UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 17-2172 ________________

CAROL LEE WALKER, Appellant

v.

SENIOR DEPUTY BRIAN T. COFFEY, in his individual capacity; SPECIAL AGENT PAUL ZIMMERER, in his individual capacity ________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. Civil Action No. 2-17-cv-00040) District Judge: Honorable Mark A. Kearney ________________

Argued on January 8, 2018 Before: JORDAN, ROTH, Circuit Judges and STEARNS ∗, District Judge

(Opinion filed: September 20, 2018)

Geoffrey R. Johnson, Esq. (ARGUED) 1110 Wellington Road Jenkintown, PA 19046

Counsel for Appellant John G. Knorr, III, Esq. (ARGUED) J. Bart DeLone, Esq. Office of Attorney General of Pennsylvania Strawberry Square 15th Floor Harrisburg, PA 17120

Counsel for Appellees

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OPINION ________________

ROTH, Circuit Judge

∗ The Honorable Richard G. Stearns, District Judge of the Massachusetts District Court, sitting by designation

2 Appellant Carol Lee Walker commenced this action under 42 U.S.C. § 1983. She alleges that Appellees—a prosecutor and a special agent employed by the Pennsylvania Office of the Attorney General (OAG)—violated her Fourth Amendment right to be free from an unreasonable search when they used an invalid subpoena to induce Walker’s employer, Pennsylvania State University (Penn State), to produce her work emails. The District Court granted Appellees’ motion to dismiss, concluding that they were entitled to qualified immunity because Walker did not have a clearly established right to privacy in the content of her work emails. For the reasons stated below, we will affirm the dismissal of Walker’s § 1983 claim. We will vacate the District Court’s denial of Walker’s subsequent motion for leave to file a second amended complaint, asserting claims under the Stored Communications Act (SCA), 1 and remand for further proceedings consistent with this opinion.

I.

This case stems from a criminal prosecution brought against Walker by the OAG. In July 2015, the OAG filed criminal charges against Walker in state court, which included numerous counts of forgery and various computer crime offenses. These charges were joined with prior charges that had been filed against Walker’s husband, Ray Allen Walker, Jr., and his trucking company. Appellee Brian Coffey, a senior deputy attorney general, was the prosecutor assigned to the case, and Appellee Paul Zimmerer, an OAG 1 18 U.S.C. § 2701 et seq. Throughout her filings, Walker sometimes erroneously refers to the SCA as the “Secured” Communications Act.

3 special agent, served as the lead investigator. Following a preliminary hearing in August 2015, some of the charges against Walker were dismissed, but four counts of conspiracy to commit forgery remained pending.

In October 2015, before her trial had been scheduled, Coffey and Zimmerer sought to obtain Walker’s work emails from her employer, Penn State, as part of their investigation. Coffey and Zimmerer initially asked Penn State to produce Walker’s work emails voluntarily, but Penn State officials requested formal documentation, saying, “We just need something formal, a subpoena.” 2 Coffey and Zimmerer then obtained a blank subpoena form from the Centre County Court of Common Pleas, which they filled out in part. The subpoena includes the case caption, is addressed to “John Corro, PSU General Counsel & Senior Security / Systems Analyst,” and requests produ