1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES HEAD, No. 2:19-cv-01663-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Charles Head (“Plaintiff”), a federal prisoner proceeding pro se, brings this civil rights 18 action pursuant to 42 U.S.C. § 1983 and an action under 18 U.S.C. § 2520 (“§ 2520”) for 19 violations of 18 U.S.C. § 2511 (“Title III” or “Wiretap Act”) against the County of Sacramento 20 (the “County”) and Kenneth Shelton (“Shelton”) (collectively, “Defendants”).1 The matter was 21 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 22 302. 23 On December 16, 2019, the magistrate judge filed findings and recommendations which 24 were served on all parties and which contained notice to all parties that any objections to the 25 findings and recommendations were to be filed within fourteen days. (ECF No. 13.) The 26 magistrate judge screened the Complaint and recommended through the Findings and 27 1 Plaintiff asserts “Ms. Endrizzi has not been named as a defendant in the complaint.” (ECF 28 No. 16 at 18.) 1 Recommendations that the matter be dismissed without leave to amend because: the Sixth 2 Amendment claim based on a violation of attorney-client privilege was barred by Heck v. 3 Humphrey, 512 U.S. 477, 487 (1994); the Fourteenth Amendment claim for “deliberate 4 indifference” failed as a matter of law because the deliberate indifference standard set forth by the 5 Eight Amendment — and as imputed to the Fourteenth when regarding a pre-trial detainee — did 6 not apply to the search and seizure of any attorney-client communications; Plaintiff’s retaliation 7 claim was time-barred; Plaintiff could not state a claim for conspiracy to violate civil rights under 8 federal law because he failed to state any freestanding claim of a constitutional violation; and any 9 claims against the prosecutor, Ellen Endrizzi (“Endrizzi”), were barred by prosecutorial 10 immunity. (See ECF No. 13.) The Findings and Recommendations also recommended denying 11 Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 4) as 12 moot. Plaintiff filed objections to the findings and recommendations (ECF No. 16) and the 13 County filed a response (ECF No. 18). 14 This Court reviews de novo those portions of the proposed findings of fact to which 15 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 16 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As 17 to any portion of the proposed findings of fact to which no objection has been made, the Court 18 assumes its correctness and decides the motions on the applicable law. See Orand v. United 19 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 20 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 21 Having carefully reviewed the entire file under the applicable legal standards, and good 22 cause appearing, the Court finds that it is appropriate to adopt in part and reject in part the 23 Findings and Recommendations for the reasons stated herein. In Plaintiff’s objections, he 24 correctly argues that the Findings and Recommendations neglects to address Plaintiff’s claim 25 under 18 U.S.C. §§ 2511 and 2520. The Court will address that cause of action and the Motion 26 for Temporary Restraining Order here. 27 / / / 28 / / / 1 I. PLAINTIFF’S § 2520 CLAIM 2 A. Factual Background 3 Plaintiff alleges that while he was in custody in 2009, his attorney-client privileged 4 telephone conversations were recorded and unlawfully distributed by Shelton to Endrizzi, the 5 prosecutor on Plaintiff’s criminal case. (ECF No. 1 at 4.) Plaintiff asserts these recordings were 6 used to his detriment and “injured plaintiff in regards to his criminal defense.” (ECF No. 1 at 5– 7 6.) Plaintiff further alleges he only learned of Shelton’s delivery of Plaintiff’s attorney-client 8 privileged phone call records to Endrizzi as a result of a response to his requests for information 9 pursuant to 5 U.S.C. § 552 in 2019. 10 B. Standard of Law 11 28 U.S.C. § 1915A(a) requires courts to screen complaints brought by prisoners seeking 12 relief against a governmental entity or officer or employee of a governmental entity. Courts are 13 to dismiss the complaint, or any part of the complaint if it “is frivolous, malicious, or fails to state 14 a claim upon which relief may be granted.” 28 U.S.C. § 1915A9(b)(1). In order to avoid 15 dismissal, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its 16 face.” Iqbal, 556 U.S. at 697 (quoting Twombly, 550 U.S. at 570). A pleading is insufficient if it 17 offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 19 elements of a cause of action, supported by mere conclusory statements, do not suffice.”). 20 However, a court must give the plaintiff the benefit of every reasonable inference to be 21 drawn from the “well-pleaded” allegations of the complaint. Retail Clerks Int’l Ass'n v. 22 Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege “‘specific facts’ beyond 23 those necessary to state his claim and the grounds showing entitlement to relief.” Twombly, 550 24 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows 25 the court to draw the reasonable inference that the defendant is liable for the misconduct 26 alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)). 27 / / / 28 / / / 1 C. Analysis 2 The Wiretap Act makes it unlawful to intercept any wire, oral, or electronic 3 communication except as specified in that section. 18 U.S.C. § 2511. Further, § 2520 creates a 4 private cause of action for individuals who are victims of an unlawful wiretap and imposes 5 statutory damages. 18 U.S.C. § 2520.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES HEAD, No. 2:19-cv-01663-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Charles Head (“Plaintiff”), a federal prisoner proceeding pro se, brings this civil rights 18 action pursuant to 42 U.S.C. § 1983 and an action under 18 U.S.C. § 2520 (“§ 2520”) for 19 violations of 18 U.S.C. § 2511 (“Title III” or “Wiretap Act”) against the County of Sacramento 20 (the “County”) and Kenneth Shelton (“Shelton”) (collectively, “Defendants”).1 The matter was 21 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 22 302. 23 On December 16, 2019, the magistrate judge filed findings and recommendations which 24 were served on all parties and which contained notice to all parties that any objections to the 25 findings and recommendations were to be filed within fourteen days. (ECF No. 13.) The 26 magistrate judge screened the Complaint and recommended through the Findings and 27 1 Plaintiff asserts “Ms. Endrizzi has not been named as a defendant in the complaint.” (ECF 28 No. 16 at 18.) 1 Recommendations that the matter be dismissed without leave to amend because: the Sixth 2 Amendment claim based on a violation of attorney-client privilege was barred by Heck v. 3 Humphrey, 512 U.S. 477, 487 (1994); the Fourteenth Amendment claim for “deliberate 4 indifference” failed as a matter of law because the deliberate indifference standard set forth by the 5 Eight Amendment — and as imputed to the Fourteenth when regarding a pre-trial detainee — did 6 not apply to the search and seizure of any attorney-client communications; Plaintiff’s retaliation 7 claim was time-barred; Plaintiff could not state a claim for conspiracy to violate civil rights under 8 federal law because he failed to state any freestanding claim of a constitutional violation; and any 9 claims against the prosecutor, Ellen Endrizzi (“Endrizzi”), were barred by prosecutorial 10 immunity. (See ECF No. 13.) The Findings and Recommendations also recommended denying 11 Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 4) as 12 moot. Plaintiff filed objections to the findings and recommendations (ECF No. 16) and the 13 County filed a response (ECF No. 18). 14 This Court reviews de novo those portions of the proposed findings of fact to which 15 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 16 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As 17 to any portion of the proposed findings of fact to which no objection has been made, the Court 18 assumes its correctness and decides the motions on the applicable law. See Orand v. United 19 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 20 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 21 Having carefully reviewed the entire file under the applicable legal standards, and good 22 cause appearing, the Court finds that it is appropriate to adopt in part and reject in part the 23 Findings and Recommendations for the reasons stated herein. In Plaintiff’s objections, he 24 correctly argues that the Findings and Recommendations neglects to address Plaintiff’s claim 25 under 18 U.S.C. §§ 2511 and 2520. The Court will address that cause of action and the Motion 26 for Temporary Restraining Order here. 27 / / / 28 / / / 1 I. PLAINTIFF’S § 2520 CLAIM 2 A. Factual Background 3 Plaintiff alleges that while he was in custody in 2009, his attorney-client privileged 4 telephone conversations were recorded and unlawfully distributed by Shelton to Endrizzi, the 5 prosecutor on Plaintiff’s criminal case. (ECF No. 1 at 4.) Plaintiff asserts these recordings were 6 used to his detriment and “injured plaintiff in regards to his criminal defense.” (ECF No. 1 at 5– 7 6.) Plaintiff further alleges he only learned of Shelton’s delivery of Plaintiff’s attorney-client 8 privileged phone call records to Endrizzi as a result of a response to his requests for information 9 pursuant to 5 U.S.C. § 552 in 2019. 10 B. Standard of Law 11 28 U.S.C. § 1915A(a) requires courts to screen complaints brought by prisoners seeking 12 relief against a governmental entity or officer or employee of a governmental entity. Courts are 13 to dismiss the complaint, or any part of the complaint if it “is frivolous, malicious, or fails to state 14 a claim upon which relief may be granted.” 28 U.S.C. § 1915A9(b)(1). In order to avoid 15 dismissal, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its 16 face.” Iqbal, 556 U.S. at 697 (quoting Twombly, 550 U.S. at 570). A pleading is insufficient if it 17 offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 19 elements of a cause of action, supported by mere conclusory statements, do not suffice.”). 20 However, a court must give the plaintiff the benefit of every reasonable inference to be 21 drawn from the “well-pleaded” allegations of the complaint. Retail Clerks Int’l Ass'n v. 22 Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege “‘specific facts’ beyond 23 those necessary to state his claim and the grounds showing entitlement to relief.” Twombly, 550 24 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows 25 the court to draw the reasonable inference that the defendant is liable for the misconduct 26 alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)). 27 / / / 28 / / / 1 C. Analysis 2 The Wiretap Act makes it unlawful to intercept any wire, oral, or electronic 3 communication except as specified in that section. 18 U.S.C. § 2511. Further, § 2520 creates a 4 private cause of action for individuals who are victims of an unlawful wiretap and imposes 5 statutory damages. 18 U.S.C. § 2520. Section 2520(g) specifies that “[a]ny willful disclosure or 6 use by an investigative or law enforcement officer or governmental entity of information beyond 7 the extent permitted by section 2517 is a violation of this chapter for purposes of section 8 2520(a).” 9 Based on the facts alleged, Plaintiff’s § 2520 claim is barred, in part, by Heck v. 10 Humphrey, 512 U.S. 477, 487 (1994), insofar as he is attempting to invalidate his underlying 11 conviction. See Apampa v. Layng, 157 F.3d 1103, 1105 (7th Cir. 1998) (finding Heck “fully 12 applicable to Title III”). Under Heck, a plaintiff cannot bring a cause of action for damages that 13 would necessarily render a conviction or sentence invalid without first proving that the conviction 14 had been invalidated. Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). 15 Therefore, Plaintiff cannot bring an action under § 2520 if that action would invalidate his federal 16 conviction. However, Heck allows an action to proceed if the action will not “necessarily imply 17 that the plaintiff’s conviction was unlawful” and the plaintiff alleges he suffered “actual, 18 compensable injury” which does not include the “‘injury’ of being convicted and imprisoned.” 19 Heck, 512 U.S. at 487 n.7; Trimble, 49 F.3d at 585; see Apampa, 157 F.3d at 1105. Here, it is 20 plausible that, even if the attorney-client privileged communications were not used at Plaintiff’s 21 trial, his conviction would not be invalidated given the presence of other evidence. See Apampa 22 v. Layng, 157 F.3d at 1105. Additionally, because § 2520 provides statutory civil damages for 23 violations of the Wiretap Act, Plaintiff is able to allege “actual, compensable injury” other than 24 his conviction and sentence. Trimble, 49 F.3d at 585 (quoting Heck, 512 U.S. at 487 n.7). 25 Therefore, because Plaintiff can recover monetary damages under this statute and because the 26 resolution of his claim would not necessarily invalidate his underlying conviction, Plaintiff may 27 bring a § 2520 claim. 28 / / / 1 Next, the Court must determine if any of the named Defendants are immune to suit under 2 this statute. The Court first considers whether the County is potentially liable. Courts are split as 3 to whether a municipality can be subject to a § 2520 suit. Compare Adams v. City of Battle 4 Creek, 250 F.3d 980, 985–86 (6th Cir. 2001) (holding that municipalities are generally amenable 5 to suit under § 2520), with Seitz v. City of Elgin, 719 F.3d 654, 657–58 (7th Cir. 2013) (holding 6 municipalities cannot be sued under § 2520)). This court finds the Seventh Circuit’s analysis 7 persuasive and follows the Central District Court of California in adopting Seitz’s holding. See 8 Federated Univ. Police Officers' Ass'n v. Regents of Univ. of California, No. SACV 15-00137- 9 JLS-, 2015 WL 13273308, at *8 (C.D. Cal. July 29, 2015). Therefore, the County cannot be 10 included in Plaintiff’s § 2520 suit and this cause of action is dismissed as to the County without 11 leave to amend. 12 Regarding Shelton’s liability, Plaintiff alleges Shelton “unlawfully provid[ed] Endrizzi 13 with plaintiff’s attorney-client privileged communications including records of plaintiff’s 14 recorded jail calls.” (ECF No. 1 at 4.) The Wiretap Act prohibits the interception and disclosure 15 of wire, oral, or electronic communications, 18 U.S.C. §§ 2511(a) and 2511(c), and is generally 16 accepted to apply to prisons and jails. See, e.g., United States v. Van Poyck, 77 F.3d 285, 291 17 (9th Cir. 1996); United States v. Feekes, 879 F.2d 1562, 1565 (7th Cir. 1989); United States v. 18 Amen, 831 F.2d 373, 378 (2d Cir. 1987). Additionally, federal regulations prohibit officers from 19 recording meetings between attorneys and prison inmates except under narrow circumstances that 20 do not appear in the factual allegations herein. See 28 C.F.R. §§ 543.13(e), 501.3(d). Here, 21 Plaintiff claims his calls were recorded while he was in custody and Shelton disclosed his 22 attorney-client privileged phone calls to Endrizzi. As the Wiretap Act expressly prohibits such 23 actions, it is plausible that Shelton could be found liable based on the alleged facts. 18 U.S.C. § 24 2511(1)(c); § 2520(g); see Conner v. Tate, 130 F. Supp. 2d 1370, 1379 (N.D. Ga. 2001). 25 Therefore, Plaintiff has stated a claim under § 2520 against Shelton. 26 Accordingly, the Findings and Recommendations are rejected to the extent that it 27 recommends the dismissal of the case in its entirety. 28 / / / 1 II. MOTION FOR TEMPORARY RESTRAINING ORDER 2 Plaintiff moves the Court to impose a temporary restraining order and preliminary 3 injunction compelling Defendants to preserve evidence pending the “disposition of the 4 complaint.” (ECF No. 4 at 4.) “A party must preserve evidence it knows or should know is 5 relevant to a claim or defense of any party, or that may lead to the discovery of relevant 6 evidence.” Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051 7 (S.D. Cal. 2015); see also United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 8 2002). Should a party violate this duty, the Court has the power to impose sanctions. Fed. R. 9 Civ. P. 37(b)(2)(A). However, an additional order requiring the preservation of evidence may be 10 appropriate considering: “(1) concerns for the continuing existence and maintenance of the 11 integrity of the evidence in question; (2) any irreparable harm likely to result to the party seeking 12 the preservation of the evidence; and (3) the capability of an individual, entity, or party to 13 maintain the evidence sought to be preserved.” Cutera, Inc. v. Lutronic Aesthetics, Inc., No. 14 2:20-CV-00235-KJM-DB, 2020 WL 1234551, at *9 (E.D. Cal. Mar. 13, 2020) (internal citations 15 and quotations omitted). 16 Here, Plaintiff asserts that Defendants may destroy electronically stored records “pursuant 17 to custom or policy upon service of other notification of plaintiff’s complaint.” (ECF No. 4-2 at 18 3.) However, Rule 37(e) requires parties to ensure electronically stored information is preserved 19 and allows the Court to impose significant sanctions if that information is lost. Plaintiff has not 20 provided information regarding the factors described above that would necessitate a further order 21 requiring the preservation of evidence. As such, Plaintiff’s Motion for Temporary Restraining 22 Order is DENIED. 23 III. CONCLUSION 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The Findings and Recommendations filed December 16, 2019 (ECF No. 13), are 26 adopted in part and rejected in part as follows: 27 a. Plaintiff’s Sixth Amendment claim based on a violation of attorney-client 28 privilege, Fourteenth Amendment claim for “deliberate indifference”, retaliation 1 claim, and claim for conspiracy to violate civil rights under federal law are 2 DISMISSED without leave to amend; 3 b. Plaintiff’s claim against the County pursuant to 18 U.S.C. § 2520 is 4 DISMISSED without leave to amend; 5 c. Plaintiff’s suit may proceed on his claim against Shelton pursuant to 18 U.S.C. 6 § 2520; and 7 d. Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction 8 is DENIED. 9 IT IS SO ORDERED. 10 DATED: June 22, 2020 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28