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McCoy v. Kansas Department of Corrections

United States District Court, D. Kansas

August 11, 2017

DERON MCCOY, JR., Plaintiff,
v.
KANSAS DEPARTMENT OF CORRECTIONS, et al., Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights complaint pursuant to 42 U.S.C. § 1983. Mr. McCoy alleges that his First and Fourteenth Amendment rights were violated when telephone calls he made to his attorneys were recorded over a five (5) month period. He further alleges a violation of his constitutional rights resulting from a four (4) day delay in receiving mail from his attorneys.

         I. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(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 (1988)(citations omitted).

         To survive the required screening, the plaintiff must plead enough facts “to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). In applying the Twombly standard, the Court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011). While a pro se plaintiff's complaint must be liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se status does not relieve the plaintiff of “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         II. Complaint

         Plaintiff claims the violation of his constitutional rights resulting from two allegedly wrongful occurrences. First, Plaintiff alleges that phone calls with one of his attorneys were recorded starting in March, 2016, while he was housed at Lansing Correctional Facility (“LCF”) and continuing after his transfer to El Dorado Correctional Facility (“EDCF”). According to Plaintiff, he provided his Unit Team Counselor at LCF, S. Peavler, with the necessary documentation to get two telephone numbers approved as belonging to his attorneys. One was the main number for the law firm, and the other was the direct dial number for one of Plaintiff's four attorneys at that firm. Defendant Peavler processed the numbers while Plaintiff was in her office.

         Plaintiff did not need to call his attorneys until after he was transferred to EDCF in June, 2016. Upon making calls, he began to notice that when he called the main number, a recording stated that the call was privileged and would not be recorded, but when he called the direct number for Attorney Alexandra Pratt, a recording stated that the call would be recorded.

         On or about November 1, 2016, Plaintiff submitted an inmate request form to Unit Team Counselor K. Schidler requesting that the calls to Attorney Pratt no longer be recorded and that the recordings of his calls with Ms. Pratt be deleted from the telephone data storage. Plaintiff received a response from Defendant Schidler stating that “it had been taken care of.” Mr. McCoy then called Ms. Pratt to verify that the problem had been fixed, but the recording still said that the call would be recorded.

         On November 18, 2016, Plaintiff submitted a grievance. On or about November 20, Unit Team Member R. Randolph asked to see documentation that Ms. Pratt was Plaintiff's attorney of record. UTM Randolph said that Plaintiff had not previously provided the documentation and that was why the calls with Ms. Pratt had been recorded. Mr. McCoy gave UTM Randolph the documentation while telling him that he had already given it to Defendant Peavler. UTM Randolph contacted Defendant Century Link, and the recording apparently stopped as of November 21, 2016. However, Plaintiff has not received any assurance that the previously recorded privileged calls have been deleted.

         In Count II of the complaint, Plaintiff states that his attorneys sent him documents by Federal Express marked “Attorney Client Communications, ” which were received at EDCF on November 14, 2016. The Fed Ex shipment was not given to Plaintiff until November 18, 2016. When Plaintiff asked Defendant Schidler about the delay, he said the shipment had “just got here.”

         In response to a grievance, Defendant Sapien stated that all Fed Ex shipments are received at the EDCF warehouse and only delivered to the property area for subsequent distribution on Fridays. In Plaintiff's case, his Fed Ex parcel was received at the warehouse on Monday, November 14, and delivered to him on Friday, November 18. The grievance response recommends that Plaintiff inform his attorneys to send items by regular U.S. Mail to avoid delay.

         III. Discussion

         After reviewing Plaintiff's complaint with the standards set out above in mind, the Court finds that certain claims and defendants should be dismissed from this action. The Court further finds that it cannot properly complete the screening of Plaintiff's complaint without additional information.

         A. Interference ...


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