Evans v. Skolnik, NV, Order re Ptf's Objection to R&R, Atty Call Monitoring, 2012

Type: Court Orders • March 7, 2012 • Locations: United States of America -> Nevada • Topics: Telephones -> Attorney Calls, Telephones -> Telephone Monitoring

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Case 3:08-cv-00353-GMN -VPC Document 232

Filed 03/07/12 Page 1 of 9

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

DONALD YORK EVANS, et al.,
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Plaintiffs,
vs.

HOWARD SKOLNIK, et al.,
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Defendants.

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Case No.: 3:08-cv-00353-GMN-VPC
ORDER

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Pending before the Court is Plaintiff Witherow’s Objection (ECF No. 223) to Magistrate

Judge Valerie P. Cooke’s Report and Recommendation (ECF No. 222). This action was referred

to Judge Cooke pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Judge Cooke

recommended that this Court enter an order:

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(1) Denying Plaintiff Witherow’s Motion for Leave to Substitute Specific Names
of Doe Defendants (ECF No. 204);
(2) Denying Plaintiff Witherow’s Motion for Partial Summary Judgment (ECF
No. 205);
(3) Granting Defendants Lea Baker, William Donat, Don Helling, Brian Henley,

and Howard Skolnik’s Motion for Summary Judgment on Plaintiff Evans’

First Amended Complaint (ECF No. 206); and

(4) Granting Defendants Lea Baker, I. Connally, William Donat, Don Helling,

Brian Henley, and Howard Skolnik’s Motion for Summary Judgment on

Plaintiff Witherow’s Second Amended Complaint (ECF No. 207), except as

to Plaintiff Witherow’s claim that defendants violated his rights under the

Omnibus Crime Control and Safe Streets Act by engaging in extended

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monitoring of his legal calls, for which Judge Cooke recommended that

summary judgment be denied.

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(R&R, 35:22-28, 36:1-4, ECF No. 222.)
A party may file specific written objections to the findings and recommendations of a

United States Magistrate Judge made pursuant to LR IB 1-4. 28 U.S.C. § 636(b)(1)(B); LR IB 3-

2. Upon the filing of such objections, the Court must make a de novo determination of those

portions of the Report to which objection is made and may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1);

LR IB 3-2(b). Plaintiff Witherow objects to Judge Cooke’s recommendation denying his

Motion for Leave to Substitute Names of Doe Defendants (ECF No. 204). Plaintiff Witherow

also objects to Judge Cooke’s findings regarding “Legal Calls – Initial and Extended

Monitoring” as stated in § II.B.d. of the R&R at 17-31, and to the findings regarding “Failure to

Properly Respond to Grievances Claims” as stated in § II.B.d of the R&R at 31.

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Objection to Finding that Plaintiff Witherow’s Motion for Leave to
Substitute Specific Names of Doe Defendants be Denied.

Plaintiff Witherow objects to the findings and recommendation of Judge Cooke regarding

his Motion for Leave to Substitute Specific Names for Doe Defendants (ECF No. 204), which

was filed in March 2011. In that motion, Plaintiff Witherow requested to substitute “Defendants

Henley, Donat, Helling and Skolnik in the place and stead of the Doe Defendants named in the

36th, 44th, 48th, 49th, 57th, 74th, 75th, 81st, 82nd, 89th, 91st, 92nd and 114th Causes of Action

in the Second Amended Complaint (SAC).” (Mot. for Leave to Subst., 1:24-27, ECF No. 204.)

Defendants Henley, Donat and Helling each denied Plaintiff Witherow’s grievance regarding the

alleged interception of his attorney/client phone calls. (Answer to Compl., 3:¶25, ECF No. 13.)

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Plaintiff Witherow’s Motion for Leave to Substitute Specific Names for Doe Defendants
(ECF No. 204) was filed on March 18, 2011, almost two years after the Second Amended

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Complaint (“SAC”) (ECF No. 80) was filed on May 5, 2009, and almost precisely two years

after Plaintiff Witherow submitted the SAC as an attachment to his Motion to Amend/Correct

Complaint (ECF No. 64-1) on March 30, 2009. In the R&R, Judge Cooke stated that “Plaintiff

Witherow had ample time to discover the identity of any Doe defendants through the prolonged

discovery process that occurred in this case.” (R&R, 11:5-6.) Judge Cooke found that Plaintiff

Witherow “unduly delayed seeking amendment and has not shown good cause for the delay or

the amendment.” (Id. at 11:16-17.) Judge Cooke further found that allowing the substitution “at

this late date would further delay this case . . . and would prejudice defendants.” (Id. at 11:22-23.)

In his Objection, Plaintiff Witherow misstates Judge Cooke’s findings, arguing that the

recommendation was “based on a finding that Witherow had ample opportunity to amend his

complaint in prior proceedings in the case.” (Obj. to R&R, 2:12-13.) Plaintiff Witherow argues

that because “Witherow had repeatedly attempted to gather information in the discovery process

to prepare and file an amended complaint and . . . the Court has repeatedly denied him that

opportunity,” Judge Cooke’s findings were in error. (Id. at 2:22-25.) The Court finds no

evidence to support this argument, nor any evidence showing that Plaintiff Witherow previously

attempted to substitute the Doe defendants, and Plaintiff Witherow provides none. The Court

agrees with Judge Cooke’s conclusion that Plaintiff has not shown good cause, and that

substitution at this late date would further delay the case and prejudice Defendants. Therefore,

Judge Cooke’s findings and recommendation as to the Motion for Leave to Substitute Specific

Names of Doe Defendants (ECF No. 204) will be affirmed and adopted in full.

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II.

Objection to Finding that Plaintiff Witherow’s Fourth Amendment
Rights Were Not Triggered Because He Did Not Have An Actual
Subjective Expectation of Privacy in His Telephonic
Communications With His Attorneys.

Plaintiff Witherow objects to Judge Cooke’s finding that no genuine issue of material fact
exists as to whether he had an actual subjective expectation of privacy in his telephonic

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communications with his attorneys. Judge Cooke refers to Plaintiff Witherow’s deposition

testimony and his affidavit, attached to his motion for partial summary judgment, as belying his

claim that he had an actual subjective expectation of privacy. Plaintiff Witherow objects that

“[a]ny reasonable juror would conclude that Witherow did have an actual subjective expectation

of privacy in his attorney/client communications.” (Obj. to R&R, 3:12-14.) In support of this

argument, Plaintiff Witherow offers the following bases:

1. It is against constitutional, statutory and regulatory law for prison officials,

without a search warrant or consent of a party, to intercept and eavesdrop on a

prisoner’s attorney/client telecommunications;
2. Prison officials are law enforcement officers expected and required to comply

with the law; and,

3. All persons in the United States of America are entitled to an actual and

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reasonable subjective expectation that law enforcement officials will comply

with the law.

(Id. at 3:14-19.) For these statements Plaintiff Witherow cites to the Report and

Recommendation in the form of an “Id.” citation. (Id. at 19.)
The Court agrees with Judge Cooke’s conclusion that Plaintiff Witherow’s deposition

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testimony and affidavit contradict his argument that he had an actual subjective expectation of

privacy triggering the Fourth Amendment, such that no reasonable juror could find otherwise.

Therefore, Judge Cooke’s findings regarding Plaintiff Witherow’s claims for violation of his

Fourth Amendment rights will be accepted and adopted in full. Furthermore, Judge Cooke’s

recommendation to grant Defendants’ Motion for Summary Judgment and to deny Plaintiff

Witherow’s Motion for Partial Summary Judgment on his claims for violation of his Fourth

Amendment rights will be accepted and adopted in full.\

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III.

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Objection to Finding that the law enforcement exception Omnibus
Crime Control and Safe Streets Act Applies to Defendants’ Practice
of Initially Screening Prisoner Attorney/Client Telecommunications.

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Plaintiff Witherow objects to Judge Cooke’s finding that the law enforcement exception

to the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510(5)(a), applies to

Defendants’ practice of initially screening prisoner attorney/client telecommunications. The

statute provides that where a “law enforcement officer in the ordinary course of his duties” uses

a device otherwise prohibited by the statute, an exception applies. See United States v. Van

Poyck, 77 F.3d 285, 291-292 (9th Cir. 1996).

Plaintiff Witherow appears to object to Judge Cooke’s finding that the law enforcement

exception applies by arguing that here, the law enforcement officers were not acting in the

ordinary course of their duties when they initially screened the telephone calls, but were instead

acting illegally in violation of Nevada Department of Corrections regulations and Nevada

Revised Statutes. The Court agrees with Judge Cooke’s construction of the statutes and

regulations cited by Plaintiff Witherow, and with her finding that the law enforcement officers

were not acting illegally. (See R&R, 27:12-15.)

Notwithstanding the heading under which this objection is submitted, Plaintiff Witherow

also appears to object to any finding that the consent exception applies as well. The statute

provides that where “one of the parties to the communication has given prior consent to such

interception,” an exception applies. 18 U.S.C. § 2511(2)(c). “Consent may be express or may be

implied in fact from surrounding circumstances indicating that the [defendant] knowingly

agreed to the surveillance.” Van Poyck, 77 F.3d at 292 (alteration in original) (internal quotation

marks omitted). However, here, the Court finds that Judge Cooke’s Report and Recommenda-

tion does not make a finding that the consent exception applies. Therefore, to the extent that

Plaintiff Witherow’s arguments are directed at that issue, they fail to support his objection.

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Accordingly, the Court will accept and adopt in full Judge Cooke’s findings as to the

practice of initially screening calls under the Omnibus Crime Control and Safe Streets Act, and

her recommendation that summary judgment be granted in favor of Defendants and against

Plaintiff Witherow.

IV.

Objection to Finding that Plaintiff Witherow’s Fourteenth
Amendment Rights Were Not Violated By the Interception and
Monitoring of His Attorney/Client Telecommunications.

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Plaintiff Witherow objects to Judge Cooke’s finding that Plaintiff Witherow’s Fourteenth
Amendment rights were not violated by the interception and monitoring of his attorney/client

telecommunications, by arguing that Judge Cooke “failed to conduct an analysis of Witherow’s

Fourteenth Amendment right to privacy and his Fourteenth Amendment right to due process in

relation to his state created right to confidential communications with his attorney.” (Obj. to

R&R, 5:16-18.) He also objects to Judge Cooke’s analysis and use of the decision in Sandin v.

Conner, 515 U.S. 472 (1975). (Id. at 5:21-24.) He argues that “[t]hose liberty interests must be

analyzed under the laws governing the deprivation of a constitutional right and the deprivation

of state created rights” instead. (Id.) Plaintiff Witherow does not name these laws in his

objection.

The Court does not find that Judge Cooke’s use or application of the decision in Sandin

v. Conner is in error. The Court furthermore agrees with Judge Cooke’s analysis and

conclusions relating to her finding that Plaintiff Witherow’s Fourteenth Amendment rights were

not violated by the interception and monitoring of his attorney/client telecommunications, and

will accept these findings in full. The Court will accept and adopt in full Judge Cooke’s

recommendation that Defendants’ Motion for Summary Judgment be granted as to Plaintiff

Witherow’s Fourteenth Amendment claim, and that Plaintiff Witherow’s Motion for Partial

Summary Judgment for the same be denied.

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Objection to Finding Based on Failure to Properly Respond to
Grievance Claims.

In her Report and Recommendation, Judge Cooke correctly cites well-established

precedent stating that denial of a grievance does not in itself rise to the level of a constitutional

violation. Judge Cooke explains that “[o]ther than [D]efendants’ purportedly inadequate

responses to [Plaintiff Witherow’s] administrative grievances, [Plaintiff Witherow] advances no

factual allegations to support the notion that any of these [D]efendants intercepted [P]laintiff

Witherow’s calls or engaged in any affirmative acts that violated his rights in connection with

the grievance process.” (R&R, 31:13-15.) Judge Cooke quotes from Plaintiff Witherow’s

Motion for Partial Summary Judgment (Mot. Partial Summ. J., 7:¶13, ECF No. 205), in which

he argues:

The

interception

and

eavesdropping

Witherow’s

confidential

attorney/client telecommunications continued because of the failure of

Defendants Henley, Donat, or Helling to initiate any type of corrective

action in the grievance process; thereby rendering these Defendants

responsible for the continued and ongoing interception and eavesdropping

on Witherow’s attorney/client telecommunications, as alleged in the 116th

Cause of Action in the SAC (#80).

(Id. at 31:8-12.) In the SAC, the 116th Cause of Action alleges violations by “Defendants

Henley, Donat and Helling when those Defendants failed to conduct an adequate investigation

of Plaintiff Witherow’s grievance claims, failed to initiate any corrective action in the grievance

process and denied Plaintiff Witherow any relief in the grievance process.” (SAC, 30:¶61, ECF

No. 80.)

Plaintiff Witherow objects to these findings, arguing that they mischaracterize his claims

against Defendants Henley, Donat and Helling. (Objection, 6:1-2.) He attempts to distinguish a

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constitutional claim based on denial of a grievance from a constitutional claim based on

Defendants Henley, Donat and Helling’s “failure to intervene . . . after the violation of those

rights [is] brought to their attention in the grievance process.” (Id. at 6:2-5.) Plaintiff Witherow

cites an ambiguous “Id.” and case law in support of his argument that he “has presented a valid

claim against these Defendants based on their personal participation in the violation of his

constitutional and statutory rights by their failure to intervene to stop the on-going violation of

his constitutional and statutory rights.” (Id. at 6-11.) Although Plaintiff Witherow incorrectly

cites case law to support that proposition, the cited cases do support the proposition that there

must be a showing of personal involvement or participation in an alleged rights deprivation

under 42 U.S.C. § 1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability

under section 1983 arises only upon a showing of personal participation by the defendant.”);

Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under color

of state law to be liable under section 1983 there must be a showing of personal participation in

the alleged rights deprivation: there is no respondeat superior liability under section 1983.”);

Reed v. Brackbill, No. 3:07-cv-00149-BES-RAM, Mag. J. R&R, 9:4-5, ECF No. 42, available

at 2008 U.S. Dist. LEXIS 83245, at *15 (D. Nev. July 2, 2008) (“Liability under § 1983 arises

only upon a showing of personal participation by the defendants in the alleged constitutional

deprivation.”).

Because Plaintiff Witherow did not allege a violation of 42 U.S.C. § 1983 relating to the

grievance cause of action, either in his Second Amended Complaint or in his Motion for Partial

Summary Judgment, and he cites no other legal basis to support his argument, the Court does

not find his argument persuasive. Instead, the Court agrees with Judge Cooke’s findings and

recommendation. Therefore, the Court will accept and adopt in full Judge Cooke’s

recommendation that Defendants’ Motion for Summary Judgment be granted as to Plaintiff

Witherow’s claims against Defendants Henley, Donat, and Helling for denial of his grievances,

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and that Plaintiff Witherow’s Motion for Partial Summary Judgment for the same be denied.

CONCLUSION

After conducting a de novo review of the record, and considering the objections and

arguments of the parties, the Court ACCEPTS and ADOPTS in full Magistrate Judge Valerie

P. Cooke’s Report and Recommendation (ECF No. 222) to the extent that it is not inconsistent

with this opinion.

IT IS HEREBY ORDERED that Magistrate Judge Valerie P. Cooke’s Report and

Recommendation (ECF No. 222) be ACCEPTED and ADOPTED in full, to the extent that it

is not inconsistent with this opinion.

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IT IS FURTHER ORDERED that Plaintiff Witherow’s Motion for Leave to Substitute
Specific Names of Doe Defendants (ECF No. 204) is DENIED.
IT IS FURTHER ORDERED that Plaintiff Witherow’s Motion for Partial Summary
Judgment (ECF No. 205) is DENIED.
IT IS FURTHER ORDERED that Defendants Lea Baker, William Donat, Don Helling,

Brian Henley, and Howard Skolnik’s Motion for Summary Judgment on Plaintiff Evans’ First

Amended Complaint (ECF No. 206) is GRANTED.

IT IS FURTHER ORDERED that Defendants Lea Baker, I. Connally, William Donat,

Don Helling, Brian Henley, and Howard Skolnik’s Motion for Summary Judgment on Plaintiff

Witherow’s Second Amended Complaint (ECF No. 207) is GRANTED, EXCEPT as to

Plaintiff Witherow’s claim that Defendants violated Plaintiff Witherow’s rights under the

Omnibus Crime Control and Safe Streets Act by engaging in extended monitoring of his legal

calls for which summary judgment is DENIED.

DATED this 7th day of March, 2012.

_______________________________
Gloria M. Navarro
United States District Judge

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