McCoy (ID 76894) v. Kansas Department of Corrections et al
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.,
CASE NO. 17-3014-SAC-DJW
KANSAS DEPARTMENT OF
CORRECTIONS, et al.,
MEMORANDUM AND ORDER
Plaintiff, a state prisoner appearing pro se and in forma
U.S.C. § 1983.
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.
resulting from a four (4) day delay in receiving mail from his
I. Statutory Screening of Prisoner Complaints
prisoners seeking relief against a governmental entity or an
officer or employee of such entity to determine whether summary
dismissal is appropriate.
28 U.S.C. § 1915A(a).
with any litigant, such as Plaintiff, who is proceeding in forma
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.
“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.”
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
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
In applying the Twombly standard, the Court must assume
complaint and construe them in the light most favorable to the
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
(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).
Plaintiff claims the violation of his constitutional rights
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”).
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
Defendant Peavler processed the numbers while Plaintiff was in
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.
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
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
On November 18, 2016, Plaintiff submitted a grievance.
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
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.
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
The Fed Ex shipment was not given to Plaintiff until
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
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.
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.
further finds that it cannot properly complete the screening of
Plaintiff’s complaint without additional information.
A. Interference with Legal Mail
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
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.
Burnett, 437 F. App’x
The court found that because the plaintiff had not
alleged any resulting injury, he had not stated an actionable
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
“[a]ttorney-client communications have a special status in our
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).
Howell v. Trammell,
As a result, to state a
interference with communication with his attorney.
He must show
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.
there is an argument that prejudice may be established in some
instances by the “chilling effect” of the violation itself (see
Mr. McCoy was not completely deprived of the ability to speak to
As he acknowledges in his complaint, Plaintiff had an
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
in no First Amendment violation where phone calls to attorney
Mr. McCoy also claims his Fourteenth Amendment rights were
violated by the recording of his calls to Attorney Pratt.
he does not specify, presumably he is claiming a due process
The Due Process Clause of the Fourteenth Amendment
liberty, or property, without due process of law.
DiMarco v. Wyoming Dept. of Corrections, 473 F.3d 1334, 1339
(10th Cir. 2007).
“The Supreme Court's interpretation of this
kinds of constitutional protection: procedural due process and
substantive due process.”
McKinney v. Pate, 20 F.3d 1550, 1555
“In its substantive mode, the Fourteenth
Amendment provides protection against arbitrary and oppressive
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
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
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).
contrary, it appears the recordings occurred as a result of an
error in entering Attorney Pratt’s direct dial number.
egregious government action that shocks the conscience that is
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.
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.
consent abrogates any possible claim Plaintiff might make of
unreasonable search or seizure under the Fourth Amendment.
situation in which jail staff monitored attorney-client phone
calls and then used that information against the defendant.
Amendment and therefore the evidence should be suppressed.
monitoring and use of attorney-client phone calls but found no
Fourth Amendment violation because the defendant consented to
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
The First Circuit recognized that the defendant may have a
consents to monitoring.
Id. at 103.
The Sixth Amendment guarantees a criminal defendant
the right to the assistance of counsel for his defense.
necessarily violate the Sixth Amendment.
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.
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
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
monitoring of his telephone calls to his attorney, plaintiff
must show that monitoring prejudiced his defense of the criminal
charges against him.”
Horacek v. Seaman, No. 08-10866, 2009 WL
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
possibility that he was injured by the recordings and thus no
claim for violation of his Sixth Amendment rights.
Plaintiff has failed to state an actionable claim that his
constitutional rights have been violated by the recording of his
calls with Attorney Pratt.
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,
limited information to which Plaintiff has access and included
in his complaint, it appears this has not occurred.
the Court finds that the proper processing of Plaintiff’s claim
related to the failure to destroy the improperly recorded calls
appropriate officials of the Lansing and El Dorado Correctional
See Martinez v. Aaron, 570 F.2d 317 (10th
Accordingly, the Court orders the appropriate officials
of LCF and EDCF to prepare and file a Martinez report.
report and Defendants’ answers have been received, the Court can
properly screen this claim under 28 U.S.C. § 1915.
D. Improper Defendants
Amendment immunity and is not a “person” subject to suit under §
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,
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.
While a private entity may become a
state actor in certain circumstances, for instance where the
courts have generally found that prison phone providers are not
See Belton v. SecurusTech.net, No. 13-CV-4850,
“The provision of a phone service with contractually
required recording capabilities to a government facility is not
a ‘traditionally or exclusive public function.’”
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).
Court’s order below dismissing several defendants and ordering
defendants, Plaintiff’s motion is denied as moot.
For the reasons stated herein, Count II of the complaint
courts resulting from the delay in receiving legal mail should
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
should be dismissed from this action.
IT IS THEREFORE ORDERED:
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 to his attorney is
dismissed for failure to state a claim upon which relief can be
Defendants Sapien, Dorsey, Peavler, Kansas Department
of Corrections, and Century Link are dismissed from this action.
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.
The Martinez report required herein shall be filed no
later than thirty (30) days from the date of this order, and
following receipt of that report by counsel for Defendants or as
set forth in the waiver of service, whichever is later.
Officials responsible for the operation of the Lansing
Correctional Facility and El Dorado Correctional Facility are
directed to undertake a review of the subject matter of the
To ascertain the facts and circumstances;
To consider whether any action can and should be
taken by the institution to resolve the subject matter of
the complaint; and
whether pending in this Court or elsewhere, are related to
this complaint and should be considered together.
Upon completion of the review, a written report shall
defendants’ answers or responses to the complaint.
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.
facts, including the plaintiff.
No answer or motion addressed to the complaint shall
be filed until the
report required herein has been
responses to the complaint and the report ordered herein.
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
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.
This 11th day of August, 2017, at Topeka, Kansas.
s/_Sam A. Crow____________
SAM A. CROW
U.S. Senior District Judge
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