McCoy (ID 76894) v. Kansas Department of Corrections et al

Filing 10

MEMORANDUM AND ORDER ENTERED: Count II of Plaintiff's complaint is dismissed for failure to state a claim upon which relief can be granted. Plaintiff's claim that his constitutional rights were violated by the recording of certain calls t o his attorney is dismissed for failure to state a claim upon upon which relief can be granted. Defendants Sapien, Dorsey, Peavler, Kansas Department of Corrections and Century Link are dismissed from this action. The Clerk of the Court shall prepa re waiver of service forms for the remaining defendants. The Clerk of the Court shall enter the Kansas Department of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez report. Plaintiff's Motion for Issuance of Summons and Waiver of Service Upon Defendants 9 is denied as moot. Signed by U.S. Senior District Judge Sam A. Crow on 08/11/17. Mailed to pro se party DeRon McCoy, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERON MCCOY, JR.,
Plaintiff,
v.

CASE NO. 17-3014-SAC-DJW

KANSAS DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff, a state prisoner appearing pro se and in forma
pauperis,

filed

U.S.C. § 1983.

this

civil

rights

complaint

pursuant

to

42

Mr. McCoy alleges that his First and Fourteenth

Amendment rights were violated when telephone calls he made to
his attorneys were recorded over a five (5) month period.
further

alleges

a

violation

of

his

constitutional

He

rights

resulting from a four (4) day delay in receiving mail from his
attorneys.
I. Statutory Screening of Prisoner Complaints
The

Court

is

required

to

screen

complaints

brought

by

prisoners seeking relief against a governmental entity or an
officer or employee of such entity to determine whether summary
1

dismissal is appropriate.

28 U.S.C. § 1915A(a).

Additionally,

with any litigant, such as Plaintiff, who is proceeding in forma
pauperis,

the

Court

has

a

duty

determine

its

sufficiency.

28

to

screen

U.S.C.

§

the

complaint

1915(e)(2).

to

Upon

completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.

28 U.S.C. § 1915A(b); 28 U.S.C.

§ 1915(e)(2)(B).
“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”

West v.

Atkins, 487 U.S. 42, 48 (1988)(citations omitted).
To survive the required screening, the plaintiff must plead
enough facts “to raise a right to relief above the speculative
level” and “to state a claim to relief that is plausible on its
face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007).

In applying the Twombly standard, the Court must assume

the

truth

of

all

well-pleaded

factual

allegations

in

the

complaint and construe them in the light most favorable to the
plaintiff.

See Leverington v. City of Colo. Springs, 643 F.3d

719, 723 (10th Cir. 2011).

While a pro se plaintiff’s complaint

must be liberally construed, Erickson v. Pardus, 551 U.S. 89, 94
2

(2007), pro se status does not relieve the plaintiff of “the
burden of alleging sufficient facts on which a recognized legal
claim could be based.”

Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991).
II. Complaint
Plaintiff claims the violation of his constitutional rights
resulting

from

two

allegedly

wrongful

occurrences.

First,

Plaintiff alleges that phone calls with one of his attorneys
were recorded starting in March, 2016, while he was housed at
Lansing Correctional Facility (“LCF”) and continuing after his
transfer to El Dorado Correctional Facility (“EDCF”).

According

to Plaintiff, he provided his Unit Team Counselor at LCF, S.
Peavler, with the necessary documentation to get two telephone
numbers approved as belonging to his attorneys.

One was the

main number for the law firm, and the other was the direct dial
number

for

one

of

Plaintiff’s

four

attorneys

at

that

firm.

Defendant Peavler processed the numbers while Plaintiff was in
her office.
Plaintiff did not need to call his attorneys until after he
was transferred to EDCF in June, 2016.

Upon making calls, he

began to notice that when he called the main number, a recording
stated that the call was privileged and would not be recorded,
but when he called the direct number for Attorney Alexandra
Pratt, a recording stated that the call would be recorded.
3

On or about November 1, 2016, Plaintiff submitted an inmate
request form to Unit Team Counselor K. Schidler requesting that
the calls to Attorney Pratt no longer be recorded and that the
recordings

of

telephone

data

his

calls

storage.

with

Ms.

Plaintiff

Pratt

be

received

deleted
a

from

response

the
from

Defendant Schidler stating that “it had been taken care of.”
Mr. McCoy then called Ms. Pratt to verify that the problem had
been fixed, but the recording still said that the call would be
recorded.
On November 18, 2016, Plaintiff submitted a grievance.

On

or about November 20, Unit Team Member R. Randolph asked to see
documentation that Ms. Pratt was Plaintiff’s attorney of record.
UTM Randolph said that Plaintiff had not previously provided the
documentation and that was why the calls with Ms. Pratt had been
recorded.

Mr. McCoy gave UTM Randolph the documentation while

telling him that he had already given it to Defendant Peavler.
UTM Randolph contacted Defendant Century Link, and the recording
apparently stopped as of November 21, 2016.
has

not

received

any

assurance

that

the

However, Plaintiff
previously

recorded

privileged calls have been deleted.
In Count II of the complaint, Plaintiff states that his
attorneys sent him documents by Federal Express marked “Attorney
Client Communications,” which were received at EDCF on November
14, 2016.

The Fed Ex shipment was not given to Plaintiff until
4

November

18,

2016.

When

Plaintiff

asked

Defendant

Schidler

about the delay, he said the shipment had “just got here.”
In response to a grievance, Defendant Sapien stated that
all Fed Ex shipments are received at the EDCF warehouse and only
delivered to the property area for subsequent distribution on
Fridays.

In Plaintiff’s case, his Fed Ex parcel was received at

the warehouse on Monday, November 14, and delivered to him on
Friday, November 18.

The grievance response recommends that

Plaintiff inform his attorneys to send items by regular U.S.
Mail to avoid delay.
III. Discussion
After reviewing Plaintiff’s complaint with the standards
set out above in mind, the Court finds that certain claims and
defendants should be dismissed from this action.

The

Court

further finds that it cannot properly complete the screening of
Plaintiff’s complaint without additional information.
A. Interference with Legal Mail
Plaintiff’s

claim

for

unconstitutional

interference

with

his legal mail should be dismissed for failure to state a claim
on which relief can be granted.

“To state a claim for violation

of the constitutional right to access the courts, a prisoner
‘must demonstrate actual injury ... — that is, that the prisoner
was

frustrated

nonfrivolous

or

legal

impeded
claim

in

his

concerning
5

efforts
his

to

pursue

conviction

or

a
his

conditions of confinement.’”

Burnett v. Jones, 437 F. App'x

736, 744 (10th Cir. 2011), quoting Gee v. Pacheco, 627 F.3d
1178, 1191 (10th Cir. 2010).

In Burnett, the plaintiff alleged

that on one occasion his incoming legal mail was delayed for
two-and-a-half days for no valid reason.
at 744.

Burnett, 437 F. App’x

The court found that because the plaintiff had not

alleged any resulting injury, he had not stated an actionable
claim.

Id.

Likewise,

Mr.

McCoy

does

not

allege

that

Defendants' actions or procedures impeded his ability to pursue
a nonfrivolous legal claim.

A four day delay in receiving his

legal mail without any actual prejudice does not rise to the
level of a constitutional violation.

Since Defendants Sapien

and Dorsey are named only in conjunction with this claim, they
should be dismissed from this action.
B. Recording of Attorney Calls
The Court further finds that Plaintiff’s claim related to
the recording of some of his attorney-client phone calls also
fails

to

state

a

claim

under

§

1983.

It

is

true

that

“[a]ttorney-client communications have a special status in our
legal system.”
403 (1998).

Swidler & Berlin v. United States, 524 U.S. 399,

However, the attorney-client privilege is merely a

rule of evidence; the Tenth Circuit has said that it has not yet
been found to be a constitutional right.
728 F.3d 1202, 1222 (10th Cir. 2013).
6

Howell v. Trammell,

As a result, to state a

claim

under

§

1983,

Plaintiff

must

show

more

interference with communication with his attorney.
that

one

of

his

established

constitutional

than

an

He must show

rights

has

been

violated by that interference.
Mr. McCoy alleges his First Amendment rights were violated
by the recording.

As stated above, a plaintiff claiming the

violation of his right of access to the courts under the First
Amendment must show actual prejudice to his ability to pursue a
nonfrivolous legal action.

See Gee, 627 F.3d at 1191.

While

there is an argument that prejudice may be established in some
instances by the “chilling effect” of the violation itself (see
Muhammad

v.

Plaintiff’s

Pitcher,

35

allegations

do

F.3d

1081,

not

1084

support

(6th

such

a

Cir.

1994)),

finding

here.

Mr. McCoy was not completely deprived of the ability to speak to
his

attorney

recorded.

freely

and

openly

without

being

monitored

or

As he acknowledges in his complaint, Plaintiff had an

alternative
confidential:

means

of

speaking

with

Ms.

Pratt

that

was

all he had to do was call the firm’s main number

and ask to speak with her.
were not recorded.

His calls to the firm’s main number

Plaintiff’s allegations do not demonstrate a

violation of his First Amendment rights.

Cf. Andersen v. Cty.

of Becker, No. CIV 08-5687 ADM RLE, 2009 WL 3164769, at *10 (D.
Minn. Sept. 28, 2009) (finding the ability to freely and openly
communicate with attorney through the mail or in person results
7

in no First Amendment violation where phone calls to attorney
were recorded).
Mr. McCoy also claims his Fourteenth Amendment rights were
violated by the recording of his calls to Attorney Pratt.

While

he does not specify, presumably he is claiming a due process
violation.
provides

The Due Process Clause of the Fourteenth Amendment

that

no

state

shall

deprive

any

person

liberty, or property, without due process of law.

of

life,

Estate of

DiMarco v. Wyoming Dept. of Corrections, 473 F.3d 1334, 1339
(10th Cir. 2007).
clause

“The Supreme Court's interpretation of this

explicates

that

the

amendment

provides

two

different

kinds of constitutional protection: procedural due process and
substantive due process.”
(11th Cir.

1994).

McKinney v. Pate, 20 F.3d 1550, 1555

“In its substantive mode, the Fourteenth

Amendment provides protection against arbitrary and oppressive
government

action,

even

governmental objective.”

when

taken

to

further

a

legitimate

Seegmiller v. LaVerkin City, 528 F.3d

762, 767 (10th Cir. 2008).

One strand of the substantive due

process doctrine “protects an individual's fundamental liberty
interest,

while

the

other

protects

against

the

exercise

governmental power that shocks the conscience.” Id.
Conduct that shocks the . . . conscience ... is
deliberate government action that is arbitrary and
unrestrained by the established principles of private
right and distributive justice. This strand of
substantive due process is concerned with preventing
8

of

government officials from abusing their power, or
employing it as an instrument of oppression. Not all
government conduct is covered however, as only the
most egregious official conduct can be said to be
arbitrary in the constitutional sense.
Id. (internal citations omitted).
Plaintiff
attorney-client

does

not

allege

relationship

that

here

the

was

intrusion

deliberate.

into

the

On

the

contrary, it appears the recordings occurred as a result of an
error in entering Attorney Pratt’s direct dial number.
McCoy's

allegations

do

not

show

the

kind

of

Mr.

intentional,

egregious government action that shocks the conscience that is
required

to

state

a

claim

for

violation

of

substantive

due

process rights.
Further, when a prison clearly informs an inmate that a
phone call will be recorded, the subsequent use of the phone by
that inmate implies consent to the call being monitored.

See

United States v. Gotti, 42 F. Supp. 2d 252, 284 (S.D.N.Y. 1999).
Mr. McCoy was notified at the beginning of each call to Attorney
Pratt’s direct dial line that the call was being recorded.

This

consent abrogates any possible claim Plaintiff might make of
unreasonable search or seizure under the Fourth Amendment.
In
2008),

United
Justice

States

v.

O'Connor,

Novak,

531

sitting

by

F.3d

99,

101

designation,

(1st

Cir.

addressed

a

situation in which jail staff monitored attorney-client phone
calls and then used that information against the defendant.
9

The

defendant

argued

that

the

monitoring

violated

the

Fourth

Amendment and therefore the evidence should be suppressed.

Id.

Justice

the

O'Connor

wrote

that

the

court

was

troubled

by

monitoring and use of attorney-client phone calls but found no
Fourth Amendment violation because the defendant consented to
the monitoring.

Id. at 102.

The court based its finding of

consent in part on an automated message played at the beginning
of every call warning the prisoner that the call is subject to
monitoring and recording.

Id. at 100.

As in this case, there

was a process through which a prisoner could have an attorney
number

exempted,

plaintiff’s
Id.

but

calls

to

because
his

of

attorney

a

mechanical

were

error,

mistakenly

the

monitored.

The First Circuit recognized that the defendant may have a

protected
calls,

interest

but

such

in

an

McCoy

Amendment.

also

privacy

interest

consents to monitoring.
Mr.

the

does

of
not

attorney-client

phone

exist

when

one

party

under

the

Sixth

Id. at 103.

does

not

state

a

claim

The Sixth Amendment guarantees a criminal defendant

the right to the assistance of counsel for his defense.
Const.

Amend.

prisoner's

VI.

phone

The
calls

recording,
with

his

or

even

defense

necessarily violate the Sixth Amendment.

monitoring,
counsel

does

U.S.
of

a

not

Fleury v. Collins, No.

10-CV-01361-LTB-KLM, 2011 WL 1706835, at *4 (D. Colo. Apr. 14,
2011), citing Mann v. Reynolds, 46 F.3d 1055, 1060 (10th Cir.
10

1995) (“[T]he Sixth Amendment does not require in all instances
full and unfettered contact between an inmate and counsel.”).
Without “at least a realistic possibility of injury to [the
defendant]

or

benefit

Amendment violation.”
(1977).

to

the

State,

there

can

be

no

Sixth

Weatherford v. Bursey 429 U.S. 545, 558

See also Rodriguez v. Zavaras, 42 F.Supp.2d 1059, 1086

(D. Colo. 1999) (“[T]he clear weight of authority, including
Weatherford, holds that a showing of prejudice is required in
order to prevail on a claim under the Sixth Amendment for state
interference with counsel, so long as the petitioner has not
shown an improper motive by law enforcement officials.”). “[T]o
establish

a

Sixth

Amendment

violation

by

defendants'

alleged

monitoring of his telephone calls to his attorney, plaintiff
must show that monitoring prejudiced his defense of the criminal
charges against him.”
2928546,

at

*10

Horacek v. Seaman, No. 08-10866, 2009 WL

(E.D.

Mich.

Sept.

10,

2009)

(unreported

decision).
Mr. McCoy does not contend that the recorded calls he made
to Attorney Pratt were even monitored, let alone that there was
some harm to his defense or benefit to the prosecution from the
recorded

calls.

Plaintiff's

allegations

state

no

plausible

possibility that he was injured by the recordings and thus no
claim for violation of his Sixth Amendment rights.

11

Plaintiff has failed to state an actionable claim that his
constitutional rights have been violated by the recording of his
calls with Attorney Pratt.
dismissed.

Consequently, this claim should be

Since the only allegations about Defendant Peavler

relate to this claim, she should be dismissed from this action.
C. Failure to Destroy Recordings
While Plaintiff does not state a claim under § 1983 for the
initial recording of the calls, the Court finds that Plaintiff’s
claim that the recordings of his calls with Attorney Pratt have
not been destroyed is more problematic.

Once Defendants were

put on notice that they had recorded privileged conversations,
they

should

have

destroyed

those

recordings.

Based

on

the

limited information to which Plaintiff has access and included
in his complaint, it appears this has not occurred.

Therefore,

the Court finds that the proper processing of Plaintiff’s claim
related to the failure to destroy the improperly recorded calls
cannot

be

achieved

without

additional

information

from

appropriate officials of the Lansing and El Dorado Correctional
Facilities.
1978).

See Martinez v. Aaron, 570 F.2d 317 (10th

Cir.

Accordingly, the Court orders the appropriate officials

of LCF and EDCF to prepare and file a Martinez report.

Once the

report and Defendants’ answers have been received, the Court can
properly screen this claim under 28 U.S.C. § 1915.

12

D. Improper Defendants
The
proper

Kansas

party

Department

as

it

is

a

of

Corrections

state

agency

(“KDOC”)

entitled

is

to

not

a

Eleventh

Amendment immunity and is not a “person” subject to suit under §
1983.

See Blackburn v. Dep't of Corr., 172 F.3d 62, *1 (Table)

(10th Cir. 1999) (unpublished); citing Buchwald v. University of
New Mexico School of Medicine, 159 F.3d 487, 494 n. 3 (10th Cir.
1998); and Will v. Michigan Dep't of State Police, 491 U.S. 58,
70-71 (1989).
action.

As a result, KDOC should be dismissed from this

However, it is an interested party for the purpose of

preparing the Martinez report ordered herein.
In addition, upon the record before the Court, it appears
Century Link is also not a proper party.

Section 1983 applies

only to the violation of civil rights by state actors.
Rendell-Baker v. Kohn, 457 U.S. 830, 837-838 (1982).
Link is a private entity.

See

Century

While a private entity may become a

state actor in certain circumstances, for instance where the
private

entity

is

providing

a

traditionally

public

function,

courts have generally found that prison phone providers are not
state actors.
2014

WL

cases).

See Belton v. SecurusTech.net, No. 13-CV-4850,

524470,

at

*6

(E.D.N.Y.

Feb.

7,

2014)

(collecting

“The provision of a phone service with contractually

required recording capabilities to a government facility is not
a ‘traditionally or exclusive public function.’”
13

Hernandez v.

Securus Technologies, Inc., No. CV 16-12402-RGS, 2017 WL 826915,
at *3 (D. Mass. Mar. 2, 2017), citing Evans v. Skolnik, 2009 WL
3763041, at *4-5, *5 n.4 (D. Nev. Nov. 5, 2009), aff'd, 637 F.
App’x 285, 287 (9th Cir. 2015).

Plaintiff pleads no facts that

establish Century Link as a state actor for purposes of § 1983.
Therefore, Century Link should be dismissed from this action.
IV. Motion for Issuance of Summons
Plaintiff has also filed a Motion for Issuance of Summons
and Waiver of Service upon Defendants (Doc. #9).

Given the

Court’s order below dismissing several defendants and ordering
the

issuance

of

waiver

of

service

forms

to

the

remaining

defendants, Plaintiff’s motion is denied as moot.
V. Summary
For the reasons stated herein, Count II of the complaint
alleging

a

violation

of

Plaintiff’s

right

of

access

to

the

courts resulting from the delay in receiving legal mail should
be

dismissed

for

failure

to

state

a

claim.

In

addition,

Plaintiff’s claim that his constitutional rights were violated
by the recording of certain calls to his attorney should also be
dismissed for failure to state a claim.

However, the Court

needs additional information to screen Plaintiff’s claim that
the failure to destroy the recordings of privileged calls to his
attorney

violates

his

constitutional

14

rights.

Finally,

Defendants

Sapien,

Dorsey,

Peavler,

KDOC,

and

Century

is

dismissed

Link

should be dismissed from this action.
IT IS THEREFORE ORDERED:
(1)

Count

II

of

Plaintiff’s

complaint

for

failure to state a claim upon which relief can be granted.
(2)

Plaintiff’s claim that his constitutional rights were

violated by the recording of certain calls to his attorney is
dismissed for failure to state a claim upon which relief can be
granted.
(3)

Defendants Sapien, Dorsey, Peavler, Kansas Department

of Corrections, and Century Link are dismissed from this action.
(4)

The Clerk of the Court shall prepare waiver of service

forms for the remaining defendants, pursuant to Rule 4(d) of the
Federal Rules of Civil Procedure, to be served at no cost to
Plaintiff absent a finding by the Court that Plaintiff is able
to pay such costs.
(5)

The Martinez report required herein shall be filed no

later than thirty (30) days from the date of this order, and
Defendants’

answers

shall

be

filed

within

twenty

(20)

days

following receipt of that report by counsel for Defendants or as
set forth in the waiver of service, whichever is later.
(6)

Officials responsible for the operation of the Lansing

Correctional Facility and El Dorado Correctional Facility are

15

directed to undertake a review of the subject matter of the
complaint:
a.

To ascertain the facts and circumstances;

b.

To consider whether any action can and should be

taken by the institution to resolve the subject matter of
the complaint; and
c.

To

determine

whether

other

like

complaints,

whether pending in this Court or elsewhere, are related to
this complaint and should be considered together.
(7)
be

Upon completion of the review, a written report shall

compiled

which

shall

be

attached

to

and

filed

with

the

defendants’ answers or responses to the complaint.

Statements

of

Copies

all

witnesses

shall

be

in

affidavit

form.

of

pertinent rules, regulations, official documents, and, wherever
appropriate, the reports of medical or psychiatric examinations
shall be included in the written report.

Any recordings of the

incident underlying Plaintiff’s claims shall also be included.
(8)

Authorization

is

granted

Lansing

Correctional

Facility

Facility

to

all

interview

and

to

witnesses

the
El

officials

Dorado

having

of

the

Correctional

knowledge

of

the

facts, including the plaintiff.
(9)

No answer or motion addressed to the complaint shall

be filed until the

Martinez

report required herein has been

prepared.
16

(10) Discovery
Plaintiff

has

by

received

Plaintiff
and

shall

reviewed

not

commence

Defendants’

until

answers

responses to the complaint and the report ordered herein.

or

This

action is exempted from the requirements imposed under Fed. R.
Civ. P. 26(a) and 26(f).
IT IS FURTHER ORDERED that the Clerk of the Court shall
enter

the

Kansas

Department

of

Corrections

as

an

interested

party on the docket for the limited purpose of preparing the
Martinez report ordered herein.

Upon the filing of the report,

KDOC may move for termination from this action.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Issuance
of Summons and Waiver of Service upon Defendants (Doc. #9) is
denied as moot given the remainder of this Order.

Copies of this order shall be transmitted to Plaintiff, to
Defendants, and to the Attorney General for the State of Kansas.

IT IS SO ORDERED.
DATED:

This 11th day of August, 2017, at Topeka, Kansas.

s/_Sam A. Crow____________
SAM A. CROW
U.S. Senior District Judge

17