Opinion
6:20-cv-00636-AR
06-08-2023
DERRICK DEAN COFFELT, Plaintiff, v. KATHARINE R. SEMPLE, Defendant.
FINDINGS AND RECOMMENDATION
Jeff Armistead, United States Magistrate Judge
Plaintiff Derrick Dean Coffelt, held in custody at the Snake River Correctional Institution and representing himself, brings this 42 U.S.C. § 1983 civil rights action against Katherine R. Semple,who is a Marion County Assistant District Attorney. Coffelt alleges that Semple violated his constitutional rights regarding two phone calls that Coffelt had with his family and attorney while in custody at Marion County Jail. Am. Compl., ECF No. 15. Currently before the court is Coffelt's Motion for Partial Summary Judgment (Pl.'s Mot. Part. Summ. J. (“Pl.'s Mot.”), ECF No. 55) and Semple's Motion for Summary Judgment (Def.'s Mot. Summ. J. (“Def's Mot”), ECF No. 61). The court recommends DENYING Coffelt's motion for partial summary judgment (ECF No. 55) and GRANTING Semple's motion for summary judgment (ECF No. 61).
PROCEDURAL HISTORY
Coffelt filed an amended complaint on November 30, 2020, alleging that Semple violated his rights in relation to criminal charges against him and the revocation of his bail in another pending criminal case (first claim); Coffelt also alleged that Semple violated his rights in relation to two phone call he had with his family and attorney while in custody (second claim). See Am. Compl. 5-6, ECF No. 15. On February 1, 2021, Semple filed a partial motion to dismiss Coffelt's first claim based on prosecutorial immunity. Def.'s Part. Mot. Dismiss, ECF No. 18. On July 14, 2022, the court granted Semple's partial motion to dismiss (ECF No. 18) and allowed this action to proceed only as to Coffelt's second claim. See Coffelt v. Semple, No. 6:20-CV-00636-AR, 2022 WL 2755112, at *1 (D. Or. July 14, 2022).
On November 10, 2022, Coffelt filed a motion for partial summary judgment (ECF No. 55) that included a supporting declaration, exhibits, and a statement of undisputed facts. See ECF Nos. 56 and 57. Semple filed a motion for summary judgment on January 13, 2023 (ECF No. 61), along with supporting declarations and exhibits. See Decl. of Craig Johnson (“Johnson Decl.”), ECF No. 62; Decl. of Matt Davis (“Davis Decl.”), ECF No. 63; Decl. of Debra Seeck (“Seeck Decl.”), ECF No. 64; and Decl. of Katharine Semple (“Semple Decl.”), ECF No. 65. On January 17, 2023, the court issued the following notice to Coffelt:
The defendants have made a motion for summary judgment (Motion for Summary Judgment [61]) by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no dispute of material fact-that is, if there is no real dispute about any fact that would affect the result of your case-and the party who asked for summary judgment is entitled to judgment as a matter of law. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials, as provided in Rule 56(c), show that there is a genuine dispute of material fact for trial. If you do not submit your own evidence in opposition, summary judgment if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.Summ. J. Advice Notice, ECF No. 73.
Both Coffelt and Semple filed a response in opposition to the other party's summary judgment motion with supporting documentation. See Pl.'s Br. Opp. Def.'s Summ. J. Mot. (“Pl.'s Br. Opp.”), ECF No. 76 (with attachments), and Decl. Derrick Coffelt in Opp. Def.'s Mot. Summ. J., ECF No. 77; see also, Def.'s Resp. Pl.'s Mot. Part. Summ. J. (“Def.'s Resp.”), ECF No. 67; Johnson Decl., ECF No. No. 68; Davis Decl., ECF No. 69; Seeck Decl., ECF No. 70; and Semple Decl., ECF No. 71.
Regarding Coffelt's claim against Semple, the following facts are based on evidence submitted by both parties and are not in dispute unless otherwise noted.
FACTUAL BACKGROUND
On August 24, 2019, Coffelt was placed in custody in Marion County Jail (“MCJ”) as a pretrial detainee based on criminal charges that the state-with Semple as the prosecutor- brought against him in Oregon Case No. 19CR56101. Statement Undisputed Facts ¶ 1, ECF No. 57. Criminal defense attorney Paul Ferder represented Coffelt in Case No. 19CR56101. Id. at ¶ 2.
On September 23, 2019, Coffelt remained in custody at MCJ and placed two consecutive telephone calls from MCJ to his brother, Geoffrey Coffelt (“Geoffrey”). Seeck Decl. ¶ 3, ECF No. 64. At a later date, Debra Seeck, a trial investigator with the Oregon Department of Justice (“Oregon DOJ”), investigated Coffelt's two telephone calls and determined that both calls included four individuals: Coffelt from MCJ; Geoffrey by direct call; Coffelt's mother, Paula Coffelt (“Paula”) by Geoffrey's speaker phone; and attorney Christopher Casebeer (“Casebeer”) by direct call. Id. at ¶¶ 3-5. Coffelt explains that Casebeer “represented the interests of [Coffelt's] family . . . [regarding] custody of [his] children.” Pl.'s Resp. to Req. for Admiss. (“Pl.'s Resp. RFA”) 3, ECF No. 66; see also Am. Compl. Ex. B at 1, ECF No. 15 (letter from Casebeer to Coffelt dated February 2, 2020, stating, “I currently represent you in custody matter . . . Case No. 10C32708”).
Matt Davis (“Davis”), a sergeant with Marion County Sheriff's Office (“MCSO”), submitted a declaration in which he explains that “IC Solutions” manages and operates telephone communications at MCJ for adults in custody (“AICs”). Davis Decl. ¶ 4, ECF No. 63. Davis states that “[a]ll AIC phone calls are monitored, recorded and may be shared with law enforcement, with a few exceptions” related to telephone communications between AICs and their attorneys. Id. at ¶ 10. According to Davis, “detailed instructions” on how to use the phone system at MCJ “are posted by all the phones in all [MCJ] units.” Id. at ¶ 5. The “Facility Phone Rules . . . are posted and available to all AICs” and include the following statement: “Every phone call IS recorded. It is stated on a recording, at the beginning of every call.” Id. Ex. 3 at 2 (emphasis in original). The MCJ [AIC] Handbook that was operative in 2019 stated, “[a]ll [AIC] phone calls are monitored, recorded and may be shared with law enforcement.” Id. Ex. 4 at 6.
Regarding telephone calls between AICs and their attorneys, MCJ has “red phones . . . for attorneys to call in to their clients.” Davis Decl. ¶ 9. Those calls are not recorded, and no recording announcement is made at the beginning of calls placed to an AIC through a red phone. Id. Additionally, “[a]ttorneys can register their number with IC Solutions”, and “if an AIC calls a number that is registered as an attorney telephone number, no automated message about phone calls being recorded is placed and the phone call is not recorded.” Id. at ¶ 11.
The parties agree that MCJ and IC Solutions recorded the two phone calls that Coffelt had with Geoffrey, Paula, and Casebeer on September 23, 2019. The transcript of each telephone call shows that, after Coffelt placed each call, a pre-recorded message stated, “the time limit is 20 minutes....This call will be recorded and subject to monitoring at any time....You may begin speaking.” Johnson Decl. Ex. 1 at 2 and Ex. 2 at 2, ECF No. 62 (transcript of both Coffelt telephone calls to Geoffrey on September 23, 2019). Later that day, on September 23, 2019, Semple “listened to a portion” of one of the phone calls Coffelt had with Geoffrey, Paula, and Casebeer. Semple Decl. ¶ 3, ECF 65.
Several months later, on February 5, 2020, Casebeer sent Coffelt a letter explaining that Oregon DOJ had contacted Casebeer regarding a statement he made during his phone calls with Coffelt, Geoffrey, and Paula on September 23, 2019. Am. Compl. Ex. B at 1, ECF No. 15. Casebeer told Coffelt that “[t]he DOJ is questioning whether [the] exchange constitutes witness tampering” and informed him, “[w]hile I do not believe that my conduct was inappropriate, several issues arise from this inquiry.” Id. at 2. Casebeer explained the potential conflict of interest that had arisen, urged Coffelt to consult counsel, and told him, “you should carefully consider this information when deciding whether to allow me to continue to represent you.” Id.
Based on the facts above, Coffelt brings this action against Semple, alleging as follows:
On 9/23/19 I had placed a phone call to my lawyer Chris Casebeer while incarcerated for case no. 19CR56101. Marion County Deputy District Attorney Katharine Semple listened to this phone call violating my constitutional rights of Due Process guaranteed under the 14th Amendment of the U.S. Constitution. She used this phone call to press charges of tampering with a witness on my lawyer. The rights violated are clearly established and Ms. Semple is personally responsible. This action shows a blatantly reckless and calloused indifference to my rights. In addition, this violates the Oregon Work Product Doctrine as well as my attorney client privilege.Am. Compl. 6, ECF No. 15.
LEGAL STANDARDS
Summary judgment is appropriate where the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party must establish the absence of genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party establishes the absence of a genuine issue of material fact, the nonmoving party can only defeat summary judgment by going beyond the allegations in the complaint to demonstrate a genuine issue for trial. Id. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment thus should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
To determine whether summary judgment is proper, the court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). However, deference to the nonmoving party has limits. “Mere allegations or denials” are insufficient to meet the nonmoving party's burden to show a genuine issue of material fact to defeat a motion for summary judgment. Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). Therefore, where “the record taken as a whole could not lead to a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted).
The court construes a pro se litigant's filings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se party involved in civil litigation, however, is held to the same standards in responding to a motion for summary judgment and “should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). Additionally, “[i]t is not the district court's job to sift through the record to find admissible evidence in support of a non-moving party's case.” Claar v. Burlington N.R.R., 29 F.3d 499, 504 (9th Cir. 1994) (citing Celotex, 477 U.S. at 324). Therefore, when a plaintiff makes assertions but does not identify specific evidence in the record to support those assertions, the court is not required to search for that evidence. See F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (citations omitted) (“A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment.”).
DISCUSSION
A. Coffelt's Claims Against Semple
1. Civil Rights Claims
Coffelt broadly alleges that Semple violated his right to due process under the Fourteenth Amendment regarding his two phone calls on September 23, 2019; he also cites the Fifth Amendment-albeit without discussion. See Am. Compl. 5-6, ECF No. 15. Coffelt further alleges violations of his rights under the Fourth Amendment and Sixth Amendment. See Pl.'s Br. Opp. 4-5, ECF No. 76. However, “the Supreme Court has held that plaintiffs cannot ‘double up' on constitutional claims in this way[.]” Ramirez v. Butte-Silver Bow Cnty., 298 F.3d 1022, 1029 (9thCir. 2002) (citing Graham v. Connor, 490 U.S. 386, 394-95 (1989)). As the Ninth Circuit explained the holding in Graham, “[w]here a claim can be analyzed under ‘an explicit textual source' of rights in the Constitution, a court may not assess the claim under another, ‘more generalized,' source.” Ramirez, 298 F.3d at 1029 (quoting Graham, 490 U.S. at 395).
Here, Coffelt appears to allege violations of his right to substantive due process under the Fifth and Fourteenth Amendments, but he does not elaborate and does not explain the legal basis for those purported claims. In contrast, he alleges that the “invasion of attorney-client privilege may also be viewed as an unreasonable search under the Fourth Amendment,” Pl.'s Br. Opp. 4, and that criminal defendants “are additionally protected by the Sixth Amendment right to effective assistance of counsel.” Id. at 5. Thus, the Fourth and Sixth Amendments provide “an explicit textual source of constitutional protection against [the] sort of . . . intrusive government conduct” that Coffelt alleges. See Graham, 490 U.S. at 395. Therefore, to the extent that Coffelt alleges violations of his right to due process, the court recommends that those claims be dismissed, and proceeds to discuss only Coffelt's Fourth and Sixth Amendment claims. See id. (declining to analyze the plaintiff's claims under “the more generalized notion of ‘substantive due process[]” because the Fourth Amendment “provide[d] an explicit textual source” for his claims); see also Jayne v. Bosenko, No. 2:08-CV-02767-MSB, 2014 WL 2801198, at *8 (E.D. Cal. June 19, 2014), on reconsideration in part, 2016 WL 3213552 (E.D. Cal. June 9, 2016) (noting the plaintiff's allegation that a jail improperly recorded and listened to his phone calls to his attorney, and, citing Graham and Ramirez, dismissing his due process claims because “the Fourth Amendment's prohibition on unreasonable searches and seizures and the Sixth Amendment's guarantee of counsel” provided an “‘explicit textual source' of rights”).
2. Claim Regarding Oregon DOJ's Communications with Casebeer
Coffelt also alleges that Semple “used” his recorded phone calls “to press charges of tampering with a witness on my lawyer.” Am. Compl. 6. Semple admits that she “listened to a portion” of one of the phone calls Coffelt made on September 23, 2019, Semple Decl. ¶ 3, and does not dispute that Casebeer, Coffelt's attorney, received a letter from Oregon DOJ in February 2020 about possible “witness tampering” based on a statement Casebeer allegedly made during one of his phone calls with Coffelt. See Am. Compl. Ex. B at 1. Viewing the evidence in the light most favorable to Coffelt, it is reasonable to infer that Semple shared part of the contents of one of Coffelt's telephone calls with Oregon DOJ. However, there is no evidence that Casebeer was, in fact, charged with any form of misconduct. Moreover, even if Casebeer had been charged, Coffelt does not explain how that event would give rise to a cause of action against Semple. Thus, to the extent that Coffelt seeks to assert a claim against Semple based on the letter Casebeer received from Oregon DOJ, those claims should be dismissed.
B. Semple's Motion for Summary Judgment
Semple argues that she is entitled to summary judgment on Coffelt's Fourth Amendment claim because, (1) “the phone calls were not protected by attorney-client privilege”, and (2) “[Coffelt] had no reasonable expectation of privacy in the phone calls or alternatively consented to being recorded and monitored.” Def.'s Mot. 2. Regarding Coffelt's Sixth Amendment claim, Semple argues that “[t]here is no 6th Amendment violation as [Coffelt] has not alleged and cannot prove that Mr. Casebeer was his criminal attorney[.]” Id.
1. Fourth Amendment Claim
The Supreme Court set forth a two-part inquiry for determining whether a warrantless search violates the Fourth Amendment. “[F]irst, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Katz v. United States, 389 U.S. 347, 360-61 (1967)); see also Kyllo v. United States, 533 U.S. 27, 33 (2001) (“[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”). “Only if both the subjective and objective tests are met can we find that a Fourth Amendment interest has been violated.” United States. v. Sandoval, 200 F.3d 659, 660 (9th Cir. 2000).
The government's warrantless interception or surveillance of a person's phone calls can constitute a Fourth Amendment violation. See Katz, 389 U.S. at 353. However, “the Fourth Amendment . . . is not triggered by the routine taping of [outbound calls]” made by individuals who are incarcerated. United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996). In Van Poyck, the plaintiff, a pretrial detainee, alleged that a federal detention center violated his rights by recording his outgoing telephone calls, but the Ninth Circuit held that, “any expectation of privacy in outbound calls from prison is not objectively reasonable.” Id. The court noted that the plaintiff “knew of” the detention center's policy of taping outbound phone calls before he placed his first call and remarked, “[i]f he knew [the detention center] was listening, it is hard to believe he thought his calls were private.” Id. at 290. The court concluded that “no [AIC] should reasonably expect privacy in his outbound telephone calls[,]” id. at 290-91, while noting that “[its] analysis does not apply to ‘properly placed' calls between a defendant and his attorney”- which the detention center did not monitor or record. Id. at 291 n.9.
As the Ninth Circuit alluded to in Van Poyck, communications protected by attorney-client privilege may give rise to a reasonable expectation of privacy. See id. In DeMassa v. Nunez, 770 F.2d 1505, 1506 (9th Cir. 1985), the Ninth Circuit specifically addressed whether a client's “expectation of privacy in their attorney's files . . . is the kind of expectation that society is prepared to recognize as ‘reasonable.'” id. (citing Hudson v. Palmer, 468 U.S. 517, 525 (1984) (quoting Katz, 389 U.S. at 360-61 (1967)). There, the court observed that “[i]t is axiomatic that the attorney-client privilege confers upon the client an expectation of privacy in his or her confidential communications with the attorney.” id. (emphasis in original). Therefore, the court held, “clients of an attorney maintain a legitimate expectation of privacy in their client files.” id.
Here, Coffelt emphasizes that his attorney, Casebeer, participated in the phone calls on September 23, 2019, and argues that “invasion of attorney-client privilege may be viewed as an unreasonable search under the Fourth Amendment.” Pl.'s Br. Opp. 5, ECF No. 75. Semple argues that Coffelt “voluntarily disclosed any privileged information-which constitutes waiver of the privilege.” Def.'s Mot. 9, ECF No. 61.
Coffelt also alleges a “violation of [his] attorney-client privilege” based on MCJ recording his two phone calls and Semple allegedly listening to them. See Coffelt Decl. 1, ECF No. 77. To the extent that Coffelt asserts an independent civil rights violation based on attorney-client privilege, such a claim is non-cognizable under Section 1983. See Evans v. Skolnik, 997 F.3d 1060, 1069 (9th Cir. 2021) (noting that the Ninth Circuit has “‘made clear'” that, “‘[s]tanding alone, the attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional right'”) (quoting Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992)).
In a factually analogous case, United States v. Chaiban, No. 206CR-00091-RLH-PAL, 2007 WL 437704 (D. Nev. Feb. 2, 2007), report and recommendation adopted, 2007 WL 923585 (D. Nev. Mar. 23, 2007), the plaintiff alleged that the “the government violated his attorney-client privilege by monitoring and recording . . . phone calls” that he had placed to his attorney while incarcerated at two detention centers as a pretrial detainee. id. at *19. The district court first noted that, “[t]he party asserting the attorney-client privilege has the burden of proving the attorney-client privilege applies.” id. (citing Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981)). The court also explained that “‘the asserting party must prove . . . that it has not waived the privilege.'” id. (quoting Weil, 647 F.2d at 25). Further, “[i]t is well established that ‘voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject.'” id. (quoting Weil, 647 F.2d at 24).
The district court in Chaiban held that the plaintiff's telephone calls to his attorney “were not privileged.” 2007 WL 437704, at *21. The court explained that, “notice [that] conversations may be monitored or recorded destroys any expectation of privilege[,]” and noted that the plaintiff did not meet “his burden of establishing that he did not waive the attorney-client privilege by engaging in conversations he was on notice were subject to being monitored and recorded.” Id. The district court pointed out that both detention centers “provide[d] clear and unequivocal notices to [AIC]s that their calls may be monitored or recorded[]” through extensive signage and “verbal notice at the beginning of each call made which advise[d] both the caller and the recipient . . . that the calls may be monitored or recorded.” Id. at *20. The district court emphasized that the detention centers did not record “calls to attorney numbers registered with the facility's telephone carrier” or “calls placed from the ‘legal phones' used for calls between [AIC]s and the State and Federal Public Defender's Office.” id. The plaintiff, however, did not call a number that was registered as an attorney telephone number or use a “legal phone.” Rather, he used a regular phone line and “continued to talk to [his attorney]”-despite being “on notice that their conversations were subject to being monitored and recorded.” id. at *21. Thus, the court concluded, the plaintiff “could not reasonably have expected that their conversations would be confidential.” id. at *20.
Here, Coffelt likewise could not have reasonably expected that his phone conversations with Geoffrey, Paula, and his attorney, Casebeer, were confidential or protected by attorneyclient privilege. See id. Like the detention centers in Chaiban, MCJ provided Coffelt with multiple forms of notice that his phone calls on September 23, 2019, were being monitored and recorded. A recorded message informed Coffelt at the start of each call that, “[t]his call will be recorded and subject to monitoring at any time[.]” Johnson Decl. Exs. 1 and 2, ECF No. 62. Coffelt, in fact, concedes that “the standard procedure is to record all phone calls in [MCJ]” and “notification is given at the beginning of each call”-and he does not deny that he heard the recording when he made each phone call. Pl.'s Resp. RFA 1, ECF 66. Furthermore, Sgt. Davis of MCSO explains that “Facility Phone Rules . . . are posted and available to all AICs” and include the following statement: “Every phone call IS recorded. It is stated on a recording, at the beginning of every call.” Id. Ex. 3 at 2 (emphasis in original). Lastly, the MCJ [AIC] Handbook that was operative in 2019 stated, “[a]ll [AIC] phone calls are monitored, recorded and may be shared with law enforcement.” Id. Ex. 4 at 6.
Coffelt does not dispute Semple's evidence, and he does not claim that he did not read or understand MCJ's phone policies regarding MCJ's practice of monitoring and recording outgoing phone calls placed by AICs. Thus, the evidence demonstrates that Coffelt “knew of” MCJ's policy of recording all outgoing calls and was warned by a recorded message that both phone calls were being recorded. See Van Poyck, 77 F.3d at 290 (noting that the plaintiff “knew of” the detention center's phone policy and remarking, “[i]f he knew [the detention center] was listening, it is hard to believe he thought his calls were private.”). Therefore, as the district court concluded in Chaiban, Coffelt's phone calls on September 23, 2019 “were not privileged” because the multiple forms of notice “destroy[ed] any expectation of privilege” and because Coffelt continued to speak to his family and attorney despite receiving that notice. See 2007 WL 437704, at *20-21.
The court recognizes that the Ninth Circuit excluded “‘properly placed' telephone calls between a defendant and his attorney” from its central holding in Van Poyck that, “no prisoner should reasonably expect privacy in his outbound telephone calls.” 77 F.3d at 291; id. at n.9. Here, however, the evidence does not show that Coffelt “placed” either of his two phone calls on September 23, 2019, to Casebeer-who is Coffelt's attorney in a child custody case-let alone “properly.” In fact, Coffelt initiated both phone calls by calling his brother, Geoffrey, and Casebeer called Geoffrey and joined the conversation, apparently by conference call. See Seeck Decl. ¶¶ 3-5. If Coffelt had called a number that was “registered as an attorney telephone number[,]” there would have been “no automated message about phone calls being recorded” and the phone call would not have been recorded. Davis Decl. ¶ 11. However, like the plaintiff in Chaiban, Coffelt did not do so. Moreover, had Coffelt asked Casebeer to call him on one of the red phones that MCJ designated “for attorneys to call in to their clients[,]” id. at ¶ 9, his phone conversations would not have been recorded-according to MCJ phone policies, see id.
In sum, viewing the evidence in the light most favorable to Coffelt, Semple is entitled to summary judgment on Coffelt's Fourth Amendment claim because no reasonable jury could find that Coffelt had a reasonable expectation of privacy in the phone calls he made on September 23, 2019. Coffelt's phone conversations were not protected by attorney-client privilege, see Chaiban, 2007 WL 437704 at *21, and he asserts no other grounds on which a reasonable jury could find that he reasonably expected that his phone conversations would not be monitored or recorded. Semple is therefore entitled to summary judgment on Coffelt's Fourth Amendment claim. See Espinoza v. City of Tracy, No. CV 15-751 WBS KJN, 2018 WL 2318335, at *6 (E.D. Cal. May 22, 2018) (granting the defendant summary judgment on Fourth Amendment claim where there was “no genuine issue of material fact as to whether [the] plaintiff had a reasonable expectation of privacy in his cell phone.”).
2. Sixth Amendment Claim
Semple is also entitled to summary judgment on Coffelt's Sixth Amendment claim. The Sixth Amendment guarantees the “Assistance of Counsel” in “all criminal prosecutions.” U.S Const. amend VI. However, “the Sixth Amendment does not govern civil cases.” Turner v. Rogers, 564 U.S. 431, 441 (2011); see also Wolff v. McDonnell, 418 U.S. 539, 576 (1974) (the Sixth Amendment's “reach is only to protect the attorney-client relationship from intrusion in the criminal setting”). Here, although Coffelt was in custody at MCJ on criminal charges, the transcript of his phone calls on September 23, 2019, shows that the phone calls did not include his criminal defense attorney and were not related to the criminal charges against him. See Johnson Decl. Ex. 1 at 2 and Ex. 2 at 2, ECF No. 62 (transcript of both Coffelt telephone calls to Geoffrey on September 23, 2019). Rather, Coffelt spoke to his brother, his mother, and his attorney, Casebeer, about a civil matter regarding the custody of Coffelt's children. See id. Semple is therefore entitled to summary judgment on Coffelt's Sixth Amendment claim. See Evans v. Gower, No. 2:17-CV-01162-MK, 2022 WL 3226968, at *10 (D. Or. Aug. 10, 2022) (granting the defendants summary judgment on the plaintiff's Sixth Amendment claim where “[a]ll mail at issue [was] alleged to have been related to civil matters”).
C. Coffelt's Motion for Partial Summary Judgment
Coffelt argues that he is entitled to summary judgment on his § 1983 claim against Semple. Pl.'s Mot. 1, ECF No. 55. Coffelt's motion extensively discusses attorney-client privilege but does not present specific arguments, evidence, or authority regarding his Fourth or Sixth Amendment claims. See id. at 2-15. Even if he did, however, the record shows that no reasonable jury could find that Coffelt had a reasonable expectation of privacy in his phone calls on September 23, 2019, or that his Sixth Amendment rights were implicated by the recording of his phone calls or by Semple listening to a portion of them. Therefore, for the reasons discussed above, Coffelt is not entitled to summary judgment on his § 1983 claim against Semple.
CONCLUSION
For the reasons stated above, the court recommends that the district judge DENY Coffelt's Motion for Partial Summary Judgment (ECF No. 55) and GRANT Semple's Motion for Summary Judgment (ECF No. 61) and enter a judgment of dismissal.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.