Prison Phone Justice

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kenneth E. Andersen and Dell D.
Holm, on behalf of themselves and
all others similarly situated,
and
William K. Bulmer, II, on behalf
of himself and all others similarly
situated,
Plaintiffs,
vs.

MEMORANDUM OPINION
AND ORDER
Civil No. 08-5687 ADM/RLE

The County of Becker, Minnesota,
Tim Gordon, in his capacity as Sheriff
of Becker County, and Joseph H.
McArthur, in his capacity as Captain
in the Becker County Sheriff's
Department,
Defendants.
______________________________________________________________________________
Jeffrey A. Abrahamson, Esq., Mara R. Thompson, Esq., and Daniel C. Bryden, Esq., Sprenger &
Lang, PLLC, Minneapolis, MN, appeared for and on behalf of the Plaintiffs.
Susan M. Tindal, Esq., and Jon K. Iverson, Esq., Iverson Reuvers, Bloomington, MN, appeared
for and on behalf of the Defendants.
______________________________________________________________________________
I. INTRODUCTION
On August 14, 2009, the undersigned United States District Judge heard oral argument
on Defendants Becker County, Tim Gordon, and Joseph H. McArthur’s (collectively
“Defendants”) Motion for Summary Judgment [Docket No. 38] and Plaintiffs Kenneth E.
Andersen (“Andersen”), Dell D. Holm (“Holm”), and William K. Bulmer, II’s (“Bulmer”)
(collectively (“Plaintiffs”) Motion for Summary Judgment on Counts VI, VIII, and IX [Docket

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No. 47]. Plaintiffs allege violations of the First, Fourth, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution; Article I, Sections 6, 7, and 10 of the Minnesota
Constitution; 18 U.S.C. §§ 2510-22; Federal Common Law; Minn Stat. § 481.10, subd. 2; Minn
Stat. § 626A.02; Minnesota Common Law; and Misappropriation of Attorney Work Product
under Minnesota Law. 1st Am. Compl. [Docket No. 3] ¶¶ 75-126. For the reasons set forth
below, Defendants’ Motion is granted in part and denied in part, and Plaintiffs’ Motion is denied.
II. BACKGROUND1
On June 14, 2007, a Complaint was filed in Becker County District Court charging
Andersen with second degree murder. Tindal Aff. [Docket No. 45] Ex. D at 1. Andersen was
booked into the Becker County Jail (the “Jail”) on June 19, 2007. Andersen Decl. [Docket No.
57] ¶ 2. He remained in the Jail until June 13, 2008, after which he began serving his sentence in
Rush City, Minnesota. Hodgson Aff. [Docket No. 43] ¶ 6. Holm was booked into the Jail on
May 7, 2008 and remained there until March 30, 2009. Id. ¶ 5. Holm pled guilty to Felony
Assault with a Dangerous Weapon and is currently serving a 36-month sentence. Tindal Aff.
Exs. F, G. Bulmer represented Andersen in his criminal case. Bulmer Decl. [Docket No. 59] ¶
2. Bulmer worked at the Giancola Law Firm, PLLC until January 2008, at which time he left the
firm. Id. ¶ 3. Bulmer continues to represent Andersen in the criminal case.
Becker County contracts with Reliance Telephone, Inc. (“Reliance”) to install and
operate the inmate phone system at the Jail. Gordon Aff. [Docket No. 25] ¶¶ 1, 2. When an

1

On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). As
both parties have moved for summary judgment, any disputed facts are noted.
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inmate is booked into the Jail,2 Jail staff reads a warning to the inmates informing them that the
telephones for inmate use are monitored and recorded and that an inmate has a right to a nonrecorded, privileged call with an attorney. Tindal Aff. Ex. I (Hodgson Dep.) at 26-27. The
warning read by Jail staff does not inform inmates about how to make an unrecorded call to an
attorney. Id. at 27. The inmate is also made aware of the inmate handbook and is either given a
copy or told where to locate one in the inmate common area. Id. at 37. Addressing inmate
phone calls, the handbook provides: “Any non-attorney/client privileged phone calls made from
the Becker County Jail will be monitored and/or recorded.” Id., Ex. 3 (Inmate Handbook) at 9.
Signs posted next to the inmate phones state, “All phone calls and messages to and from the
Becker County Jail are monitored and/or recorded. This includes the visiting booths.
Exceptions are phone calls made to an attorney.” Id., Ex. 5. The Jail records inmate calls for
purposes of Jail security, to prevent escapes, and to aid in inmate well-being such as suicide
prevention. Id. at 116. It also aids staff in monitoring inmates on work-release programs. Id.
Also at the time of booking, an inmate is told how to arrange for a private attorney-client
call. Id. at 53. If an inmate requests a call to an attorney who is not known to be an attorney by
the Jail staff, the inmate must provide the attorney’s phone number in writing so staff can verify
that it is an attorney number. Id. at 54. The staff then forwards the phone number to Reliance
who confirms the number is that of an attorney and designates the number as “private.” Id. at 58.
Jail staff can also make a phone number “private” if they confirm that the number does, in fact,
belong to an attorney. Id. Once a number is marked as “private,” it is placed on “the List” and

2

The Jail changed its procedure slightly in December 2008 as discussed infra. The
procedure recounted here is the procedure the Jail followed at the time Andersen and Holm were
booked into the Jail.
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Reliance will not record the phone call. Id. at 59. The same process is required for placing the
phone number of an attorney’s private investigator on the List. Id. at 79. Attorneys cannot
directly contact inmates and must call the Jail and have a staff member inform the inmate that the
inmate should call his attorney. Id. at 65. The Jail policy is not to allow attorney cell phone
numbers to be included on the List because of potential for abuse, but occasionally, exceptions
are made. Id. at 84-86, 89. The system does not monitor phone calls while the conversation is
taking place; they can only be listened to after the call is completed. Id. at 90. At the time this
suit was initiated, the system used by the Jail could store recorded phone calls for approximately
244 days. Id. at 96-97.
While the Jail’s policy was to orally inform inmates of how to place an attorney’s number
on the List, it appears that sometimes an inmate would be informed only when he specifically
asked. Id. at 152. Jail staff also testified that many times an inmate will ask other inmates how
to request a private call. Tindal Aff. Ex. L (Soyring Dep.) at 28. Staff also testified that they
were not trained on instructing inmates about how to place a number on the List but learned
about the process through observation. Tindal Aff. Ex. M (Peterson Dep.) at 27. They stated
that it was rare for an attorney’s number not to already be included on the established List. Id.
Andersen and Holm state that they were never informed at booking about how to request a
private phone call with an attorney. Andersen Decl. ¶¶ 4, 5; Holm Decl. [Docket No. 58] ¶¶ 3, 4.
Andersen claims that shortly after meeting with Bulmer and another attorney, he
provided the Jail with Bulmer’s business card showing his phone numbers, and the Jail made a
copy of the card. Andersen Decl. ¶¶ 20, 21. He also provided the Jail with a copy of the
business card of Glen Fladmark (“Fladmark”), the investigator his attorneys hired for the case.

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Id. ¶ 22. In the fall of 2007, Andersen and his attorneys began to suspect that the phone calls
between them, and Andersen’s calls to Fladmark, were being monitored. Id. ¶ 31. They tested
their theory by having Bulmer tell Andersen over the phone that he would bring narcotics to
Andersen during his next visit. Id. ¶ 32. Andersen states that Jail staff expressed more interest
to him about when Bulmer would next be visiting, searched his cell more often, and searched
Bulmer more thoroughly during his next visit than was customary. Id. ¶¶ 33-35. Bulmer
testified similarly, stating that Jail staff searched him much more thoroughly on the next visit.
Tindal Aff. Ex. K (Bulmer Dep.) at 61-64. Shortly thereafter, Andersen and his attorneys were
informed about the process for placing a number on the List. Andersen Decl. ¶ 39.
Andersen’s attorneys requested that their numbers be placed on the List in late November
or early December 2007. McArthur Aff. [Docket No. 44] Ex. 1. A few weeks later, the
attorneys informed Defendants that their calls were still being monitored. Id. Evidence
produced in discovery suggests a change in the procedure of how Reliance would block the
phone numbers caused some numbers to be omitted from the List. Id. Defendants were not
aware of Reliance’s change in procedure. Id. The numbers of Andersen’s attorneys, with the
exception of the cell phone numbers, were added to the List in early December. Id.
It is undisputed that because Andersen’s attorneys’ numbers were not effectively placed
on the List, they were subject to monitoring. Officer Baumann testified that he did listen to an
approximately one-minute portion of one call between Andersen and his attorney until he
realized that Andersen was speaking to his attorney. Tindal Aff. Ex. J (Baumann Dep.) at 71, 81.
Defendants have a policy that requires correctional officers to stop listening to a call once they
realize it is between an inmate and his attorney. Tindal Aff. Ex. B (Omnibus Hr’g Tr.) at 126.

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Officer Baumann also testified that after he listens to an attorney call, he looks through the
remainder of the call log in storage and deletes all the calls to that number. Id. at 140. Baumann
has testified that in the initial portion of the conversation he overheard between Andersen and his
attorneys, he never heard any discussions of information concerning the case, witnesses, or trial
strategy. Id. at 141. Additionally, he never initiated an investigation or made an inquiry based
on information he heard in the calls. Id.
On March 7, 2009, a contested omnibus hearing was held before Judge Peter M. Irvine in
Andersen’s criminal case. Omnibus Hr’g Tr. at 1. In that hearing, Andersen’s attorney raised
the issue of the monitored attorney-client phone calls and asked that the indictment be dismissed.
Id. at 109. Judge Irvine took testimony from Captain McArthur and Officer Baumann. Id. at
113, 138. Captain McArthur testified about the procedures for making a private phone call at the
Jail as well as the mistake in not getting Andersen’s attorneys’ numbers on the List. Id. at 113137. Officer Baumann testified at the hearing that he both deleted privileged calls and destroyed
CD copies that might contain the recording. Id. at 144. Judge Irvine ordered Defendants to stop
recording any calls between Andersen and his attorneys, whether made to cell phones or land
lines. Id. at 149.
On June 11, 2008, Judge Irvine issued a memorandum opinion and order determining that
the State did not deny Andersen access to his attorney. Tindal Aff. Ex. C (Judge Irvine Order) at
6. Judge Irvine found that law enforcement officials listened to Andersen’s calls to his attorney
but ceased listening once the official determined it was an attorney-client call. Id. at 7. He
found there was no evidence law enforcement officials listened to a conversation after it was
determined to be an attorney-client call. Id. He also found there was no evidence that anyone

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heard information related to the case. Id. He concluded that there was no evidence of prejudice
to Andersen’s rights, the practice of recording Andersen’s attorney-client calls had stopped, and
grounds to dismiss the indictment were lacking. Id.
This federal civil action was filed on October 15, 2008. Compl. [Docket No. 1]. On
October 29, Plaintiffs moved for a temporary restraining order seeking to halt Defendants’
inmate telephone practices. Motion for Temporary Restraining Order [Docket No. 4]. On
October 31, attorneys for the Plaintiffs and Defendants participated in a conference call with the
Court, and Defendants were ordered not to intercept calls from the attorneys and attorneys’
investigators appearing on behalf of Andersen and Holm. Following a hearing on December 12,
2008, the Court denied the Motion for a Temporary Restraining Order, finding that none of the
Plaintiffs were currently incarcerated at the Jail, and they had submitted no evidence or affidavits
that the practice of monitoring calls was ongoing. December 12, 2008 Order [Docket No. 29] at
1-2.
Since the filing of the Complaint, Defendants amended the inmate handbook and revised
the signs near the inmate telephones. The Amended Handbook provides,
Inmates may request in writing free and non-recorded telephone calls
with their attorney. The request will only be granted after written
verification from the attorney of representation. This free and nonrecorded call with an attorney will only be granted to a land line, not
a cell phone. Inmates may also request a non-recorded telephone call
with their attorney’s investigator. This request will only be granted
after written verification the investigator is licensed and either an
employee of the inmate’s attorney or has a contract with that
attorney.
Hodgson Dep. Ex. 2 (Amended Inmate Handbook) at 9-10. The signs near the phone contain
similar language. Id. Ex. 4. The Jail now requires an inmate to fill out a form on which he must

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request a private attorney phone call. Id. at 54, Ex. 6.
III. DISCUSSION
A.

Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion
for summary judgment, the Court views the evidence in the light most favorable to the
nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party
may not “rest on mere allegations or denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial.” Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995).
B.

Threshold Issues3
Defendants raise a number of threshold issues which they claim bar Plaintiffs’ claims.

Specifically, they argue that Andersen’s claims are barred by collateral estoppel, Andersen’s and
Holm’s claims are precluded by the Supreme Court’s holding in Heck v. Humphrey, 512 U.S.
477 (1994), and Bulmer lacks standing to assert his claims.
1.

Collateral Estoppel

3

Plaintiffs have styled their Complaint as a class action. They have not brought a Rule
23 motion, and the Court will only consider the named Plaintiffs’ claims.
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A collateral estoppel defense requires that (1) the precluded issue must be the same as in
the prior action; (2) the issue must have been litigated; (3) the issue was determined by a valid
and final judgment; (4) the determination was essential to the final judgment; and (5) the
estopped party must be a party to or in privity with a party to the prior litigation. Mille Lacs
Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 922 (8th Cir. 1997). “Under the
judicially-developed doctrine of collateral estoppel, once a court has decided an issue of fact or
law necessary to its judgment, that determination is conclusive in a subsequent suit based on a
different cause of action involving a party to the prior litigation.” United States v. Mendoza, 464
U.S. 154, 158 (1984). Defendants argue that Judge Irvine’s April 13, 2008 Order and June 11,
2008 Memorandum estops Andersen from relitigating these claims because Judge Irvine found
the State did not deny Andersen access to his attorney, and hence, his right to a fair trial. Tindal
Aff. Ex. C at 6-7.
Plaintiffs argue that collateral estoppel does not apply here because Judge Irvine’s
finding was that Andersen was not prejudiced by the recording of and limited listening to
Andersen’s attorney-client phone calls. Id. at 7. Plaintiffs contend that unlike suppression under
the Sixth Amendment, which requires a finding of prejudice, a Constitutional violation
(sufficient to maintain a civil rights action under 28 U.S.C. § 1983) may occur in the absence of
such prejudice. See United States v. Morrison, 449 U.S. 361, 367 (1981). Thus, they maintain,
the question before the Court in this case, whether the recording and monitoring of attorneyclient phone calls violates constitutional, statutory, and common law principles for purposes of §
1983 liability, was not addressed in Judge Irvine’s Order and Memorandum.
Judge Irvine’s consideration of the case involved different issues than those presented

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here. Defendants’ reliance on Allen v. McCurry, 449 U.S. 90 (1980), and Migra v. Warren City
School District Board of Education, 465 U.S. 75 (1984), is misplaced. In those cases, the
plaintiffs sought to relitigate an issue that required the same elements of proof already decided in
a prior action. Allen, 449 U.S. at 102; Migra, 465 U.S. at 84. Accordingly, the Court found that
collateral estoppel barred the subsequent claim. Allen, 449 U.S. at 103; Migra, 465 U.S. at 84.
In this suit, establishing the elements of the constitutional, statutory, and common law violations
does not require a finding of prejudice, which was required to warrant dismissal of the
indictments, the issue confronting Judge Irvine. Collateral estoppel does not bar the majority of
Andersen’s claims.
There is one exception to this conclusion. Judge Irvine specifically found that
Andersen’s right to confidential communication with his attorney pursuant to Minn Stat. §
481.10, subd. 2, was not violated. Tindal Aff. Ex. C at 6-7. Accordingly, collateral estoppel
bars Andersen’s claim under that statute.
2.

Heck v. Humphrey

Defendants next argue that Andersen’s and Holm’s claims are precluded by the Supreme
Court’s holding in Heck, 512 U.S. at 486-87. In Heck, the Court held:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a determination,
or called into question by a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff will necessarily
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imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated. But if the
district court determines that the plaintiff’s action, even if successful,
will not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed to
proceed in the absence of some other bar to the suit.
Id. (footnotes omitted). Heck does not apply in this case. It is uncontested that neither Andersen
nor Holm attacks the validity of their underlying convictions in this suit. A finding of violations
of their constitutional rights would not invalidate their state court convictions. Even if a jury
were to find that Defendants’s recording and monitoring of Andersen’s and Holm’s attorneyclient phone calls violated state and federal common law and the state and federal constitution,
Andersen’s and Holm’s convictions and pleas were not based on any information from those
phone calls, and, thus, there could be no prejudice resulting from the illegal recording and
monitoring sufficient to render the convictions constitutionally defective. Andersen’s and
Holm’s claims in the current suit are not precluded by Heck.
3.

Bulmer’s Standing4

Standing is a “threshold issue in determining whether a Federal Court may hear a case.”
Republican Party of Minn., Third Congressional Dist. v. Klobuchar, 381 F.3d 785, 791 (8th Cir.
2004). Under Article III of the Constitution, a party bringing a claim bears the burden of
establishing that he has standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). At
a minimum, standing requires a “case or controversy” in which (1) the plaintiff has suffered a
“concrete and particularized” injury in fact that is “actual and imminent, not conjectural or
hypothetical;” (2) “there must be a causal connection between the injury and the conduct
4

Bulmer alleges violations of the First Amendment, the federal and state wiretap statutes,
state common law intrusion into seclusion, and state common law attorney-client work product.
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complained of;” and (3) the injury must be capable of being “redressed by a favorable decision.”
Id. at 560 (internal quotations and citations omitted).
Bulmer lacks standing to address his First Amendment claim that his speech with his
client has been chilled by the recording and monitoring of the attorney-client calls by the jail
staff. The alleged injury is that recording and monitoring “has produced a serious chilling effect
upon what [Plaintiffs] are able to communicate to their attorneys via telephone for fear that [the
Jail]—and ultimately law enforcement personnel and the prosecution—will be privy to their
attorney/client privileged communications.” 1st Am. Compl. ¶ 77. Under Supreme Court
precedent, a claim of a chilling effect, in and of itself, is not sufficient to establish standing. See
Laird v. Tatum, 408 U.S. 1, 13-14 (1972); see also Eckles v. City of Corydon, 341 F.3d 762, 767
(8th Cir. 2003) (recognizing that allegations of a “subjective chill” fail to establish standing and
that there must be “a claim of specific present objective harm or a threat of specific future
harm”) (quotations omitted). In Laird, the Supreme Court considered an action seeking a
judicial declaration that alleged surveillance by the Army of “‘lawful and peaceful civilian
political activity’” was unconstitutional. Id. at 2. In addressing the issue of whether the
plaintiffs had standing to pursue their claims, the Court noted:
In recent years this Court has found in a number of cases that
constitutional violations may arise from the deterrent, or chilling,
effect of governmental regulations that fall short of a direct
prohibition against the exercise of First Amendment Rights. In none
of these cases, however, did the chilling effect arise merely from the
individual’s knowledge that a governmental agency was engaged in
certain activities or from the individual’s concomitant fear that,
armed with the fruits of those activities, the agency might in the
future take some other and additional action detrimental to that
individual. Rather, in each of these cases, the challenged exercise of
governmental power was regulatory, proscriptive, or compulsory in
nature, and the complainant was either presently or prospectively
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subject to the regulations, proscriptions, or compulsions that he was
challenging.
Id. at 11. (quotations omitted) (emphasis added). Thus, the Court concluded that “[a]llegations
of a subjective chill are not an adequate substitute for a claim of specific present objective harm
or a threat of specific future harm.” Id. (quotation omitted).
The District of Columbia Circuit Court of Appeals, in a similar case, held that decisions
that have found a chilling effect to be sufficient to confer standing have “involve[d] situations in
which the plaintiff has unquestionably suffered some concrete harm (past or immediately
threatened) apart from the ‘chill’ itself.” United Presbyterian Church in the U.S.A. v. Reagan,
738 F.2d 1375, 1378 (D.C. Cir. 1984). The court explained that the “[c]hilling effect is . . . the
reason why the governmental imposition is invalid rather than . . . the harm which entitles the
plaintiff to challenge it.” Id. at 1378. In a case that is particularly analogous to the case at bar,
the court in Al-Owhali v. Ashcroft held that a plaintiff lacked standing to challenge a federal
prison’s regulations specifying the contents of a notice that would be provided to a prisoner
when the prison had decided to commence monitoring of the inmates communications with his
attorney. 279 F. Supp. 2d 13, 17-18 (D.D.C. 2003). The alleged injury was the chilling effect
that the attorney-monitoring regulations would have on the plaintiffs ability to communicate with
his attorney. 279 F. Supp. 2d at 26.
Bulmer also lacks standing to bring a claim of misappropriation of attorney work
product. There is no evidence that anyone listened to his conversations with Andersen after it
was determined that the calls were between an attorney and client. No work product of Bulmer’s
was used by any Defendant, any agents of Defendants, or the State. Even accepting Bulmer’s
assertion that his advice has “independent economic value,” that advice was never
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misappropriated, and, thus, Bulmer has not experienced any injury. Pls.’ Mem. in Opp’n to
Summ. J. [Docket No. 56] at 43. The misappropriation of attorney-client work product claim is
dismissed for lack of standing.
Bulmer has standing, however, to assert his claims under the federal and state wiretap
statutes. The statutes forbid recording of a person’s phone calls, and, thus, Bulmer has alleged
an injury (the recording), causation (the Jail’s policies), and redressibility (equitable and legal
relief) for these causes of action. Were Bulmer to demonstrate that Defendants’ conduct was
“highly offensive,” see Swarthout v. Mutual Services Life Insurance Co., 632 N.W.2d 741, 744
(Minn. Ct. App. 2001), he would likewise have standing to pursue an intrusion into seclusion
claim.
4.

Monell Liability

In their brief, Plaintiffs clarify that they “have never brought individual claims against
either Gordon or McArthur; instead[,] Plaintiffs have always maintained claims against them in
their official capacity.” Pls.’ Mem. in Opp’n to Summ. J. at 41. “An official-capacity suit is
merely another way of pleading an action directly against the public entity itself.” Roberts v.
Dillon, 15 F.3d 113, 115 (8th Cir. 1994) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)); see also
Guzman v. Sheahan, 495 F.3d 852, 859 (7th Cir. 2007) (“An official capacity suit is tantamount
to a claim against the government itself.”). Under the Supreme Court’s decision in Monell v.
Department of Social Services, 436 U.S. 658, 690-92 (1978), a governmental entity cannot be
held liable under § 1983 merely because its employees committed unconstitutional acts. Instead,
Defendants are liable under § 1983 only if their “custom or policy caused the deprivation of the
right protected by the Constitution or federal law.” Angarita v. St. Louis County, 981 F.2d 1537,

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1546 (8th Cir. 1992).
Plaintiffs argue that Defendants have an unconstitutional policy of recording inmates’
attorney-client phone calls and of not informing them of how to request a non-recorded and nonmonitored phone call. There is no evidence to support this assertion. The County has a policy of
requiring all inmates to request in writing a non-monitored call to an attorney. An inmate must
give the Jail the number so that the Jail can verify that the number is that of an attorney. Once
the number is verified, any calls to that number cannot be monitored. Plaintiffs’ attempt to
describe the County’s “policy” as “not informing inmates how to request a non-monitored call,”
or “not informing inmates during booking how to arrange an unmonitored call” is an
inappropriate stretch of the facts. See Pls.’ Mem. in Opp’n to Summ. J. at 40. To the contrary,
the record demonstrates that the policy is to provide inmates with such information, but that on
occasion, Jail staff might inadvertently fail to inform an inmate about the procedure. Likewise,
the vast majority of attorney numbers are placed on the do not record list, and any monitoring
appears to be the exception, not the rule. As the Eighth Circuit has recognized, “[a] policy is a
deliberate choice to follow a course of action . . . made from among various alternatives by the
official or officials responsible for establishing final policy with respect to the subject matter in
question.” Hayes v. Faulkner County, 388 F.3d 669, 674 (8th Cir. 2004) (quotation omitted)
(emphasis added). The apparent inadequacies in the implementation of the Jail’s policy and
monitoring system do not rise to the level of showing a “deliberate choice” to follow a course of
action, and, thus, there is no unconstitutional policy. Cf. Larson v. Miller, 76 F.3d 1446, 1453
(8th Cir. 1996) (en banc) (holding, in a failure to train case, that proving deliberate indifference
to establish an unconstitutional policy requires a showing that the governmental entity knew its

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procedures were inadequate and likely to result in a violation of constitutional rights).
There is also no evidence that the County has a “custom” of violating inmates’ rights.
“Monell liability also attaches ‘for constitutional deprivations visited pursuant to governmental
“custom” even though such a custom has not received formal approval through the body’s
official decision-making channels.’” Kuha v. City of Minnetonka, 365 F.3d 590, 603 (8th Cir.
2003) (quoting Monell, 437 U.S. at 690-91)). To establish such a custom, a plaintiff must show
that the alleged constitutional violation was caused by a widespread, persistent pattern of
unconstitutional misconduct by government employees that government policy makers either
were indifferent to or tacitly authorized. Larson, 76 F.3d at 1453. The evidence fails to support
an inference of a “custom” at the Jail to violate the inmates rights. Again, the evidence shows
that there were only occasional instances in which an inmate was not informed about how to
make a non-monitored phone call to his attorney or when an attorney-client phone call was
inadvertently recorded. Peterson Dep. at 34, Soyring Dep. at 36.
Because Plaintiffs have asserted only official-capacity claims, their claims under § 1983
cannot survive summary judgment unless Plaintiffs can establish liability under Monell. Having
failed to do so, Defendants’ Motion for Summary Judgment is granted as to all of Plaintiffs’
claims under § 1983. But assuming for the moment that Plaintiffs could satisfy the requirements
of Monell, Plaintiffs’ § 1983 claims nonetheless fail for the reasons discussed below.
C.

Substantive Issues
Plaintiffs have taken a scatter-gun approach to asserting claims in their Complaint. As an

initial matter, the Court recognizes some general principles of law that courts have applied to
inmate challenges to procedures within a penal institution. First, “when a prison regulation

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impinges on an inmates’ constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Monitoring inmates’
phone calls not protected by attorney-client privilege serves a legitimate penological interest in
the safety and security of staff and inmates. See United States v. Hammond, 286 F.3d 189 (4th
Cir. 2002). Through the monitoring of an inmate’s call at the Jail, staff prevented a suicide
attempt. Soyring Dep. at 23. When a prison or jail clearly informs an inmate that phone calls
may be monitored, the subsequent use of the phone by an inmate implies consent to the call
being monitored. See United States v. Gross, 554 F. Supp. 2d 773, 777 (N.D. Ohio 2008);
United States v. Gotti, 42 F. Supp. 2d 252, 284 (S.D.N.Y. 1999). Finally, it is uncontested that
Becker County has updated its inmate handbook and the language on the signs within the jail to
more fully and explicitly inform inmates of how to request a private call to an attorney.
Hodgson Dep. Compare Exs. 2 and 4 with Exs. 3 and 5.
There is no dispute that portions of phone calls were listened to by law enforcement.
Defendants assert, and Plaintiffs proffer no evidence to rebut, that the investigators stopped
listening when they realized that a call was between an inmate and an attorney and that the
recording was then deleted. There is also no evidence that the investigators heard any
incriminating statements by inmates, and no attorney-client recording was used in the
prosecution of Andersen or Holm, nor was any information heard prior to the deletion of the
recording used in the prosecutions. With the stage thus set, the Court will analyze the claims.
1.

First Amendment

Plaintiffs allege that the monitoring and/or recording of attorney-client privileged
telephone conversations has produced a serious chilling effect on the matters about which clients

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and attorneys are able to communicate over the phone. 1st Am. Compl. ¶ 77. Plaintiffs assert
that the mere “fact that the Jail records these privileged communications restricted [their] First
Amendment rights because they could not openly and freely communicate with their attorney.”
Pls.’ Mem. in Opp’n to Summ J. [Docket No. 53] at 30. Though not argued by Defendants, the
analysis concluding that Bulmer lacks standing to assert a First Amendment claim based on such
a claimed chilling effect, see supra III.B.3, applies equally to Andersen and Holm.5 But even if
Plaintiffs had standing to assert their First Amendment claims, the claims nevertheless fail.
Plaintiffs’ contention ignores the alternative means of communicating that were
available. There was no restriction on their ability to freely and openly communicate with their
attorneys in person or through the mail. See Samford v. Dretke, 562 F.3d 674, 680 (5th Cir.
2009) (upholding a restriction on inmates ability to communicate with minor children because he
had an alternate means to communicate with them through the mother); Sisneros v. Nix, 884 F.
Supp. 2d 1313, 1329 (N.D. Iowa 1995) (finding that English only policy was not a First
Amendment violation, in part, because it allowed an alternate means of communication to
inmates). Moreover, at the time they were communicating with their attorneys, they believed
they could make an unmonitored phone call, and, thus, no chilling effect occurred. If there was
any intrusion into constitutionally protected rights, it was not a violation of Plaintiffs First
Amendment rights.
2.

Fourth Amendment

Andersen and Holm allege that their attorney-client phone calls were monitored without
their consent, in violation of the Fourth Amendment’s prohibition against unreasonable searches.
5

Standing is a jurisdictional requirement that a court is obliged to consider sua sponte.
See Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994).
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1st Am. Compl. ¶¶ 79-83. In determining whether a jailhouse search is unreasonable, a court
must balance “the need of the particular search against the invasion of personal rights that the
search entails. Courts must consider the scope of the particular intrusion, the manner in which it
is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v.
Wolfish, 441 U.S. 520, 559 (1979). When the search involves an inmate, a court should balance
the legitimate penological interest against the privacy interests of the inmate. Id. at 560
(upholding a requirement that inmates undergo a visual body cavity search).
Defendants argue they have a legitimate penological interest in recording inmate phone
calls. Plaintiffs respond that regardless of the legitimacy of the interest, recording attorney-client
phone calls does not further that interest. Courts examining similar issues have focused on the
question of consent. In United States v. Novak, 531 F.3d 99, 101 (1st Cir. 2008), Justice
O’Connor, sitting by designation, confronted a situation in which jail staff monitored attorneyclient phone calls and then used that information against the defendant. The defendant sought to
suppress the evidence arguing that the monitoring violated the Fourth Amendment. Id. The
District Court agreed, but the First Circuit reversed. Id.
Justice O’Connor wrote that the court was “troubled” by the 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 consent finding on (1) the signs
posted by the phones, which stated that “[c]alls are subject to monitoring and recording”; and (2)
the automated message played at the beginning of every call warning the inmate that the call is
subject to monitoring and recording. Id. at 100. There was a process through which an attorney
number could be exempted, but because of a mechanical error, the calls were mistakenly

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monitored. Id. The First Circuit recognized that the defendant may have a protected interest in
the privacy of attorney-client phone calls, but such an interest does not exist when one party
consents to monitoring. Id.
The case at bar presents a different fact pattern than that in Novak. In Novak, the
defendant was clearly placed on notice that his calls were being recorded and monitored. Here, a
fact question exists concerning whether Andersen and Holm consented to the recording. There
is conflicting testimony about whether they were informed of the procedure to request a private
attorney phone call. Taking the evidence in the light most favorable to Plaintiffs, and given the
notice that was by the telephones indicating that all calls were subject to monitoring and
recording except attorney calls, a fact-finder could conclude that Andersen and Holm did not
consent to such monitoring.
Defendants argue that even if there was a violation, they are immune from suit based on
qualified immunity. Qualified immunity does not apply because Defendants are being sued
solely in their official capacity. See Kentucky v. Graham, 473 U.S. 159, 167 (1985) (holding
that qualified immunity is unavailable to a defendant sued in his official capacity). However,
because Plaintiffs have failed to establish Monell liability on their § 1983 official-capacity
claims, as discussed supra III.B.4, Andersen’s and Holm’s Fourth Amendment claims cannot
survive summary judgment.
3.

Fifth Amendment

Andersen and Holm allege that statements they made in monitored phone calls to their
attorneys were used against them and violated their right against self-incrimination under the
Fifth Amendment. 1st Am. Compl. ¶¶ 84-89. There is no evidence that any information from an

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attorney-client phone call was used against either Andersen or Holm. Plaintiffs argue that they
are unable to present any evidence of self-incriminating statements because Defendants
destroyed evidence of wrongdoing, and the Court should therefore make an adverse inference
about the lack of evidence. No such inference is warranted in this case. In determining whether
an adverse inference should be made, courts consider “(1) whether the record retention policy
was reasonable considering the facts and circumstances surrounding those documents, (2)
whether lawsuits or complaints have been filed frequently concerning the types of records at
issue, and (3) whether the document retention policy was instituted in bad faith.” Stevenson v.
Union Pacific R.R. Co., 354, F.3d 739, 746 (8th Cir. 2004).
At the time this suit was filed, the Jail phone system could maintain phone calls for
approximately 244 days before the information would automatically be recorded over. Hodgson
Dep. at 94. The retention is based entirely on storage capacity and reasonable. There is also no
indication that there have been other lawsuits or complaints involving the policy and no
indication it was implemented in bad faith. The omnibus hearing before Judge Irvine took place
on March 7, 2008, at which point no further monitoring and recording of Plaintiffs’ attorneyclient phone calls took place pursuant to a court order, and Plaintiffs did not commence this suit
until October 15, 2008. The time between these two events approaches the 244-day limit of the
equipment. Plaintiffs made no effort to seek retention of the recorded calls prior to their
deletion. Andersen’s and Holm’s Fifth Amendment claims fail.
4.

Sixth Amendment

Andersen and Holm argue that the recording and monitoring of their attorney-client
phone calls violates their Sixth Amendment right to counsel. 1st Am. Compl. ¶¶ 90-93. To raise

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a successful § 1983 claim for the violation of the Sixth Amendment, Plaintiffs must demonstrate
that there was an intrusion into the attorney-client communication and that there was some
prejudice to them. Weatherford v. Bursey, 429 U.S. 545, 558 (1977). In Weatherford, the Court
found no § 1983 violation when an undercover law enforcement officer participated in a meeting
between the defendant and his attorney. Id. at 560. The Court found that there was no tainted
evidence, no communication of defense strategy to the prosecution, and no purposeful intrusion
into the defendant’s rights. Id. Thus, there was no violation of the Sixth Amendment. Id.
In this case, there is no evidence that any officer listened to phone calls between
Plaintiffs after the call was identified as being between an attorney and client. Baumann Dep. at
68-69; Omnibus Hr’g Trans. at 126, 138. Andersen and Holm were not prejudiced by the
recording and monitoring of their phone calls as no information overheard in the phone
conversations was ever used against them. These circumstances mirror those in United States v.
Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991). In Noriega, the jail holding Noriega had a
procedure through which Noriega could make a non-monitored call to his attorney, but there was
evidence that Noriega was unaware of the procedure. Id. at 1485-86. Noriega made a monitored
call and law enforcement officers overheard conversations between Noriega and his attorney. Id.
The Noriega court found that the intrusion was unintentional and there was no prejudice against
Noriega because the substance of the calls was not used against him. Id. at 1489. Accordingly,
the court dismissed the § 1983 claim finding no violation of the Sixth Amendment. Id. Here,
too, because there was no intentional intrusion and no prejudice to Andersen and Holm,
summary judgment is appropriate for Defendants on the Sixth Amendment claim.
5.

Fifth and Fourteenth Due Process

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Andersen and Holm allege that the recording and monitoring of their attorney-client
phone calls was a substantive violation of their Fifth Amendment Due Process rights as
incorporated against Defendants through the Fourteenth Amendment. 1st Am. Compl. ¶¶ 94-95.
“The standard for evaluating a substantive due process claim is whether the alleged behavior of
the governmental officer is so egregious, so outrageous, that it may be fairly said to shock the
contemporary conscience.” Cavataio v. City of Bella Villa, 570 F.3d 1015, 1022 (8th Cir. 2009).
Plaintiffs cite several cases in which courts have expressed concern and condemnation
when attorney-client communications have been monitored by law enforcement. The majority of
these cases, however, involved a situation in which the defendant was prejudiced by the conduct
of law enforcement. See State v. Sugar, 417 A.2d 474 (N.J. 1980); Matter of Kozak, 256
N.W.2d 717 (S.D. 1977); Cody v. Weber, 256 F.3d 764 (8th Cir. 2001). In the other two cases
cited by Plaintiffs, the defendants brought claims alleging a Sixth Amendment violation of the
right to counsel and were decided before the prejudice requirement was articulated in
Weatherford. See Fajeriak v. State, 520 P.2d 795 (Alaska 1974); Coplon v. United States, 191
F.2d 749 (D.C. Cir. 1951). Because neither Andersen nor Holm were prejudiced by any
monitoring of their attorney-client phone calls and there is no evidence that the monitored
conversations were deliberately overheard by law enforcement rather than as a result of a glitch
in the process of adding phone numbers to the (do not intercept) List, Defendants’ behavior does
not “shock the conscience,” and, therefore, there is no substantive due process violation.
6.

Federal Common Law

Andersen and Holm allege that Defendants violated federal common law by denying
them access to the recorded phone calls, which was favorable or material to their defense and/or

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was exculpatory. 1st Am. Compl. ¶¶ 99-105. In Brady v. Maryland, 373 U.S. 83 (1963), “the
Supreme Court held that due process requires the government to disclose to the defense all
evidence favorable to the accused.” United States v. Vieth, 397 F.3d 615, 619 (8th Cir. 2005).
“To find a Brady violation, evidence must be material and exculpatory and have been suppressed
by the government.” Id. There is no evidence in the case at bar the government suppressed any
recordings that were material or exculpatory. Additionally, because Plaintiffs were parties to
any phone call, they would be aware of any material or exculpatory information disclosed and
could direct the Court to such evidence. They have failed to do so. There is no violation of
federal common law.
7.

Minnesota Constitutional Violations

Andersen and Holm allege violations of Article I, Sections 6, 7, and 10 of the Minnesota
Constitution. 1st Am. Compl. ¶¶ 79-83, 90-95. Their due process claims under Article I,
Section 7 fail because the due process protections under the federal and Minnesota constitutions
are co-extensive. Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988). Because
they cannot state a claim under the federal Due Process Clause, they cannot state a claim under
the state Due Process Clause. Additionally, Minnesota courts have not recognized a private right
of action for a violation of the Article I, Section 7 of the Minnesota Constitution. See Oehrleins
& Sons & Daughters, Inc. v. Hennepin County, 922 F. Supp. 1396, 1400 (D. Minn. 1996) (citing
Bird v. State Dep’t of Pub. Safety, 375 N.W.2d 36, 40 (Minn. Ct. App. 1985)), reversed on other
grounds 115 F.3d 1372 (8th Cir. 1997); see also Thomsen v. Ross, 368 F. Supp. 2d 961, 975 (D.
Minn. 2005) (“Minnesota has not enacted a statute equivalent to § 1983, although Minnesota
courts have recognized direct causes of action for violating certain sections of the Minnesota

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Constitution.”). Moreover, in the event that the Minnesota courts were to recognize such a right,
the Court believes the Minnesota courts would analyze that right similarly to the analysis of the
Sixth Amendment right. See Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 833
(Minn. 1991) (incorporating the Sixth Amendment analysis of when the right to an attorney
attaches for purposes of the parallel right provided by state law); see also Butala v. State, 664
N.W.2d 333, 344 (Minn. 2003) (recognizing the similarities between the right to counsel under
the Sixth Amendment and the parallel right under Article I, Section 7). Because there is no Sixth
Amendment violation, there is no corresponding Article I, Section 7 violation. Finally,
Andersen’s and Holm’s unreasonable search claims under the Minnesota Constitution fail
because Minnesota does not recognize a private cause of action under Article I, Section 10. See
Guite v. Wright, 976 F. Supp. 866, 871 (D. Minn. 1997); see also Luckes v. Hennepin County,
No. 03-31111, 2004 WL 1683145, at *4 (D. Minn. July 28, 2004); Goldberg v. Hennepin
County, No. 03-3110, 2004 WL 1386154, at *3 (D. Minn. June 18, 2004). Accordingly, none of
Plaintiffs’ claims under the Minnesota Constitution survive summary judgment.
8.

Minn. Stat. § 481.10, Subd. 2

Holm alleges Defendants violated Minn Stat. § 481.10, subd. 2, by denying his right to a
private and confidential phone call to his attorney. 1st Am. Compl. ¶¶ 106-08. Section 481.10,
subd. 2 provides that when a defendant is restrained by law enforcement, the state “shall provide
private telephone access to any attorney retained by or on behalf of the person restrained, or
whom the restrained person may desire to consult at no charge to the attorney or to the person
restrained.” The Minnesota Court of Appeals has found that the proper remedy for a violation of
§ 481.10, subd. 2 is the suppression of any statements overheard by the police. Koester v.

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Commissioner of Pub. Safety, 438, N.W.2d 725, 727 (Minn. Ct. App. 1989); see also Sherbrooke
v. City of Pelican Rapids, No. 05-671, 2006 WL 3227783, at *13-14 (D. Minn. Nov. 7, 2006)
(overruled on other grounds). Suppression is not a remedy since this is a civil action for legal
and equitable relief. No other remedy has been recognized by the Minnesota courts.
Accordingly, Holm’s claim under Minn Stat. § 481.10, subd. 2 is dismissed.
9.

Minnesota Common Law

Plaintiffs assert claims under Minnesota common law for the tort of intrusion upon
seclusion. 1st Am. Compl. ¶¶ 112-18. Under Minnesota law, the tort of intrusion upon
seclusion has three elements: “(a) an intrusion; (b) that is highly offensive; and (c) into some
matter in which a person has a legitimate expectation of privacy.” Swarthout, 632 N.W.2d at
744. The recording of Plaintiffs attorney-client calls may be an intrusion into a matter in which
there is a legitimate expectation of privacy, but the intrusion was not highly offensive as a matter
of law. The reasonable person standard is used to determine whether an intrusion is highly
offensive and becomes a question of law when a reasonable person could only draw one
conclusion based on the evidence. Id. at 745. While the Minnesota courts have yet to fully
delineate the boundaries of the tort of intrusion into seclusion, the Court does not believe that a
reasonable person could conclude that the limited monitoring of the phone calls in this instance
was highly offensive. The standard appears to be analogous to the “shock the conscience”
analysis employed in substantive Due Process claims. The evidence shows that Defendants did
not deliberately record the attorney-client calls but rather that any recording was inadvertent and
the result of a breakdown in the process through which an inmate could secure a private phone
call. Moreover, the record indicates that Defendants ceased listening to the calls when it became

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evident that the calls were between an attorney and client.
10.

Wiretap Statutes

Plaintiffs' final two claims are that Defendants violated the federal and state wiretap
statutes, respectively, 18 U.S.C. §§ 2510-22 and Minn Stat. § 626A.02, by recording and
monitoring their attorney-client phone calls without their consent. 1st Am. Compl. ¶¶ 96-98,
109-11. The parties have filed cross-motions for summary judgment on these claims. The
federal and state wiretap statutes are nearly identical. Wagner v. Wagner, 64 F. Supp. 2d 895,
899 (D. Minn. 1999) (citing Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 406 (Minn. Ct.
App. 1995)). Both statutes provide a civil remedy for individuals whose communications are
intercepted. Compare 18 U.S.C. § 2520 with Minn. Stat. § 626A.02, subd. 5.6 Pursuant to 18
U.S.C. § 2511(1)(a), anyone who “intentionally intercepts, endeavors to intercept, or procures
any other person to intercept or endeavor to intercept, any wire, oral, or electronic
communication . . . shall be subject to suit as provided in subsection (5).” Subsection 5 creates a
civil cause of action for any violation of the statute. 18 U.S.C. § 2520(a).
Defendants argue that two exceptions apply in this case. The first arises under the
definition of “electronic, mechanical, or other device,” which excludes “any equipment or
facility used “by an investigative or law enforcement officer in the ordinary course of his duties.”
18 U.S.C. § 2510(5)(a)(ii). Defendants argue that it is standard law enforcement practice to
monitor inmate calls. See Lanza v. State of New York, 370 U.S. 139, 143 (1962). While the
Court agrees that the ordinary course of a law enforcement officer’s duties include, in the
abstract, the monitoring of inmate communications, the monitoring of an inmate’s phone call
6

Because the statutes are virtually identical, the Court will analyze both types of claims
under the federal wiretap statute.
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with his attorney is not in the ordinary course of duties. Such communications are
constitutionally protected, and, on this record, there is nothing to support a showing that
monitoring the specific type of communications that are the subject of this action would serve a
legitimate law enforcement purpose. For this reason, the exception does not apply.
The second exception under the statute provides that “[i]t shall not be unlawful under this
chapter for a person acting under color of state law to intercept a wire, oral, or electronic
communication, where such person is a party to the communication or one of the parties to the
communication has given prior consent to such interception.” 18 U.S.C. § 2511(2)(c). Other
courts that have addressed the issue have held that express or implied consent to having a call
monitored by the prison falls within the § 2511(2)(c) exception. United States v. Footman, 215
F.3d 145, 155 (1st Cir. 2000); Gilday v. Dubois, 124 F.3d 277, 298 (1st Cir. 1997). In this case,
however, there was no express consent to monitoring inmate attorney-client phone calls.
Plaintiffs did not sign a form acknowledging consent. See Footman, 215 F.3d at 155. Nor,
taking the evidence in the light most favorable to Plaintiffs, can consent be implied. As noted in
the Fourth Amendment analysis, see supra III.C.2, there is an unresolved question as to whether
Andersen and Holm consented to monitoring. This fact question precludes both Plaintiffs’ and
Defendants’ Motions for Summary Judgment on the claims under the wiretapping statutes.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Defendants Becker County, Tim Gordon, and Joseph H. McArthur’s Motion for
Summary Judgment [Docket No. 38] is GRANTED IN PART and DENIED IN

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PART;
2.

Plaintiffs Kenneth E. Andersen, Dell D. Holm, and William K. Bulmer, II’s
Motion for Summary Judgment on Counts VI, VIII, and IX [Docket No. 47] is
DENIED; and

3.

Counts I, II, III, IV, V, VII, VIII, X, XI of the First Amended Complaint [Docket
No. 3] are DISMISSED.7
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE

Dated: September 28, 2009.

7

For clarity, the only surviving claims are Count VI and Count IX.
29