Banks v. Opat

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 12, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
ALBERT DEWAYNE BANKS,

Plaintiff - Appellant,

v. No. 19-3073
(D.C. No. 5:15-CV-03093-HLT-KGS)
STEVEN L. OPAT; GLEN F. VIRDEN; (D. Kan.)
SPRINT/NEXTEL WIRELESS
TELEPHONE COMPANY; VIRGIN
MOBILE USA/SPRINT PCS; TIMOTHY
BROWN; BRAD SCHOEN; RON
MILLER; KANSAS BUREAU OF
INVESTIGATION,

Defendants - Appellees,

and

GEARY COUNTY, KANSAS;
JUNCTION CITY POLICE
DEPARTMENT; RILEY COUNTY
POLICE DEPARTMENT; TOPEKA
POLICE DEPARTMENT,

Defendants.
_________________________________

ORDER AND JUDGMENT*
_________________________________

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before MATHESON, KELLY, and PHILLIPS, Circuit Judges.
_________________________________

Pro se prisoner Albert Dewayne Banks appeals from a district court order

dismissing his civil rights complaint, which alleged violations of federal and state wiretap

statutes, violations of the Fourth Amendment, and civil conspiracy. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.1

I. BACKGROUND2

This case arises from a law enforcement investigation of drug trafficking in Geary

County, Kansas. In March and April 2013, upon application of Geary County District

Attorney Steven Opat, Judge David R. Platt of the Eighth Judicial District of Kansas

issued wiretap orders for cell phones used by Anthony Thompson and Mr. Banks.

Ensuing wiretaps produced information that law enforcement officers used to obtain

search warrants for various locations, including Mr. Thompson’s residence, where

“officers seized cell phones, cash, miscellaneous documents, drug paraphernalia, and

credit cards.” United States v. Thompson, 866 F.3d 1149, 1152-53 (10th Cir. 2017),

vacated and remanded by Thompson v. United States, 138 S. Ct. 2706 (2018).

1
Although we liberally construe pro se pleadings, we do not assume the role
of Mr. Banks’s advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
2
In reviewing a district court’s dismissal order, “we may exercise our
discretion to take judicial notice of publicly filed records in our court and certain
other courts concerning matters that bear directly upon the disposition of the case at
hand.” United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007). We thus
consider the district court’s decisions in Mr. Banks’s criminal case.
2
 A. Mr. Banks’s Criminal Case

A federal grand jury indicted Mr. Banks on multiple counts of distributing and

conspiring to distribute crack cocaine. He joined co-defendants’ motions to suppress the

intercepted communications. The motions argued (1) the wiretap orders did not permit

the interception of electronic (text message) communications, and (2) investigators

impermissibly intercepted his wire communications outside the Eighth Judicial District’s

jurisdiction. The district court rejected both arguments.

First, the court ruled that investigators reasonably believed the wiretap orders,

despite specifying only wire communications, permitted the interception of both text

messages and oral communications.3 In particular, the court found an understanding

3
The term “‘wire communication’ means any aural transfer made in whole or
in part through the use of facilities for the transmission of communications by the aid
of wire, cable, or other like connection between the point of origin and the point of
reception . . . .” 18 U.S.C. § 2510(1); see also Kan. Stat. Ann. § 22-2514(1). An
“‘aural transfer’ means a transfer containing the human voice at any point between
and including the point of origin and the point of reception[.]” 18 U.S.C. § 2510(18).
In contrast, an “‘oral communication’ means any oral communication uttered by a
person exhibiting an expectation that such communication is not subject to
interception under circumstances justifying such expectation, but such term does not
include any electronic communication[.]” Id. § 2510(2). A telephone conversation
qualifies as a “wire communication.” See United States v. Axselle, 604 F.2d 1330,
1334 (10th Cir. 1979).
An “‘electronic communication’ means any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole or in part by
a wire, radio, electromagnetic, photoelectronic or photooptical system that affects
interstate or foreign commerce, but does not include—(A) any wire or oral
communication . . . .” Id. § 2510(12); see also Kan. Stat. Ann. § 22-2514(11).
“[T]ext messages constitute ‘electronic communications’ within the meaning of the
Wiretap Act.” United States v. Jones, 451 F. Supp. 2d 71, 75 (D.D.C. 2006), aff’d in
part, rev’d in part on other grounds sub nom. United States v. Maynard, 615 F.3d
544 (D.C. Cir. 2010).
3
between Judge Platt and investigators “that the orders were supposed to authorize

interception of electronic [i.e., text] communications.” United States v. Banks and

Thompson, 5:13-CR-40060-DDC, 2014 WL 4261344, at *4 (D. Kan. Aug. 29, 2014).

The court thus applied the good faith exception to the Fourth Amendment’s exclusionary

rule and refused to suppress the text messages. Id. at *5 (citing United States v. Leon,

468 U.S. 897, 920-22 (1984)).

Second, the court “rule[d] that a Kansas state court judge acting under Kansas law

has no authority to authorize interception outside the judge’s own judicial district.”

ROA, Vol. I at 43. It granted the motion to suppress the extra-territorial communications,

but it stated that officers “almost certainly” acted in good faith, “because one would not

expect the officers executing the search warrants to have apprehended the subtle,

technical jurisdictional defect.” United States v. Banks and Thompson, No. 13-CR-

40060-DDC, 2015 WL 2401048, at *3 (D. Kan. May 15, 2015).

A jury convicted Mr. Thompson and Mr. Banks on all counts.4

4
We affirmed the convictions. See Thompson, 866 F.3d at 1152; United States
v. Banks, 706 F. App’x 455, 460 (10th Cir. 2017). The Supreme Court vacated those
decisions and remanded for further consideration in light of Carpenter v. United
States, 138 S. Ct. 2206, 2217, 2222 (2018). In Carpenter, the Court held that “an
individual maintains a legitimate expectation of privacy in the record of his physical
movements as captured through [cell service location information].” Because law
enforcement relied on such information to prove some of Mr. Thompson’s and Mr.
Banks’s communications, we remanded to the district court to determine whether the
government presented sufficient evidence absent the information. United States v.
Thompson, 740 F. App’x 166, 168 (10th Cir. 2018).
4
 B. Mr. Banks’s Civil Case

While his criminal proceeding was pending, Mr. Banks filed a pro se suit in the

District of Kansas against Judge Platt; Geary County District Attorney Steven L. Opat;

Kansas Bureau of Investigation Special Agent Glen Virden; Junction City Police Chief

Timothy Brown; Riley County Police Department Director Brad Schoen; Topeka Police

Chief Ron Miller; and Sprint/Nextel Wireless Telephone Company and Virgin Mobil

USA/Sprint PCS (collectively, “Sprint”). The district court dismissed Judge Platt,

District Attorney Opat (in his official capacity), and Special Agent Virden (in his official

capacity) on immunity grounds.5

In an amended pro se complaint, Mr. Banks named as defendants Judge Platt,

District Attorney Opat, Special Agent Virden, Police Chief Brown, and Sprint. Mr.

Banks alleged:

• Judge Platt (1) knew or should have known he lacked jurisdiction to issue
wiretap orders beyond his territorial jurisdiction; and (2) set an excessive
bond and twice failed to appoint counsel in May 2013.

• District Attorney Opat, Special Agent Virden, and Police Chief Brown
(“law enforcement defendants”) knew or should have known that the
wiretap orders sought communications that were outside of Judge Platt’s
territorial jurisdiction and did not encompass text messages.

• The law enforcement defendants impermissibly disclosed his text messages
to third parties, such as the U.S. Attorney’s Office, despite the absence of
reference to texts in the wiretap orders.

5
To the extent Mr. Banks had listed various police departments in the caption
as defendants, the district court noted they are not suable entities and dismissed them
as well. Similarly, the district court dismissed Geary County, as there were no
allegations of misconduct against it.
5
 • The law enforcement defendants “all had final decision making authority
within their respect[ive] departments.” ROA, Vol. II at 9.

• Sprint improperly intercepted and disclosed his text messages, resulting in
the improper execution of a search warrant.

• “the defendants act[ed] under the color of state law.” Id.

He sued under 18 U.S.C. § 2520 (providing a civil action for the unlawful

interception, disclosure, or use of wire, oral, or electronic communications), Kan. Stat.

Ann. § 22-2518 (same), 42 U.S.C. § 1983, and civil conspiracy law. The following chart

summarizes the specific claims alleged in the amended complaint against each of the

defendants:

DEFENDANTS CLAIMS FOR RELIEF
Judge Platt, sued in his
individual and official NONE SPECIFIED
capacities
District Attorney Opat, 1. Violation of Kan. Stat. Ann. § 22-2518
Chief Brown, and Agent 2. Violation of 18 U.S.C. § 2520
Virden, each sued in his 3. Violation of 42 U.S.C. § 1983 (Fourth Amendment)
individual and official 4. “Conspiracy to Commit the Substantive Counts”
capacity (pled only against Opat & Virden)

Sprint 1. Violation of Kan. Stat. Ann. § 22-2518
2. Violation of 18 U.S.C. § 2520
3. Violation of 42 U.S.C. § 1983 (Fourth Amendment)

The district court screened the amended complaint under 28 U.S.C. §§ 1915(e)

and 1915A, and dismissed (1) Judge Platt, (2) the law enforcement defendants—District

Attorney Opat, Police Chief Brown, and Special Agent Virden—to the extent they were

sued in their official capacities, and (3) any defendants named in the original complaint

but not named in the amended complaint—Director Schoen, Police Chief Miller, Geary

6
County, the Kansas Bureau of Investigation, and the various police departments. The

remaining defendants moved to dismiss under Rule 12(b)(6). The district court granted

the motions. Mr. Banks unsuccessfully sought reconsideration under Rule 59(e). His

appeal challenges the Rule 12(b)(6) dismissals and the denial of reconsideration.6

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s dismissal of an action under Rule 12(b)(6).

Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). “To survive a motion

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotations omitted). Plausibility requires “more than the mere possibility of

misconduct.” Id. at 679. The plaintiff must “plead[ ] factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. at 678. “[W]here ‘there is no disputed issue of fact raised by an affirmative defense,

or the facts are completely disclosed on the face of the pleadings, . . . it is appropriate and

expedient to dispose of a claim by a motion to dismiss [based on an affirmative defense]

under Rule 12(b).” Frost v. ADT, LLC, 947 F.3d 1261, 1267 (10th Cir. 2020) (quoting

6
On appeal, Mr. Banks does not contest and thus has waived any challenge to
the district court’s dismissal of his claims against Judge Platt, or to the official
capacity claims against Chief Brown and Agent Virden, or to any claims against
defendants named in the original complaint but not named in the amended complaint.
See Burke v. Regalado, 935 F.3d 960, 995 (10th Cir. 2019) (“The failure to raise an
issue in an opening brief waives that issue.” (quotations omitted)).
7
5 Arthur R. Miller et al., Federal Practice and Procedure § 1277 (3d ed. 2002) (August

2019 update)).

B. Wiretap Claims

The district court concluded that Mr. Banks failed to plead a plausible federal or

state wiretap claim because the defendants relied in good faith on Judge Platt’s orders

regarding both electronic (text messages) and extra-territorial communications. We

resolve these claims as follows:

As to the law enforcement defendants:

(1) We affirm dismissal of the text messages claim because
the district court’s determination in the criminal case that
investigators acted in good faith precludes Mr. Banks
from contesting a good faith affirmative defense in this
case;7 and

(2) We reverse dismissal of the extra-territorial
communications claim because the district court erred in
holding that the disposition in the criminal case precluded
Mr. Banks from contesting a good faith defense
here. Collateral estoppel does not apply because the
district court in the criminal case excluded the extra-
territorial evidence rather than rely on investigators’ good
faith to admit it.

As to Sprint:

We reverse dismissal of the text messages claim
because the collateral estoppel applicable to the law
enforcement defendants does not extend to Sprint.

7
To the extent the district court in this case suggested that Mr. Banks’s
statutory wiretap claims failed without his alleging lack of good faith, we note that a
plaintiff is not required to anticipatorily plead against an affirmative defense. See
Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018).

8
 Legal Background

Title I of the Electronic Communications Privacy Act of 1986 (“ECPA”), 18

U.S.C. §§ 2510–2522, provides that “any person whose wire, oral, or electronic

communication is intercepted, disclosed, or intentionally used in violation of this chapter

may in a civil action recover from the person or entity, other than the United States,

which engaged in that violation such relief as may be appropriate.” 18 U.S.C. § 2520(a).

Kansas law provides a nearly identical remedy. See Kan. Stat. Ann. § 22-2518(1).

Both the federal and state statutes provide “a complete defense” for “good faith

reliance” on “a court warrant or order.” 18 U.S.C. § 2520(d); Kan. Stat. Ann.

§ 22-2518(2). The statutory good faith defense is akin to the good faith exception to the

exclusionary rule for Fourth Amendment violations. See United States v. Moore, 41 F.3d

370, 376 (8th Cir. 1994) (observing that the federal wiretap statute’s “legislative history

expresses a clear intent to adopt suppression principles developed in Fourth Amendment

cases”); see, e.g., Reed v. Labbe, No. CV 10–8315–SVW (OP), 2012 WL 5267726, at *9

(C.D. Cal. Oct. 22, 2012) (relying on findings in the plaintiff’s underlying criminal case

to conclude that § 2520(d) provided a complete defense to plaintiff’s claims under the

ECPA and required dismissal under Rule 12(b)(6)); Marino v. Hegarty, No. 86 C 6759,

1987 WL 9582, at *1 (N.D. Ill. Apr. 10, 1987) (“Good faith reliance on a court order is a

defense both to fourth amendment claims and to the claims under [the ECPA].”).

To invoke the good faith defense, an “officer’s reliance on [a] defective warrant

still must be objectively reasonable.” United States v. Russian, 848 F.3d 1239, 1246

(10th Cir. 2017); see also Davis v. Gracey, 111 F.3d 1472, 1484 (10th Cir. 1997) (stating

9
that the good-faith defense to an 18 U.S.C. § 2707 civil claim under Title II of the ECPA

for unauthorized access to stored electronic communications requires, like the Fourth

Amendment, objectively reasonable reliance on a warrant). “The test is an objective one

that asks ‘whether a reasonably well trained officer would have known that the search

was illegal despite the magistrate’s authorization.’” United States v. Otero, 563 F.3d

1127, 1134 (10th Cir. 2009) (quoting Leon, 468 U.S. at 922 n.23). “In addition,

application of the ‘good faith’ exception assumes ‘that the officers properly executed the

warrant and searched only those places and for those objects that it was reasonable to

believe were covered by the warrant.’” United States v. Leary, 846 F.2d 592, 607 n.27

(10th Cir. 1988) (quoting Leon, 468 U.S. at 918 n.19)).

2. District Attorney Opat, Chief Brown, and Agent Virden

a. Text messages

The district court in Mr. Banks’s criminal case said that, although Judge Platt’s

orders authorized interception of “wire communications” without specifying “electronic

[text] communications,” Judge Platt “and [the] executing officers both understood . . .

that the authorization included interception of text messages.” Banks, 2014 WL

4261344, at *5. It found that the law enforcement defendants reasonably believed the

orders permitted them to intercept text messages. See id. The court therefore held that

their “interception of the text messages falls within the good-faith exception to the Fourth

Amendment’s exclusionary rule.” Id. at *4-5.

The district court’s determination in Mr. Banks’s criminal case that investigators

acted in good faith regarding the interception and disclosure of text messages precludes

10
him from contesting the law enforcement defendants’ affirmative defense of good faith.8

“[T]he doctrine of issue preclusion prevents a party that has lost the battle over an issue

in one lawsuit from relitigating the same issue in another lawsuit.” In re Corey, 583 F.3d

1249, 1251 (10th Cir. 2009). “Under federal law, issue preclusion attaches . . . when an

issue of fact or law is actually litigated and determined by a valid and final judgment, and

the determination is essential to the judgment.” Id. (quotations omitted and alterations

incorporated)).9 The doctrine is applicable in a civil case to preclude relitigation of an

issue decided in favor of the prosecuting authority in a prior criminal case. Restatement

(Second) of Judgments § 85(2)(a) (1982).10

Issue preclusion has four elements:

(1) the issue previously decided is identical with the one
presented in the action in question, (2) the prior action has
been finally adjudicated on the merits, (3) the party against
whom the doctrine is invoked was a party, or in privity with a
party, to the prior adjudication, and (4) the party against
whom the doctrine is raised had a full and fair opportunity to
litigate the issue in the prior action.

8
Although none of the defendants argues for the application of issue
preclusion, a court may sua sponte raise a preclusion bar where, as here, the court is
on notice that the issue has been previously decided. See Arizona v. California, 530
U.S. 392, 412 (2000).
9
“Because we are here concerned with the preclusive effect of a federal-court
judgment, federal law applies.” Id.
10
See also id. cmt. e, illus. 7 (“D is convicted of arson of a building. D then
brings an action against I, an insurer which wrote a fire insurance policy on the
building, seeking to recover on the policy. The policy has an exclusion of liability
for losses caused by intentional act of the insured. The determination in the criminal
prosecution that D deliberately set the fire is conclusive in favor of I in the
subsequent civil action.”).
11
Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of Agric., 378 F.3d 1132, 1136 (10th Cir.

2004) (quotations omitted). Here, those elements are met.

First, good faith under the wiretap statutes derives from the good faith exception to

the Fourth Amendment’s exclusionary rule, see Moore, 41 F.3d at 376; Davis, 111 F.3d

at 1484, and turns on the objective reasonableness of investigators’ reliance on Judge

Platt’s wiretap orders to intercept text messages. See Davis, 111 F.3d at 1484.

Second, the district court in Mr. Banks’s criminal case finally adjudicated the good

faith issue when it “refuse[d] to suppress [text messages] on the basis that the orders

authorized interception of wire communications only.” Banks, 2014 WL 4261344, at *5.

See Restatement (Second) of Judgments § 13 (1982) (stating that “for purposes of issue

preclusion (as distinguished from merger and bar), ‘final judgment’ includes any prior

adjudication of an issue in another action that is determined to be sufficiently firm to be

accorded conclusive effect”).

Third, Mr. Banks was a party-defendant to the motion-to-suppress litigation that

led to the determination of good faith.

Fourth, Mr. Banks had a full and fair opportunity to litigate good faith. He

participated in the suppression proceedings, which included testimony from Agent

Virden, and the good faith issue was squarely presented to the district court. See Burrell

v. Armijo, 456 F.3d 1159, 1172 (10th Cir. 2006) (explaining that “the inquiry into

whether a party had a full and fair opportunity to litigate an issue” involves “whether

there were significant procedural limitations in the prior proceeding, whether the party

12
had the incentive to litigate fully the issue, or whether effective litigation was limited by

the nature or relationship of the parties” (quotations omitted)).

Mr. Banks thus cannot relitigate in this civil action whether investigators relied on

Judge Platt’s wiretap orders in good faith when seeking his text messages. See, e.g.,

Guenther v. Holmgreen, 738 F.2d 879, 884 (7th Cir. 1984) (“There can be little doubt

that the issue of Holmgreen’s veracity and good faith—the linchpin of Guenther’s § 1983

Fourth Amendment claim—was both raised and actually litigated in the preliminary

hearing.”); Blinder, Robinson & Co. v. SEC, 565 F. Supp. 74, 77 (D. Colo. 1983)

(collecting cases for the proposition that “[t]he collateral estoppel doctrine has been held

to bar a subsequent civil action challenging the constitutional sufficiency of a Fourth

Amendment search where, in a prior criminal action, the issue of suppression had been

raised by the defendant and decided adversely to him”), aff’d, 748 F.2d 1415 (10th Cir.

1984).

The district court correctly granted the law enforcement defendants’ motions to

dismiss the statutory claims pertaining to text messages.11

b. Extra-territorial communications

In his amended complaint, Mr. Banks alleged that Judge Platt acted beyond his

jurisdiction and that “all defendants knew or had reason to know that the [wiretap] order

they were endorsing was invalid on its face.” ROA, Vol. II at 9. He further alleged that

11
Mr. Banks mistakenly relies on United States v. Medlin, 798 F.2d 407 (10th
Cir. 1986) and United States v. McNulty, 729 F.2d 1243 (10th Cir. 1983), for the
proposition that “good faith reliance” is not a defense. ROA, Vol. II at 9-11. Neither
concerns defenses asserted here.
13
the law enforcement defendants unlawfully intercepted calls while he was in the privacy

of his home and “then used this private information in order to further there [sic] own

personal agenda.” Id. at 10. A Rule 12(b)(6) motion to dismiss “accept[s] all well-pled

factual allegations [in the complaint] as true and view[s] these allegations in the light

most favorable to the nonmoving party.” Peterson v. Grisham, 594 F.3d 723, 727 (10th

Cir. 2010) (quotation and citation omitted). We conclude that Mr. Banks has “plead[ ]

factual content that allows the court to draw the reasonable inference that the [law

enforcement] defendant[s] [are] liable for the misconduct alleged.” Iqbal, 556 U.S. at

678.

Unlike the good faith affirmative defense to the text message claim, collateral

estoppel is not available to the law enforcement defendants on this claim. Judge Platt’s

orders permitted the law enforcement defendants to intercept Mr. Banks’s

communications without a territorial limit. The district court in Mr. Banks’s criminal

case stated that officers “almost certainly” acted in good faith given “the subtle[ ] [and]

technical” nature of the jurisdictional defect, but it excluded the extra-territorial

intercepted evidence, concluding there was no good-faith exception to the statutory

requirement for “suppress[ing] unlawfully intercepted wire and oral communications.”

Banks, 2015 WL 2401048, at *2, *3. Because the court made only an observation about

good faith but not a finding, Mr. Banks is not collaterally estopped from litigating the

issue of good faith regarding his wiretap claims alleging the interception of extra-

territorial communications.

14
 We therefore reverse the dismissal of the extra-territorial wiretapping claims

against the law enforcement defendants.12

3. Sprint

In his amended complaint, Mr. Banks alleged that Sprint disclosed his electronic

communications (text messages) to the other defendants without authorization in the

wiretap order. He further alleged the disclosures included “private text and picture[ ]

messages to family members” sent from “the privacy of [his] home.” ROA, Vol. II at 9.

Viewing these allegations in the light most favorable to Mr. Banks, see Peterson, 594

12
District Attorney Opat argues alternatively that claim preclusion bars all of
Mr. Banks’s claims because he could have asserted them in a prior lawsuit. Opat
Aplee. Br. at 18-19. Specifically, in October 2014, Mr. Banks sued Judge Platt and
District Attorney Opat in federal court for violating his right to counsel in state court
when he was arrested on drug charges. In April 2015, Mr. Banks filed the instant
litigation. In August 2015, he sought to consolidate the two cases. The district court
dismissed Mr. Banks’s right-to-counsel case based on judicial and prosecutorial
immunity, and it denied as moot the request to consolidate. Banks v. Geary Cnty.
Dist. Ct., No. 14-3199-SAC, 2015 WL 12864252, at *2 (D. Kan. Nov. 24, 2015),
aff’d, 645 F. App’x 713 (10th Cir. 2016).
The district court here did not address this claim-preclusion argument. In his
brief, District Attorney Opat provides only a cursory analysis limited to general
statements about the collateral estoppel doctrine. He does not show why it should
apply to the procedural circumstance here, where Mr. Banks moved to consolidate to
include all of his claims in one action before his first case was dismissed. None of
his cited cases addresses this question. We decline to address it as an alternative
ground to affirm because this issue has not been “sufficiently illuminated by counsel
on appeal.” See Walton v. Powell, 821 F.3d 1204, 1212 (10th Cir. 2016). “[W]e
decline to affirm on an alternative ground neither passed on below nor cultivated on
appeal.” Wilson v. Falk, 877 F.3d 1204, 1211-12 (10th Cir. 2017); see Perry v.
Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999) (declining to address an
alternative basis for affirming the district court’s dismissal where appellees did not
adequately develop an argument).
15
F.3d at 727, we conclude he has pled sufficient facts to plausibly show that Sprint “is

liable for the misconduct alleged,” Iqbal, 556 U.S. at 678.

The district court dismissed these claims against Sprint primarily for the same

reason it did so for the law enforcement defendants: “the record establishes [Mr.

Banks’s] wiretap claims are barred by the good faith defense.” ROA, Vol. II at 161.

Although businesses like Sprint may rely on the good faith defense, see 18 U.S.C.

§2520(a); Kan. Stat. Ann. § 22-2518(2), Sprint stands in different shoes than the law

enforcement defendants.

Sprint asserts that Mr. Banks cannot complain of the unauthorized interception of

text messages “in light of the judicially noticed fact that Judge Platt confirmed that his

orders did, in fact, authorize interception and disclosure of text messages and other forms

of communications.” Sprint Aplee. Br. at 19. It argues that the district court in Mr.

Banks’s criminal case “found that Judge Platt and executing officers both understood the

intended scope of the wiretap authorization, and that the authorization included

interception of text messages, and that officers’ reliance on this understanding was

objectively reasonable.” Id. (quotations omitted). Sprint further posits that “if it was

objectively reasonable for the officers to rely on this understanding, it would . . . also be

objectively reasonable for Sprint . . . to rely on the same interpretation.” Id.13

13
Sprint also argues the wiretap claims against it should be dismissed based on
18 U.S.C. § 2511(2)(a)(ii). Under this statute, telecommunication companies that
“provid[e] information, facilities, or assistance in accordance with the terms of a
court order” have an immunity defense. But Mr. Banks’s amended complaint alleges
that the wiretap order Sprint received did not authorize the interception of text
messages. ROA, Vol. II at 9-10. Based on that allegation, § 2511(2)(a)(ii) does not
16
 Sprint’s reliance on judicial notice to preclude Mr. Banks from contesting its good

faith is a misplaced attempt to invoke collateral estoppel. But collateral estoppel requires

that “the issue previously decided [be] identical with the one presented in the action in

question.” Park Lake Res., 378 F.3d at 1136 (emphasis added). Sprint provides no

applicable authority that it can preclude Mr. Banks’s wiretap claims based on the district

court’s determination that investigators acted in good faith. We therefore reverse the

dismissal of Mr. Banks’s statutory wiretap claims against Sprint.

C. Fourth Amendment § 1983 Claims

Mr. Banks argues the Defendants violated his Fourth Amendment rights by

intercepting and disclosing his text messages. He contends the district court

therefore erred in dismissing his § 1983 claim. We disagree.

apply. See Hepting v. AT & T Corp., 439 F. Supp. 2d 974, 1003 (N.D. Cal. 2006)
(denying AT&T’s motion to dismiss where the plaintiffs adequately alleged that
AT&T “did not receive a certification authorizing it[ ]” to conduct electronic
surveillance), remanded on other grounds, 539 F.3d 1157 (9th Cir. 2008).
Sprint does not explain how Judge Platt’s and the law enforcement officials’
understanding that the wiretap order was supposed to include text messages, even
though its terms did not mention texts, would make any difference. Moreover,
consistent with Mr. Banks’s allegations, it appears that Sprint intercepted and
disclosed his text messages pursuant to the March 5, 2013, wiretap order on his
phone before Judge Platt clarified that wiretap orders issued for two of Mr. Banks’s
co-defendants included text messages. See Doc. 379, Exs. 9 & 10, United States v.
Banks, No. 5:13-CR-40060-DDC (D. Kan. July 1, 2014) (Judge Platt’s clarification
orders, entered on April 5, 2013, and April 25, 2013, stating that wiretap orders
entered on April 2 were “clarified to express that the interception of wire
communications previously authorized includes all forms of communication”); see
also Banks, 2014 WL 4261344, at *4 (observing that an affidavit in support of the
April 2 wiretap order for the phone of co-defendant Otis Ponds “contained references
to [earlier intercepted] text messages”).
17
 Legal Background

a. Fourth Amendment

“The gravamen of a Fourth Amendment claim is that the complainant’s legitimate

expectation of privacy has been violated by an illegal search or seizure.” Kimmelman v.

Morrison, 477 U.S. 365, 374 (1986). The Fourth Amendment applies to wiretapping.

See Katz v. United States, 389 U.S. 347, 353 (1967); United States v. Williams, 827 F.3d

1134, 1145 (D.C. Cir. 2016) (noting that “two different legal theories”—the Fourth

Amendment and wiretap statutes—are available to challenge “evidence gathered as a

result of wiretap surveillance”).

b. Qualified immunity defense

Qualified immunity is available to “[i]ndividual defendants named in a § 1983

action” as a shield “from damages actions unless their conduct was unreasonable in light

of clearly established law.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir.

2014) (quotations omitted). “In resolving a motion to dismiss based on qualified

immunity, the court considers (1) whether the facts that a plaintiff has alleged make out a

violation of a constitutional right, and (2) whether the right at issue was clearly

established at the time of defendant’s alleged misconduct.” Keith v. Koerner, 707 F.3d

1185, 1188 (10th Cir. 2013) (quotations omitted). The clearly-established-law prong

requires both “a sufficiently clear foundation in then-existing precedent” and a “clear[ ]

prohibit[ion] [on] the officer’s conduct in the particular circumstances before him.”

District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018). “The doctrine of qualified

immunity is designed to protect public officials who act in good faith, on the basis of

18
objectively reasonable understandings of the law at the time of their actions.” Weigel v.

Broad, 544 F.3d 1143, 1151 (10th Cir. 2008) (quotations omitted and alterations

incorporated).

c. State action requirement

Only persons acting under color of state law may be sued under § 1983. See West

v. Atkins, 487 U.S. 42, 48 (1988). “[I]n rare circumstances[,] . . . a private party [can] be

viewed as a ‘state actor’ for section 1983 purposes.” Harvey v. Harvey, 949 F.2d 1127,

1130 (11th Cir. 1992). “Private individuals and entities may be deemed state actors . . . if

they have acted together with or have obtained significant aid from state officials, or if

their conduct is otherwise chargeable to the state.” Johnson v. Rodrigues, 293 F.3d 1196,

1202 (10th Cir. 2002) (quotations and alterations omitted). But a private party’s mere

compliance with a court order does not constitute state action. See, e.g., Fairley v. PM

Mgmt.-San Antonio AL, L.L.C., 724 F. App’x 343, 345 (5th Cir. 2018) (concluding that a

nursing home’s compliance with probate court’s order was not state action), cert. denied,

139 S. Ct. 815 (2019); Green v. Truman, 459 F. Supp. 342, 345 (D. Mass. 1978) (ruling

that a court order requiring a doctor to supervise a child’s chemotherapy did “not clothe

[the doctor] with the authority of state law necessary to satisfy the state actor

requirement”).

Analysis

a. District Attorney Opat, Chief Brown, and Agent Virden

The law enforcement defendants argued in district court that they are entitled to

qualified immunity on Mr. Banks’s Fourth Amendment § 1983 claim. The district court

19
relied on the clearly-established-law prong of the qualified immunity test and found that

immunity applied because Mr. Banks had identified no authority “holding that the Fourth

Amendment is violated by the specific facts presented here.” ROA, Vol. II at 164-65.

We agree that qualified immunity applies under the second prong. The district

court in Mr. Banks’s criminal case determined that investigators relied in good faith on

Judge Platt’s wiretap orders in intercepting his text messages. “[R]easonable person[s] in

[their] position would not know that [their] actions violated the Fourth Amendment for

the same reasons [that] establish the good faith defense to liability under [18 U.S.C. §

2520].” Frierson v. Goetz, 99 F. App’x. 649, 654 (6th Cir. 2004). Where, as here, “the

requisites of the statutory good faith defense are met, then the standard for qualified

immunity as a defense to Fourth Amendment violations is also satisfied.” Kilgore v.

Mitchell, 623 F.2d 631, 633 (9th Cir. 1980) (footnote omitted); see also 18 U.S.C.

2520(d) (providing that good-faith reliance “is a complete defense against any civil or

criminal action brought under this chapter or any other law” (emphasis added)). The

district court correctly dismissed Mr. Banks’s Fourth Amendment claims against the law

enforcement defendants.

Sprint

Mr. Banks failed to allege Sprint engaged in state action. He claimed Sprint (1)

received a wiretap order that did not cover text messages, (2) intercepted those messages,

and (3) disclosed them to the other defendants. But the amended complaint did not allege

Sprint participated in procuring the wiretap order, obtained aid from state officials, or

performed acts attributable to the state. Thus, Mr. Banks failed to allege Sprint’s

20
compliance with Judge Platt’s order constitutes state action. The district court correctly

dismissed Mr. Banks’s Fourth Amendment claim against Sprint.

D. Civil Conspiracy14

“Allegations of conspiracy may . . . form the basis of a § 1983 claim.” Tonkovich

v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998). “[T]o recover under a § 1983

conspiracy theory, a plaintiff must plead and prove not only a conspiracy, but also an

actual deprivation of rights; pleading and proof of one without the other will be

insufficient.” Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990). Likewise,

“[a] civil conspiracy is not actionable under Kansas law without commission of some

wrong giving rise to a tortious cause of action independent of conspiracy.” Pepsi-Cola

Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1268 (10th Cir. 2005).

14
The amended complaint does not say whether this claim is predicated on
§ 1983 or Kansas law. The claim fails under both. To the extent Mr. Banks is
attempting to assert a federal common-law conspiracy claim, courts generally
construe such claims as § 1983 conspiracy claims, and we do the same. See Burdett
v. Reynoso, No. C-06-00720 JCS, 2007 WL 2429426, at *29 (N.D. Cal. Aug. 23,
2007) (finding common law conspiracy claim properly construed as § 1983 claim and
collecting authority recognizing a § 1983 conspiracy claim), aff'd, 399 F. App’x 276
(9th Cir. 2010). Mr. Banks does not appear to be advancing a § 1985(3) conspiracy
claim, which “generally describes a conspiracy of two or more persons for the
purpose of depriving . . . another of equal protection of the laws or equal privileges
and immunities under the laws.” Dixon v. City of Lawton, 898 F.2d 1443, 1447 (10th
Cir. 1990).
21
 Mr. Banks alleged that District Attorney Opat and Agent Virden “knowingly

conspired with one another to commit the substantive count in th[e] complaint,”

ROA, Vol. II at 12, and that they knew or should have known the wiretap orders were

unlawful. The district court determined that Mr. Banks’s conspiracy claim failed

because there was neither an underlying unlawful act nor sufficiently pled facts of a

conspiracy. We agree with the latter determination.

An actionable conspiracy “requires at least a combination of two or more persons

acting in concert and an allegation of a meeting of the minds, an agreement among the

defendants, or a general conspiratorial objective.” Brooks v. Gaenzle, 614 F.3d 1213,

1227-28 (10th Cir. 2010); see also Stoldt v. City of Toronto, 678 P.2d 153, 161 (Kan.

1984) (stating elements of a civil conspiracy as: “(1) two or more persons; (2) an object

to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one

or more unlawful overt acts; and (5) damages as the proximate result thereof” (quotations

omitted)).

“[A] plaintiff must allege specific facts showing an agreement and concerted

action amongst the defendants” because “conclusory allegations of conspiracy are

insufficient to state a valid § 1983 claim.” Brooks, 614 F.3d at 1228 (quotations omitted

and alterations incorporated). Mr. Banks’s allegation of a conspiracy is conclusory. It

identifies no agreement between District Attorney Opat and Agent Virden to work

together to achieve an unlawful objective. See, e.g., Vieux v. E. Bay Reg’l Park Dist.,

906 F.2d 1330, 1343 (9th Cir. 1990) (observing that “[a] civil conspiracy is a

combination of two or more persons who, by some concerted action, intend to

22
accomplish some unlawful objective for the purpose of harming another which results in

damage,” and concluding that there was no evidence of an illegal objective despite

correspondence and discussions between the defendants).

The district court appropriately dismissed Mr. Banks’s civil conspiracy claim.

III. CONCLUSION

We affirm the district court’s judgment in part, but we reverse and remand for

further proceedings on Mr. Banks’s statutory wiretap claims about the law

enforcement defendants’ interception and disclosure of extra-territorial

communications and Sprint’s interception and disclosure of text messages. Also, we

deny Mr. Banks’s request for the assistance of appellate counsel, and we remind him

to continue making partial payments until the entire filing fee has been paid.15

Entered for the Court

Scott M. Matheson, Jr.
Circuit Judge

15
To the extent Mr. Banks appeals the district court’s order denying his Rule
59(e) motion, we affirm because the court did not abuse its discretion.
23