them. Richman, 270 F.3d at 437.

The court noted that “for court personnel and adjuncts who do not exercise a discretionary function comparable to a judge's, the justification for extending absolute immunity is most compelling when the lawsuit challenges conduct specifically directed by the judge, and not simply the manner in which the judge's directive was carried out.” Richman, 270 F.3d at 437. The court concluded that the victim's estate's claim was not that the judge ordered the deputies to use unreasonable force, but that the deputies exceeded the judge's order by the manner in which they executed it, and thus the “claim for damages in this case is not therefore a collateral attack on the judge's order (an order that [plaintiff] concedes was valid), and an appeal of the judge's order would provide no remedy.” Richman, 270 F.3d at 437-38. The deputies were not being called upon to answer for wrongdoing directed by the judge, but instead for their own conduct and it was that conduct - the manner in which they enforced the judge's order - that implicated an executive, not a judicial function. Richman, 270 F.3d at 438.

The court finds instructive an order entered by the previous judge assigned to this case on an earlier motion to dismiss.[5] In that motion, Defendants, as they do here, claimed absolute immunity for Defendant Johnson's actions in regards to the seizure of Plaintiff's phone pursuant to the subpoena. The facts underlying the earlier motion to dismiss, as alleged in Plaintiff's original Complaint (#1), were that the subpoena stated that “YOU ARE HEREBY NOTIFIED to surrender your personal cellular phone ... immediately.” Plaintiff alleged that Johnson handed her the subpoena at her desk. Plaintiff indicated that she did not want to turn over her phone, and asked whether she had to do so. Johnson responded that Plaintiff had no choice in the matter. When Plaintiff asked if she could call an attorney first, a different “ISP official” told her she could not and she needed to turn over the phone immediately. Believing she had no choice other than to do what she was told, Plaintiff turned over her phone. She was also told to provide the passcode to her phone, which she understood to be a direct order, and she provided the passcode to Johnson. Johnson gave the phone to Knauer, who downloaded a complete digital copy of all the information on the phone.

*13 In denying the motion on absolute immunity grounds, the court wrote:

Hibbert v. Schmitz, 2017 WL 59075, at *6 (C.D. Ill. Jan. 5, 2017).

The court finds that this earlier analysis and conclusion still applies to Defendants' absolute immunity argument. Johnson was not “issuing” a warrant, as envisioned by the Kincaid court, nor was she performing an “administrative function” pursuant to the “explicit direction” of a judicial officer. The subpoena, on its face, only stated that Plaintiff was to surrender her personal cell phone “immediately.” Here, Johnson, in enforcing the subpoena, exercised her own discretion in ordering Plaintiff to turn over the phone immediately (telling Plaintiff “according to the subpoena, yes” when Plaintiff asked if she had to turn over the phone), even though Hosteny had told Johnson she could not “order” Plaintiff to turn over her phone. Johnson further exercised her own discretion in requesting that Plaintiff turn over the phone's passcode. Johnson refused to answer Plaintiff's query about whether she could contact her attorney, and instead looked to Hosteny, who informed Plaintiff that the subpoena required her to turn over her phone immediately. Johnson's actions, and function, in serving the subpoena were more than just the passive enforcement of a judicial directive. Rather, taking the facts in the light most favorable to Plaintiff, Johnson's function, as alleged in the Complaint and borne out by the discovery, was more in keeping with that of the investigative function of the executive branch of government, as opposed to the judicial branch, and thus is not entitled to absolute immunity. See Hartman v. Moore, 547 U.S. 250, 262 n.8 (2006).

Qualified Immunity

Defendants next argue that, even if she is not entitled to absolute immunity for the seizure of Plaintiff's cell phone, Johnson is entitled to qualified immunity because the state of the law at the time Johnson acted did not clearly establish that an officer acts unconstitutionally, and subjects herself to personal liability, when she serves a subpoena issued by a quasi-judicial official under facts similar to those in this case. Plaintiff responds that Johnson should have, and would have, been aware at the time of the seizure that Plaintiff had an expectation of privacy in her phone, and that Johnson's intrusion on that expectation for non-investigatory, work-related purposes, as well as for work-related misconduct, was unreasonable under the circumstances based on United States Supreme Court and Seventh Circuit case law.

*14 Qualified immunity is an immunity from suit rather than a mere defense to liability. Pearson v. Callahan, 555 U.S. 223, 237 (2009). The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson, 555 U.S. at 231.

The Supreme Court has mandated a two-step sequence for resolving government officials' qualified immunity claims: (1) a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right; and (2) if the plaintiff has satisfied this first step, the court must decide whether the right at issue was “clearly established” at the time of defendant's alleged misconduct. Pearson, 555 U.S. at 232. Judges of the district courts and the courts of appeals are permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. Pearson, 555 U.S. at 236.

Whether Plaintiff Has Presented Facts Demonstrating a Fourth Amendment Violation

In considering whether a defendant can invoke the defense of qualified immunity, the court, regarding the first prong, must inquire “whether the facts, taken in the light most favorable to the plaintiff, show that the defendant violated a constitutional right.” Gustafson v. Adkins, 803 F.3d 883, 890 (7th Cir. 2015). The right at issue in the instant case is a violation of the Fourth Amendment, in that Defendant Johnson violated Plaintiff's Fourth Amendment privacy rights when she unlawfully seized, without a warrant, Plaintiff's cell phone pursuant to a Merit Board subpoena. The ISP then extracted pictures, images, voicemails, contacts, and some Facebook messenger chats from the phone, and attempted to extract text messages.[6]

Seizure of the Cell Phone

In Fourth Amendment seizure analyses, “the appropriate inquiry is whether a reasonable person would feel free to decline the officer's request or otherwise terminate the encounter[,]” and the court must undertake this inquiry via a “ ‘contextual approach,’ that takes into account all of the circumstances surrounding the incident.” Kernats v. O'Sullivan, 35 F.3d 1171, 1177 (7th Cir. 1994). Some of the factors that a seizure has occurred, even where the person who may have been seized did not attempt to leave, include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. Kernats, 35 F.3d at 1177-78, quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980).

*15 Taking the facts in the light most favorable to Plaintiff, and drawing all inferences in her favor, the court finds that a trier of fact could find it was reasonable for Plaintiff to believe she had to comply with Johnson's orders or face arrest. Johnson was Plaintiff's superior at ISP, and a high-ranking sworn officer. Plaintiff was not a sworn officer. Defendant Johnson, a DII lieutenant colonel and high-ranking officer in the ISP, served a subpoena on Plaintiff directly, for her personal cell phone, and ordered that the phone be turned over immediately, pursuant to the subpoena. Even though Johnson had been instructed by Hosteny that if Plaintiff refused to turn over the phone they could not take it, when Plaintiff asked if she had turn over the phone, Johnson responded “yes.” According to Plaintiff, when she asked if she could contact her attorney, Johnson looked at Hosteny, who told Plaintiff she had to turn over her cell phone. Plaintiff testified that she believed she could be arrested for failing to comply, as this appeared to be a direct order coming from a high-ranking ISP officer armed with a court document ordering her phone be turned over immediately. Johnson even went beyond the language of the subpoena by asking for Plaintiff to provide the passcode for the phone.

Further, the manner in which Johnson served the subpoena also went beyond the normal procedure for how subpoenas are used in civil litigation. Defendants focus on the fact that Defendant Johnson was acting pursuant to a subpoena issued by a quasi-judicial body, and argue that the U.S. Supreme Court has upheld requiring a party to produce documents/items pursuant to administrative subpoenas without requiring a warrant. As Defendants themselves point out, however, the Court has upheld such subpoena requests because the reasonableness of the subpoena may be questioned prior to suffering any penalties for refusing to comply. See Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984). In Donovan, the Supreme Court contemplated documents being produced by a certain date, before which the party's counsel had time to go to court and fight to quash or amend the subpoena. Indeed, the Court in rejecting the Donovan defendant's claim that the administrative subpoena served on them in their place of business violated the Fourth Amendment, stated “[t]he administrative subpoena itself did not authorize either entry or inspection of appellee's premises; it merely directed appellee to produce relevant wage and hour records at appellants' regional office some 25 miles away.” Donovan, 464 U.S. at 415.

In contrast, in the instant case, the context and circumstances of the seizure of Plaintiff's phone pursuant to a subpoena are far different than that of Donovan. Here, the subpoenas were deliberately crafted so that the phone was turned over “immediately,” and Johnson, through her actions in serving the subpoena with Hosteny, made sure that Plaintiff had no opportunity to contest the subpoena or refuse to turn it over. The subpoenas were also served simultaneously on Plaintiff and McClure to prevent them from discussing the subpoenas, out of a concern that one of them would make their phone unavailable. Further, the phone was searched that day, immediately after ISP took possession of it, before Plaintiff or her counsel could file any action to contest the seizure. The manner in which the subpoena was served essentially turned it into a warrantless search. This was not a subpoena requesting certain documentation be turned over by a certain date, which would allow the attorney to go to court to quash the subpoena and prevent the documents from being turned over. The court finds that, taking the facts in the light most favorable to Plaintiff, a trier of fact could find Johnson's behavior in serving the subpoena was in violation of the Fourth Amendment.

Search of the Cell Phone

Although as a general matter, warrantless searches are per se unreasonable under the Fourth Amendment, there are a few specifically established and well-delineated exceptions to that general rule, and the U.S. Supreme Court has held that the “special needs” of the workplace justify one such exception. City of Ontario, California v. Quon, 560 U.S. 746, 760-61 (2010). For the investigation of work-related misconduct, a government employer's warrantless search is reasonable if it is (1) justified at its inception and (2) if the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search. Quon, 560 U.S. at 761. A threshold question that must be answered first, however, is whether the plaintiff had a reasonable expectation of privacy in the seized/searched item. Quon, 560 U.S. at 760.

*16 Thus, the court must first determine whether Plaintiff had a reasonable expectation of privacy in her personal cell phone. “Whether an expectation of privacy exists for Fourth Amendment purposes depends upon two questions: (1) whether the individual, by his conduct, has exhibited an actual expectation of privacy; and (2) whether the individual's expectation of privacy is one that society is prepared to recognize as reasonable.” United States v. Huart, 735 F.3d 972, 974-75 (7th Cir. 2013). Plaintiff here, by her own conduct in questioning whether she had to turn over her phone and asking to contact her attorney, exhibited an actual expectation of privacy in the phone and its contents. Further, the phone was passcode protected. Plaintiff, by her conduct, has shown that she sought to preserve the contents of her phone as private. See United States v. Knotts, 460 U.S. 276, 281 (1983). The court also finds that her expectation of privacy in her phone and its contents is one that society is prepared to recognize as reasonable. See Narducci v. Moore, 572 F.3d 313, 320 (7th Cir. 2009) (taking facts in light most favorable to plaintiff, he demonstrated a reasonable expectation of privacy in phone line at work). Smart phones such as an iPhone contain more than just dialed phone numbers, but also text messages, photographs, movies, personal records, and multitudes of other very personal, very private information. See Riley v. California, 134 S.Ct. 2473, 2488-90 (describing plethora of ways that cell phones implicate privacy concerns due to the vast amount of data and personal information such phones are capable of carrying); Quon, 560 U.S. at 760 (“Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.”). This was Plaintiff's personal cell phone, not a work phone issued by ISP. Plaintiff had a reasonable expectation of privacy in her phone.

The court must now determine (1) whether the search was justified at its inception and (2), if it was, whether the measures adopted were reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search. See Quon, 560 U.S. at 761. The court finds that, arguably, the search in question, the seizure and searching of Plaintiff's cell phone, was justified at its inception because it was related to workplace misconduct, i.e. Plaintiff's having sex in the ISP building with McClure. Further, it was reasonable to believe Plaintiff's cell phone might contain material related to her affair with McClure. See Quon, 560 U.S. at 761. However, although a seizure and search of Plaintiff's cell phone might have been “justified” in the sense that it was reasonable to believe there may be evidence of workplace misconduct on it, the court finds that, taking all the facts in the light most favorable to Plaintiff, the measures adopted were not reasonably related to the objectives of the search and that it was excessively intrusive in light of the circumstances giving rise to the search. See Quon, 560 U.S. at 761.

The court believes that a reasonable trier of fact could find the search of the phone itself to not be reasonably related to the objectives of search and that the search was excessively intrusive in light of the circumstances giving rise to the search. The objective of the search appears to be to find evidence of Plaintiff's workplace affair with McClure and whether they communicated about the investigation into the affair. However, based on the undisputed facts submitted by Defendants, the only limiting factor on the ISP search was that they were to retrieve “text messages.” However, the undisputed facts do not say the search was limited to text messages between Plaintiff and McClure, but rather just “text messages,” which a trier of fact could read to mean any and all text messages sent and received by Plaintiff on her phone, clearly unrelated to the investigation and excessive in light of search objectives. See Quon, 560 U.S. at 762 (finding no Fourth Amendment violation because the police department's review of the text messages was limited to only two months of messages, and the fact that the phone was department-issued reduced the plaintiff's privacy expectation).

Further, it was only via the presence of the iTunes backup encryption that ISP could not access the text messages. In any event, the search expanded beyond just text messages as Knauer was able to retrieve “pictures, images, voicemails, contacts, and some Facebook messenger chats.” Knauer turned this information over to Fortson, who reviewed “the records and information obtained from the phones[.]” Fortson testified that he did not write a report based on anything from Plaintiff's phone, but nevertheless the search of the phone was accomplished and multitudes of what must have been very personal data were retrieved from the ISP and stored on an external hard drive. A trier of fact could find that the search parameters were excessive to begin with, and that the search only became more excessive once it was conducted and other types of material were extracted from the phone. As noted above, smart phones like the iPhone contain personal and private details of people's lives: intimate photos, voicemails, private conversations, business and medical records. The search conducted by ISP was excessive in light of what was being investigated.

*17 Further informing the court's opinion is that there were other, far less intrusive methods available to Defendants in obtaining information about Plaintiff and McClure's relationship. They could interview witnesses, Plaintiff and McClure themselves, and watch video from the overt cameras to follow the pairs' movements throughout the building. The search of the phone also came after ISP had the covert video of McClure and Plaintiff engaging in sexual conduct in the conference room. The court recognizes the law does not require “only the ‘least intrusive’ search practicable under the Fourth Amendment.” Quon, 560 U.S. at 763. However, here, by seizing Plaintiff's personal cell phone, and searching for all of Plaintiff's text messages, Facebook messenger chats, voicemails, pictures, and contacts, and extracting much of that data, Defendants chose arguably the most intrusive method. Taking all the evidence in the light most favorable to Plaintiff, as the court must do, a reasonable trier of fact could find that Defendants' violated Plaintiff's Fourth Amendment rights.

Whether the Constitutional Right In Question Was Clearly Established

With regard to the “clearly established” prong, the Supreme Court has recently stated that “[u]nder our cases, the clearly established right must be defined with specificity[,]” and noted that “[t]his Court has repeatedly told courts ... not to define clearly established law at a high level of generality.” City of Escondido, California v. Emmons, — S.Ct. —, 2019 WL 113027, at *2 (Jan. 7, 2019). To be clearly established, a legal principle must be “settled law,”and it must clearly prohibit the officer's conduct in the particular circumstances before him. District of Columbia v. Wesby, 138 S.Ct. 577, 581 (2018). In other words, existing law must have placed the constitutionality of the officer's conduct “beyond debate,” a demanding standard that protects all but the plainly incompetent or those who knowingly violate the law. Wesby, 138 S.Ct. at 589. The rule must be “settled law,” which means it is dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive authority[.]’ ” Wesby, 138 S.Ct. at 589-90, quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011). It is not enough that the rule is suggested by then-existing precedent, but rather the precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. Wesby, 138 S.Ct. at 590.

The Supreme Court has held:

Wesby, 138 S.Ct. at 590.

However, while a case “directly on point” is not required, the dispositive question is whether the violative nature of the particular conduct is clearly established, and the inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Neely-Bey Tarik-El v. Conley, — F.3d —, 2019 WL 74913, at *5 (7th Cir. Jan. 2, 2019). The specificity of the rule in question is especially important in Fourth Amendment cases. Wesby, 138 S.Ct. at 590. Ordinarily, to show that the law was “clearly established,” plaintiffs must point to a “closely analogous case” finding the alleged violation unlawful. Reed v. Palmer, 906 F.3d 540, 547 (7th Cir. 2018).

This court must look first to controlling Supreme Court precedent and Seventh Circuit decisions on the issue and, if no controlling precedent exists, the court may broaden its survey to include all relevant caselaw in order to determine whether there was such a clear trend in the caselaw that the court can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time. Reed, 906 F.3d at 547. Neither an unpublished circuit court decision nor a district court decision can clearly establish the law because they are not authoritative as precedent and therefore do not establish the duties of nonparties. Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995).

*18 Alternatively, in some rare cases, where the constitutional violation is patently obvious, the plaintiffs may not be required to present the court with any analogous cases, and instead, plaintiffs can demonstrate clearly established law by proving the defendant's conduct was so egregious and unreasonable that no reasonable official could have thought he was acting lawfully. Reed, 906 F.3d at 547. Outrageous conduct obviously will be unconstitutional, but even as to action less than an outrage, officials can still be on notice that their conduct violates established law in novel factual circumstances. Reed, 906 F.3d at 547.

Seizure of the Phone

The court finds the analysis from the Order (#10) on the earlier motion to dismiss is still sound and applicable to Defendant's claim on qualified immunity. The court has found that a genuine issue of material fact exists as the manner in which the subpoena was served and whether Plaintiff felt free to refuse to turn over the phone based on Johnson's show of authority. Further, at the time the phone was seized, “[i]t was clearly established at the time of the seizure of the phone that, while a threat of disciplinary action by an employer does not rise to the level of a seizure, service of an administrative subpoena can rise to the level of a Fourth Amendment seizure if the officer uses a show of authority such that the individual does not feel free to refuse.” Hibbert, 2017 WL 59075, at *7, citing Carter v. City of Milwaukee, 743 F.3d 540, 543-44 (7th Cir. 2014) and Dreibel v. City of Milwaukee, 298 F.3d 622, 641-42 (7th Cir. 2002). The analysis in the earlier Order concluded that “[g]iving Hibbert the inference that she had to surrender her phone because she reasonably feared arrest or detention, Defendants were on notice that officers who threaten a government employee with arrest have conducted a seizure even if they also have an administrative subpoena.” Hibbert, 2017 WL 59075, at *7. Taking the facts presented at summary judgment in the light most favorable to Plaintiff and drawing all inferences in her favor, the court finds a genuine issue of material fact exists as to whether the circumstances surrounding the seizure of her cell phone made Plaintiff reasonably fear arrest or detention if she failed to comply, and therefore the earlier reasoning on denying qualified immunity still applies.

The Search of the Phone

The court finds that, based on the Supreme Court's decisions in Quon and O'Connor, Defendants should have been on notice that their conduct was unlawful in seizing and searching Plaintiff's personal cell phone. O'Connor, a case involving a state hospital employee's claim that authorities improperly searched and seized personal items from his office, established the test that workplace searches are lawful if a search is reasonable under “all the circumstances[,]” in that the search is justified at its inception and reasonably related in scope to the circumstances. O'Connor, 480 U.S. at 725-26; Quon, 560 U.S. at 761.

The factual situation facing the Supreme Court in Quon was even closer to the factual situation in the instant case than that of O'Connor. In Quon, the police department reviewed two months of text messages on an officer's department-issued pager. The pager was issued to help SWAT team members respond faster to emergency situations. The department also had issued a policy, before issuing the pagers, notifying officers that the city reserved the right to monitor and log all network activity, including email and internet use, without notice. The Court found that, proceeding on the assumption that the plaintiff had a reasonable expectation of privacy in the text messages sent on the department-issued phone, the scope of the search was reasonable because it was an efficient and expedient way to determine whether the plaintiff's overages were the result of work-related messaging or personal use (the purpose for the search). Quon, 560 U.S. at 761. The Court further found the search was not “excessively intrusive,” because the department only reviewed two months of text messages and the investigator redacted all messages the plaintiff sent while off duty, which reduced the intrusiveness of any further review of text message transcripts. Quon, 560 U.S. at 761-62. The Court also found that “the extent of any [privacy] expectation is relevant to assessing whether the search was too intrusive[,]” writing:

Quon, 560 U.S. at 762-63 (emphasis added).

The Court in Quon made clear that a plaintiff would have a much greater privacy expectation in personal communication devices or methods, such as an email account or pager, and that a search of such a personal device would be much more intrusive, because it would be much more likely to reveal personal, intimate details.

Here, in the instant case, Plaintiff was forced via subpoena and the actions of Defendant Johnson to turn over her personal cell phone to a superior officer at the ISP immediately, without time to consult her attorney or contest the subpoena. The phone was searched, apparently, for all text messages, and, finding access to the text messages barred, all voicemails, contacts, and pictures, along with some Facebook messenger chats, were accessed. This search was far more unlimited and intrusive than the search in Quon, and based on the Court's language in Quon concerning personal email/communications and limitations on seizures and searches, it would be clear to a reasonable police officer that this seizure and search violated the Fourth Amendment.

Defendants focus much of their argument on the absence of Supreme Court or Seventh Circuit precedent directly analogous to the situation in this case. This court believes that Quon puts reasonable police officers on notice of whether their actions violate the Fourth Amendment in a situation like that which confronted Defendant Johnson. Still, even if Quon was found to be too factually different to stand as a factually analogous case, the reasonableness test established by O'Connor, and reinforced by Quon, is sufficient to clearly establish the law in an obvious case even without a relevant body of case law. Gustafson, 803 F.3d at 892. Because this is an obvious case that presents a flagrant Fourth Amendment violation, identification of a body of relevant case law is unnecessary. See Gustafson, 803 F.3d at 892. Defendants are not entitled to qualified immunity on Count I. Defendants' motion is DENIED on this ground.

II. WHETHER THE INSTALLATION OF THE COVERT CAMERAS VIOLATED THE FOURTH AMENDMENT

Defendants next argue that (1) the use of the covert cameras did not violate the Fourth Amendment and (2) they are entitled to qualified immunity for the installation of the covert cameras in conference room B that captured Plaintiff and McClure engaging in sex acts at work. Plaintiff argues that Defendants are not entitled to qualified immunity and that summary judgment should be granted in her favor.

*20 As discussed above, in order to defeat a claim of qualified immunity, it must be shown that a defendant violated a constitutional right, and that, at the time of the violation, the right was clearly established in precedent. In order to establish that Defendants violated Plaintiff's Fourth Amendment rights by placing the cameras in the conference room, the court first determine whether or not Plaintiff had an expectation of privacy in conference room B. See Narducci v. Moore, 572 F.3d 313, 319 (7th Cir. 2009).

Since the Supreme Court's decision in O'Connor, the federal courts have addressed, on multiple occasions, privacy expectations in certain locations in the workplace. For example, the courts have found that there was a reasonable expectation of privacy in a female locker room (Gustafson, 803 F.3d at 892), a plaintiff employee's desk and file cabinets (O'Connor, 480 U.S. at 719), and the dispatch room of the county public works department (Richards v. County of Los Angeles, 775 F.Supp.2d 1176 (C.D. Cal. 2011)). On the other hand, courts have found no reasonable expectation of privacy in a public school classroom (Marriott v. USD 204, Bonner-Springs Edwardsville, 289 F.Supp.3d 1235, 1239-40 (D. Kan. 2017)).

As stated above, the court must answer two questions in determining whether Plaintiff has an expectation of privacy in the conference room: (1) whether Plaintiff, by her conduct, has exhibited an actual (subjective) expectation of privacy, i.e. whether she has shown that she sought to preserve her trysts in the conference room as private; and (2) whether Plaintiff's subjective expectation of privacy is one that society is prepared to recognize as reasonable, i.e.—whether Plaintiff's expectation, viewed objectively, is justifiable under the circumstances. See Smith v. Maryland, 442 U.S. 735, 740 (1979).

The court finds that Plaintiff, by her conduct, has shown that she sought to preserve her activity with McClure in the conference room as private. Plaintiff was engaging in sexual acts in the conference room, an act which almost always is conducted in private behind closed doors. Plaintiff and McClure took the step to lock the doors to the conference room, ensuring that, even if someone attempted to disturb them, the person could not enter the room, or the pair would at least might have some warning and time to dress before a person entered. Thus, Plaintiff has shown that she had an actual expectation of privacy in the conference room.

However, Plaintiff's subjective expectation of privacy in the conference room must also be one that society is prepared to recognize as reasonable. The Seventh Circuit has considered one case, Gustafson, in which a public employer placed covert cameras in a room that undisputedly was used by female officers to change into and out of their work uniforms before and after shifts. The Seventh Circuit found the installation of such cameras in that room to be “criminal and outrageous[,]” constituting a flagrant Fourth Amendment violation. Gustafson, 803 F.3d at 889, 892. Here, however, it is not an undisputed fact that the conference room in question was used primarily as a de facto, makeshift changing/locker room. As a result, the value of the Gustafson case to the court's analysis on this issue is minimal. Rather, in support of their arguments, the parties rely primarily on two out-of-circuit district court cases: Richards and Marriott.

First, Plaintiff relies heavily on the California district court's decision in Richards. In that case, the county received an anonymous complaint alleging that an employee, the plaintiff, had engaged in sexual activity with a visitor in the department of public works dispatch room while she was on duty at night. Covert cameras were installed in the dispatch room that recorded inappropriate conduct by the plaintiff. The plaintiff, in a declaration, declared that she believed the dispatch room was private.

*21 The room was a secured space separated by restricted access located on the second floor of department headquarters, with a window that was generally covered and too high up for a pedestrian to see inside. Access to the room was only through two doors, both equipped with an electronic lock system which automatically locked the doors outside of normal business hours. Non-dispatcher county employees rarely entered the dispatch room, and when they did they would typically knock to announce their presence before entering. While on duty in the dispatch room, the plaintiff worked long shifts alone and generally did not leave her post except for brief bathroom breaks. She was required to take her meal and rest breaks in the dispatch room. It was also not uncommon during the “after hours” shifts for the entire building to be empty with the exception of the dispatcher on duty and the security personnel. The department also furnished their employees with personal lockers in the dispatch room, as well as with a television, food cooking items, and storage items. It was further “undisputed” that, while in the dispatch room, the plaintiff and others engaged in private acts, such as: changing into or out of work-out clothes; pumping breast milk; adjusting or undoing their bras; applying deodorant, picking pimples, removing or adjusting tampons, picking their nose, and other private activities.

The district court found that Plaintiff had both a subjective expectation of privacy, and that that expectation was one that society would find to be reasonable. Richards, 775 F.Supp.3d at 1182. The court noted that:

Richards, 775 F.Supp.2d at 1183.

The court further noted that the dispatch room was a secured office separated from the rest of the department by restricted access doors, and was not open to the public and not visible to the public or other employees from the outside. Richards, 775 F.Supp.2d at 1183. The court went on to hold that the expectation of privacy was reasonable even though other employees had access to the dispatch room, because of the exceptional intrusiveness of video surveillance, and that the plaintiff had a reasonable expectation that she “would not be surreptitiously videotaped.” Richards, 775 F.Supp.2d at 1183. The court wrote that the facts in support of a reasonable expectation of privacy were compelling. The court noted its determination did not depend on the fact that the plaintiff worked alone or that the dispatch room had locked doors, but rather “[a]bsent the aforementioned—and unusual—workplace scenario where a government employee's office is so open to others that no expectation of privacy would be reasonable, an employee has a Constitutionally protected right to privacy in the workplace[ ]” and that this “right undeniably extends to shared offices.” Richards, 775 F.Supp.2d at 1183-84.

Standing in contrast to Richards is the Kansas district court's decision in Marriott. In that case the plaintiff, a science teacher at a public school, learned that the school had installed a covert camera in his classroom throughout his tenure there and had recorded he, his wife, and his son using the classroom to change their clothes for after school activities. The plaintiff alleged that whenever he or his family used the classroom to change, he would always lock and secure the door to ensure privacy.

The district court found that the plaintiff did not have a reasonable expectation of privacy in his classroom. The plaintiff claimed they had a reasonable expectation of privacy because they locked the classroom doors while changing their clothes, and that the locked classroom was for their exclusive use and other school personnel did not have access. However, the court noted, “plaintiffs did not plead any facts in their complaint to establish that Rob Marriott had exclusive use of his public classroom, or that the school district had explicitly provided the classroom for his private use[,]” and the plaintiff's “classroom was not the same as his own personal office—it was a classroom in a public school, open to students, administrators, other staff, custodial staff, and sometimes other members of the public.” Marriott, 289 F.Supp.3d at 1240. The court concluded that:

Marriott, 289 F.Supp.3d at 1240.

The court would also note the decision of the district court in Jones v. Houston Community College System, 2012 WL 3155573 (S.D. Tex. Aug. 2, 2012). In that case, the plaintiffs were officers in a campus security force, and discovered a covert video surveillance camera in an office they used for various purposes, including changing in and out of their uniforms. The court found that the plaintiffs did not have a reasonable expectation of privacy in the security office because evidence revealed “that access to the security office was not limited as [plaintiff] alleged.” Jones, 2012 WL 3155573, at *11. The court noted that:

*23 Jones, 2012 WL 3155573, at *11.

The court believes that the evidence in this case places it more in line with the factual circumstances of Marriott and Jones than Richards. First, the conference room was not a closed-off secured area. While it was in a secure building, once in the ISP building, anyone could access the fifth floor (unlike other floors). The conference room was not Plaintiff's or McClure's personal office; indeed it was not anyone's personal office. It was used primarily for meetings by the agencies occupying the ISP building. While it was true that the doors to conference room B could be, and were, locked by Plaintiff and McClure, a large number of people have keys to those locks: maintenance staff, all CMS Benefits employees, CMS engineers, and others. There is no evidence that Plaintiff and McClure had keys to the locks. Not only was the conference room accessible to anyone who was able to enter the building, and even if it was locked, accessible to just about every CMS employee and maintenance staff member (and others), but Plaintiff did not even work on the fifth floor where the conference room was located. It was not her office, a coworker's office, or even an ISP office.

Plaintiff claimed that she and others used the conference room to change into workout clothes, yet none of the video captured anyone changing clothes. Plaintiff also admitted that she only changed clothes in the conference room to workout in the warmer months, and that she had not changed clothes in the conference room for her after hours bartender job since 2012. Plaintiff also testified that she did not think any other people, besides herself, changed clothes in the conference room, and she never witnessed anyone go into the conference room in one set of clothing and come out in a different set of clothing. While there was testimony from Plaintiff and Mike Eck that other employees would use the room to conduct phone calls or read on their breaks, this is a far cry from the dispatch room at issue in Richards, where dispatchers were required to take their meals and rest breaks and napped, changed clothes regularly, watched television, cooked, changed bras and tampons, and pumped breast milk. See Richards, 775 F.Supp.3d at 1183. Unlike the dispatch room in Richards, conference room B was not a “second home” and access to the conference room was nowhere near as limited or controlled as the Richards dispatch room. Rather, conference room B is more akin to the rooms at issue in Marriott and Jones, rooms open to many other people in the building and not personal spaces traditionally thought of as private, such as a locker room or personal office with much more restricted access. See Jones, 2012 WL 3155573, at *11; Marriott, 289 F.Supp.3d at 1240. Further, and importantly, Plaintiff has no evidence that any of the Defendants knew that conference room B was used for any purpose other than for holding meetings and other work-related activity, and certainly has no evidence that any Defendant knew she or anyone else changed clothes in that room. See Jones, 2012 WL 3155573, at *11. For these reasons, the court finds there was no expectation of privacy in conference room B, and therefore, Plaintiff's claims under the Fourth Amendment in Counts II and III must fail. Judgment is GRANTED as to all Defendants on Counts II and III.

III. REMAINING ISSUES

Injunctive Relief

*24 Defendants argue that Count I's official capacity claim against Defendant Schmitz should be dismissed. Defendants argue that there is no ongoing violation of Plaintiff's rights because the State Police and Director Schmitz no longer possess the telephone data from Plaintiff's phone. Defendants assert that in Count I, Plaintiff requested that Schmitz be required to return “all copies of information obtained from [Plaintiff's] iPhone to her so that the ISP, nor any other state agency, maintains no record of this information.” Defendants argue that Schmitz has already done so, and thus there is no ongoing violation for which the court can grant injunctive relief, and thus Schmitz is entitled to summary judgment on this claim. Alternatively, Defendants argue the claim is moot with regard to Schmitz because it is impossible for the court to grant any effective relief to Plaintiff. Plaintiff responds Defendants turned over the information only a few days before their summary judgment motion was filed, so Plaintiff has not had a meaningful opportunity to engage in discovery on this point. In any event, Plaintiff argues that because data could be recaptured from a computer, “an order remains necessary to insure that no attempts will be made in the future to again retrieve this data.” Based on Plaintiff's argument, the court will deny Defendants' motion on this ground at this time.

Defendant Ley's Motion to Dismiss

Because the court has granted judgment in his favor on Count III of Plaintiff's First Amended Complaint, Defendant Ley's Motion to Dismiss (#26), which requests dismissal of Count III, is MOOT.

IT IS THEREFORE ORDERED:

ENTERED this 7th day of February, 2019.

The following background is taken from the parties' Statements of Undisputed Material Facts, Additional Facts, and exhibits attached to the Motions for Summary Judgment and Responses.

Fortson made this statement in his January 19, 2018 deposition. This statement contradicts a statement he made in a January 13, 2015 deposition, where he was asked “Whose idea was it to install the covert video surveillance?” and, referring to himself and Kindred-Johnson, Fortson answered “It was both of ours.”

Ley testified that he was not involved in this decision, and only learned of the installation of the higher quality cameras after the fact.

While this would seem to contradict the January 2018 deposition testimony of ISP Digital Crimes Unit Acting Director Jeff Knauer that he still has a copy of the information extracted from Plaintiff's phone on an external hard drive because he was “advised that I had to keep copies of everything[,]” Defendants have filed affidavits from ISP officials stating that, as of August 2018, ISP no longer retains any data downloaded from Plaintiff's phone.

The court realizes that motions to dismiss are decided pursuant to a different standard, and that a court may deny a motion to dismiss on a certain ground, but then grant a motion for summary judgment on that same ground once the record and arguments have been more fully developed. Here, however, discovery has revealed that the seizure of Plaintiff's cell phone did occur in the manner alleged in Plaintiff's complaint, if all facts are viewed in the light most favorable to Plaintiff. Therefore, the court finds that Judge Myerscough's analysis and conclusion on this issue in the motion to dismiss order are persuasive and should stand.

The summary judgment motions and responses filed by the parties do not make clear that there are two separate Fourth Amendment claims at issue with regard to the phone: the seizure of the cell phone and its subsequent search. The Order (#10) on the original motion to dismiss (#6) made clear that there were two claims involving the phone, the first being the seizure and the second being the search. The analysis in that Order treated the claims as separate. Even though the Order concerned the original Complaint (#1) in this case, Count I of Plaintiff's Amended Complaint (#22) regarding the cell phone is nearly identical to the cell phone count in the original Complaint. Defendant Johnson is implicated both in the seizure of the phone for actually seizing it and in the search for obtaining the passcode allowing access to the phone and delivering the phone to Jeff Knauer for him to extract the desired information. Therefore, the court will treat Plaintiff's Count I Fourth Amendment claim as being for both the seizure of the phone and its subsequent search.