Hamby v. McCullough et al
MEMORANDUM OPINION. Signed by District Judge Aleta A. Trauger on 1/10/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
WILLIAM DAVIDSON HAMBY, JR.,
SHERIFF DARON HALL,
Case No. 3:12-cv-01239
Plaintiff William Davidson Hamby, Jr. is presently detained at the Davidson County Sheriff’s Office
– Criminal Justice Center. He has filed a complaint under 42 U.S.C. § 1983 against defendants Valerie
McCullough and Sheriff Daron Hall, alleging violations of his constitutional rights. The complaint is before
the court for an initial review pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a).
Factual Allegations in the Complaint
In his complaint, the plaintiff alleges that defendant McCullough has, as a matter of practice and
policy, repeatedly “violated the ‘attorney/client right to privacy/confidentiality” by monitoring his telephone calls
with his attorney. (ECF No. 1, at 2.) More specifically, the plaintiff alleges that the phone that he is permitted
to use to speak with his attorney is directly across from the desk where McCullough sits, and that McCullough
listens to his conversations with his attorney, and sometimes places the call on speaker-phone. The plaintiff
states that there is no sign posted to say that attorney calls are monitored at all times, but he is obviously
aware that they are physically monitored. The plaintiff claims that McCullough’s listening to his private
conversations with his attorney violates his rights and jeopardizes his pending criminal cases. He alleges
that she takes statements by the plaintiff to his attorney out of context, causing him “further damage.” (ECF
No. 1, at 2.) As “proof” that McCullough and other officers listen to his telephone calls with his attorney, the
plaintiff attaches as Exhibit A to his complaint a Jail Incident Report that indicates that McCullough and two
corrections officers overheard the plaintiff tell his attorney, while he was ending a call, “I can’t do too much
time I’ll just kill myself, for real. I’m 42 years old and I can’t do too much time. I cut myself and got about 8
staples the other day.” (ECF No. 1, at 6.) As a result of the officers’ overhearing these statements by the
plaintiff to his attorney, the plaintiff was placed on level two suicide watch. The plaintiff wrote on this
document: “Proof my calls to attorney are listened to by Valerie McCullough (Case Manager) as the only
attorney calls allowed are in front of her, with the speaker phone on also. Proof she spread what I said to
The plaintiff alleges that Sheriff Daron Hall is also liable to him for McCullough’s actions because he
is her boss and because he “ignor[es] her violations,” refuses to allow an internal affairs investigation, and
will not correct the problem, and (ECF No. 1, at 3.)
The plaintiff further alleges: “McCullough also denies me any and all access to law library as well.”
(ECF No. 1, at 4.)
The plaintiff alleges that the defendants’ actions “harm the potential success and/or outcome” of his
criminal cases, and he sues the defendants in both their individual and official capacities. He seeks injunctive
relief as well as compensatory damages.
Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss a civil complaint or any portion of a
complaint filed in forma pauperis that (1) fails to state a claim for which relief can be granted, or (2) is
frivolous. Section 1915A(a) similarly requires initial review of any “complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” The Sixth
Circuit has confirmed that the dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556
U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals for failure to
state a claim under those statutes because the relevant statutory language tracks the language in Rule
12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). Thus, to survive scrutiny on initial review,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view
the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as
true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin,
551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).
Although pro se pleadings are to be held to a less stringent standard than formal pleadings drafted
by lawyers, Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.
1991), the courts’ “duty to be ‘less stringent’ with pro se complaints does not require us to conjure up unpled
allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted).
To state a claim under § 1983, a plaintiff must (1) show the deprivation of a right secured by federal
law or the United States Constitution, and (2) demonstrate that the deprivation was caused by a person
acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part by Daniels v.
Williams, 474 U.S. 327, 330 (1986)); West v. Atkins, 487 U.S. 42, 48 (1988); Russo v. City of Cincinnati, 953
F.2d 1036, 1042 (6th Cir. 1992). Both parts of this test must be satisfied to support a claim under § 1983.
Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991). The plaintiff does not identify what rights he believes
have been violated by McCullough’s monitoring of his telephone calls with his attorney, but the Court
presumes he intends to state a claim under the First Amendment based on the burdening of his
communications with his attorney and/or under the Sixth Amendment for interference with his right to the
effective assistance of counsel.
Under the Sixth Amendment, “inmates must have a reasonable opportunity to seek and receive the
assistance of attorneys,” and “[r]egulations and practices that unjustifiably obstruct the availability of
professional representation or other aspects of the right of access to the courts are invalid.” Procunier v.
Martinez, 416 U.S. 396, 419 (1974). However, to prevail on a § 1983 claim for a violation of the Sixth
Amendment, plaintiff must establish (1) an intrusion into an attorney-client communication and (2) some
prejudice to him. Weatherford v. Bursey, 429 U.S. 545, 558 (1977).
In the plaintiff’s case, he has offered nothing to suggest that the actions complained of have resulted
in prejudice to his right to the effective assistance of counsel such as the disclosure of his defense strategy
to the federal prosecutors involved in his federal criminal proceedings or that it has resulted in any tainted
evidence in those proceedings. See id. (undercover officer’s participation in a meeting between a defendant
and his lawyer did not violate Sixth Amendment because the evidence was not tainted, the defense plan was
not revealed to the prosecution, and the intrusion was not purposeful). Absent some kind of claimed
interference with his relationship with his attorney or prejudice to his defense, the plaintiff fails to state a §
1983 claim for an infringement of his Sixth Amendment right. Cf. Stanley v. Vining, 602 F.3d 767, 770–71
(6th Cir. 2010) (holding that, where there was no contention that the defendant’s questioned actions created
a barrier to the inmate’s relationship with his lawyer, there is no cognizable Sixth Amendment claim for
deprivation of the right to counsel) (citing Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974) for its holding that
“[a]s to the Sixth Amendment, its reach is only to protect the attorney-client relationship from intrusion in the
The next question is whether the plaintiff states a colorable claim under the First Amendment. The
Sixth Circuit has recognized that prison inmates retain the right under the First Amendment to communicate
with family and friends, as well as attorneys, and that “reasonable access” to the telephone is likewise
protected by the First Amendment. See Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994); see id. at
1100 (“[T]here is no legitimate governmental purpose to be attained by not allowing reasonable access to
the telephone, and . . . such use is protected by the First Amendment.” (citation omitted)); see also
Muhammed v. Pitcher, 35 F.3d 1081, 1984–85 (6th Cir. 1994) (recognizing that prisoners’ First Amendment
rights are implicated by regulations governing their receipt of mail generally and legal mail specifically). In
other words, a prison may constitutionally limit the nature and extent of a prisoner’s access to the telephone,
so long as the restrictions are rationally or reasonably related to legitimate penological interests. At this point
it is unclear whether the defendants’ practice or policy of monitoring attorney-client telephone calls is
reasonably related to legitimate penological interests. The Court therefore finds that the plaintiff’s claim under
the First Amendment should not be dismissed at this time.
The Court notes that the plaintiff sues both defendants in their individual and official capacities. The
plaintiff clearly states a claim against defendant McCullough in her individual capacity insofar as the
allegations in the complaint concern actions taken directly by her that the plaintiff claims violated his
constitutional rights. However, insofar as the plaintiff seeks to sue Sheriff Daron Hall in his individual capacity
as well, the claim fails, because the plaintiff fails to show that Sheriff Hall was personally involved in the
alleged monitoring of the plaintiff’s telephone calls with his attorneys. In addition, the fact that Sheriff Hall is
McCullough’s “boss” is not sufficient to impose liability on him. See, e.g., Monell v. New York City Dep’t of
Soc. Servs., 436 U.S. 658, 690 (1978) (holding that respondeat superior liability is not available under §
1983); Lee v. Mich. Parole Bd., 104 F. App’s 490, 493 (6th Cir. 2004) (“Section 1983 liability may not be
imposed simply because a defendant denied an administrative grievance or failed to act based upon
information contained in a grievance.”).
The plaintiff also states that he intends to name Sheriff Hall in his official capacity. Offical-capacity
suits are, for all intents and purposes, treated as suits against the municipality the official represents. Hafer
v. Melo, 502 U.S. 21, 25 (1991). The official-capacity suit against Sheriff Hall is therefore against the
Metropolitan Government of Nashville and Davidson County (“Metro”). The Court finds that the complaint
adequately states a claim against Sheriff Hall in his official capacity based upon allegations that the
monitoring of inmates’ telephone calls with their attorneys is an institution-wide policy, implemented or
instituted by Sheriff Hall as agent for Metro.
Because the court finds that the complaint adequately asserts claims against both defendants based
on the alleged violation of the plaintiff’s constitutional rights, his claims will at this stage be permitted to
proceed. An appropriate order will enter.
Aleta A. Trauger
United States District Judge
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