Devlin v. Wells
| Decision Date | 06 August 2021 |
| Docket Number | 21-3083-SAC |
| Court | U.S. District Court — District of Kansas |
| Parties | TODD ANDREW DEVLIN, II, Plaintiff, v. CHRIS WELLS, et al., Defendants. |
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Todd Andrew Devlin, II filed this pro se civil action pursuant to 42 U.S.C. § 1983. Although Plaintiff is now an inmate at El Dorado Correctional Facility, this action arises from events that occurred while he was housed in the Osage County Jail (OCJ). Plaintiff names as defendants Osage County Sheriff Chris Wells, Osage County Undersheriff Scott Brenner, OCJ Administrator Gerry Nitcher, and OCJ Correctional Officers Josh Shepard, Nolan (last name unknown), and Renee (last name unknown). (Doc. 1, p. 13.)
As the factual background for this complaint, Plaintiff alleges that on February 10, 2021, while he was at the OCJ, Defendant Nolan pointed a body camera at him while he was speaking with his attorney on the telephone. Id. at 6. When Plaintiff asked Defendant Nolan why he had done that, Defendant Nolan said it was jail procedure. Id. On February 22, 2021, while participating in court appearance via Zoom, Plaintiff and his attorney used a Zoom breakout room to speak privately. Id. at 7. Plaintiff noticed two cameras in the room at the OCJ recording audio and video of their conversation. Id. When Plaintiff filed a grievance about being recorded, Defendant Nitcher told Plaintiff his attorney had asked to be recorded; Plaintiff's attorney denied making the request. Id. Plaintiff also received conflicting information from individuals not parties to this action about whether the cameras recorded. Id.
In Count I of his complaint, Plaintiff claims that Defendants violated his rights under the First Amendment to the United States Constitution. Id. at 4. In Count II, Plaintiff claims that Defendants violated his rights under the Sixth Amendment. Id. In Count III, Plaintiff claims that Defendants violated his rights under the Fourteenth Amendment. Id. at 5. As supporting facts for each count, Plaintiff merely refers the Court to his factual statement that contains the events detailed above. Id. at 4-5. In his request for relief, Plaintiff seeks declaratory relief, nominal and punitive damages, costs, and injunctive relief in the form of an order directing Defendants to stop recording conversations with attorneys. Id. at 8.
Because Plaintiff is a prisoner, the Court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). When deciding if a complaint “fails to state a claim upon which relief may be granted, ” the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2009)).
The decisions in Twombly and Erickson created a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted). Under the new standard, the Court must determine whether a plaintiff has “nudge[d] his claims across the line from conceivable to plausible.” United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009)(quotation marks and citation omitted). “Plausible” in this context refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, ” then the plaintiff has not met his or her burden. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 550 U.S. at 1974).
Although the Court accepts well-pled factual allegations as true, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” See Smith, 561 F.3d at 1098; Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). And “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” dismissal is appropriate. Twombly, 550 U.S. at 558. The Court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Plaintiff does not elaborate on how Defendants violated his rights under the First Amendment. He does not claim that Defendants prevented him from communicating with his attorney, either by phone or during the Zoom meeting. Rather, the core of Plaintiff's complaint is a perceived or alleged breach of attorney-client privilege. But attorney-client privilege is not protected by the First Amendment unless Plaintiff shows a violation of his right to access the court. See Howell v. Trammell, 728 F.3d 1202, 1222 (10th Cir. 2013) (); Evans v. Moseley, 455 F.2d 1084, 1086-87 (10th Cir. 1972) ( a prisoner's right to correspond with his attorney extends only to issues involving access to courts). Thus, even taking all the allegations in the complaint as true, Plaintiff has failed to state a plausible claim under the First Amendment upon which relief can be granted.
Plaintiff has not alleged facts plausibly showing that the government became privy to his attorney-client communication because of the intrusion. Nor has he alleged that he suffered prejudice from the alleged intrusion. Thus, even taking all the well-pled facts in the complaint as true, Plaintiff has not stated a plausible claim under the Sixth Amendment upon which relief can be granted. See Perry v. Wells, 2021 WL 1089421, at *3 (D. Kan. March 22, 2021) ().
As with his first two counts, Plaintiff does not elaborate on his claim that his Fourteenth Amendment rights were violated. The Court assumes Plaintiff is alleging a violation of his right to due process and a fair trial, but, as noted above, Plaintiff does not allege any prejudice to his legal interests. Misconduct by government officials may constitute a substantive due process violation if it is outrageous enough to shock the conscience. United States v. Kennedy, 225 F.3d 1187, 1194 (10th Cir. 2000).
But Plaintiff has not alleged that the prosecution in his criminal case was privy to the attorney-client conversations he believes were recorded, so the Court concludes Plaintiff has not plausibly alleged a substantive due process violation. See id. at 1195 ().
This action is also subject to dismissal in part because Plaintiff fails to allege facts showing the personal participation of each defendant in the alleged constitutional violation. An essential element of a civil rights claim against an individual is that person's direct personal participation in the acts or inactions upon which the complaint is based....
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