Miller v. Schmidt et al
Filing
89
ORDER Denying 84 Motion for Reconsideration. (CC: DQA) (Jan, Chambers Staff)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RICHARD I. MILLER,
Plaintiff,
vs.
Commissioner RONALD TAYLOR,
Director GARLAND ARMSTRONG
(ret.), Superintendent ROBERT
HIBPSHMAN, Asst. Superintendent
SHANNON MCCLOUD, & Security
Sgt. DAVID CLEVELAND, individually
and in their capacities as employees
of the Department of Corrections
Case No. 3:14-cv-61 RRB
ORDER ON RECONSIDERATION
(Docket 84)
Defendants.
Richard Miller, representing himself, has filed a Prisoner’s Civil Rights Complaint
under 42 U.S.C. § 1983. Docket 1-1. The Assistant Attorney General, representing all
Defendants, filed a Motion for Summary Judgment. Docket 67. The Court reviewed the
Motion, as well as Miller’s Response and the Defendants’ Reply, and GRANTED the
MOTION IN PART. Docket 82. The Court dismissed all Defendants, with the exception
of Sgt. David Cleveland, and also dismissed Counts 1, 2, and 3. Id. The Court now
considers Defendant Cleveland’s Motion for Reconsideration. Docket 84.
The facts in this matter are generally undisputed. Defendant was an inmate at
Wildwood Pre-trial Facility in Kenai, Alaska, in early April 2008. Miller contends that his
constitutional rights were violated when his phone calls with his attorney were recorded
by Sergeant David Cleveland pursuant to Cleveland’s duties as a Correctional Officer.
While notice was provided and Department policy required monitoring inmate phone calls,
it is undisputed that attorney phone calls should not have been monitored or recorded.
Nevertheless, several phone calls between Miller and his attorney were recorded. Docket
67 at 3-5. Sgt. Cleveland states that, once informed of the mistake, he took steps to block
recording of future calls from the attorney’s phone number. Id. at 5.
In his Motion for Reconsideration, Sgt. Cleveland argues that the multiple
attorney/client phone call recordings were inadvertent and Plaintiff has provided no
admissible evidence that anything about these phone recordings should have alerted
Officer Cleveland to the fact that the phone calls with Plaintiff’s attorney were being
recorded. Docket 84 at 3-4. Specifically, he notes that (1) had Plaintiff’s attorney called
from a number listed with the state bar association the prison phone system would have
recognized it and not recorded those calls; (2) each phone call from an unregistered
phone received an automatic prompt that the call may be recorded; and (3) signs posted
above the telephones at the Wildwood facility warn inmates that their phone calls may be
monitored and recorded. Docket 84 at 3. Sgt. Cleveland argues that Plaintiff and his
attorney failed to use the easily available safeguards and both were explicitly warned that
their calls may be monitored. Id. at 4. But the Court observed in its prior order:
Several issues in this case turn on the intent and knowledge of Sgt.
Cleveland, the sole remaining Defendant. Sgt. Cleveland’s affidavit to this
Court indicates that one of his assigned duties at Wildwood was to monitor
inmate phone calls, and that he monitored Plaintiff’s phone calls when he
was housed at the facility. Docket 68 at 2. Pursuant to a search warrant, he
made copies of all of Plaintiff’s phone calls and provided them to the Kenai
Police. Sgt. Cleveland states that he later learned that one or more of the
phone calls recorded had been between Plaintiff and his attorney. Id. at 3.
Sgt. Cleveland states that at the time he made the recordings, he did not
know that any of the phone calls were with counsel, because the attorney’s
3:14-cv-0061-RRB, Miller v. Tayor, et al.
Order Regarding Reconsideration
Page 2 of 4
phone number was not registered in the Department of Corrections’
(DOC’s) system, which would have automatically blocked attorney client
communications from being recorded. Sgt. Cleveland explained that the
DOC phone system records all calls made or received by inmates, except
for those made or received from attorney phone numbers listed with the
Alaska Bar. Id. At Plaintiff’s trial, however, Sgt. Cleveland testified that
Kenai PD had asked the facility to monitor Plaintiff’s phone calls, and
that “the first few days I listened to every one.” Docket 80-8 at 4 (Trial
transcript at 700). Plaintiff’s exhibit at Docket 80-7 suggests that sixteen
phone calls between Plaintiff and his attorney were recorded between
4/4/2008 and 4/9/2008. Sgt. Cleveland’s credibility, knowledge and intent
are relevant to this § 1983 action, and remain genuine issues of material
fact.
Docket 84 at 5-6 (emphasis added).
Only in “rare instances” may credibility “be determined without an evidentiary
hearing.” Earp v. Ornoski, 431 F.3d 1158, 1169-70 (9th Cir. 2005). Although Defendant
argues that he lacked the intent required under the Wiretap Act and relevant Alaska
Statutes, the Court found that Sgt. Cleveland’s credibility and intent create genuine issues
of material fact. While the Defendant may have defenses associated with the automated
system which recorded the calls, these counts cannot be dismissed at this juncture.
Similarly, “qualified immunity is an affirmative defense and . . . the burden of pleading it
rests with the defendant.” Crawford-El v. Britton, 523 U.S. 574, 587 (1998) (internal
quotation and citation omitted). “Where the officers' entitlement to qualified immunity
depends on the resolution of disputed issues of fact in their favor, and against the nonmoving party, summary judgment is not appropriate.” Wilkins v. City of Oakland, 350 F.3d
949, 956 (9th Cir. 2003). Here, it is unclear as to how many phone calls were made during
3:14-cv-0061-RRB, Miller v. Tayor, et al.
Order Regarding Reconsideration
Page 3 of 4
“the first few days” and whether the content of any such calls might clearly reflect that
they were between Plaintiff and his attorney.
For the reasons set forth above, the Court declines to change its prior Order.
Genuine issues of material fact regarding Sgt. Cleveland’s knowledge and intent bar
summary judgment of Counts 4, 5, 6, 7, and 8. Reconsideration is DENIED.
IT IS SO ORDERED this 22nd day of February, 2016.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
3:14-cv-0061-RRB, Miller v. Tayor, et al.
Order Regarding Reconsideration
Page 4 of 4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?