United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATION
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and seeking relief
pursuant to 42 U.S.C. § 1983. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1) and plaintiff has consented to have
all matters in this action before a United States Magistrate
Judge. See 28 U.S.C. § 636(c).
requests leave to proceed in forma pauperis. Because
plaintiff has submitted a declaration that makes the showing
required by 28 U.S.C. § 1915(a), his request will be
granted. Plaintiff is required to pay the statutory filing
fee of $350.00 for this action. 28 U.S.C. §§
1914(a), 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be forwarded by the appropriate
agency to the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 551 U.S.
89, 93-94 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
Allegations in the Complaint
who is currently incarcerated at the Federal Correctional
Institution in Cumberland, Maryland, brings this suit against
Sacramento County Sheriff's Deputy Kenneth Shelton and
Assistant United States Attorney Ellen Endrizzi for asserted
violations of his constitutional rights while he was a
federal pretrial detainee at the Sacramento County Main Jail
in 2009. He seeks damages and declaratory and injunctive
plaintiff alleges that defendant Shelton provided defendant
Endrizzi with his attorney-client privileged communications
including his jail phone calls, copies of his mail and social
media all without a warrant. ECF No. 1 at 4-5. Defendant
Endrizzi then used these materials to “plaintiff's
detriment” including during a bail hearing in his
federal criminal prosecution in two separate cases in which
he was ultimately convicted. ECF No. 1 at 5, 11-12; see
also United States v. Charles Head, et al., No.
2:08-cr-00093-KJM-AC (E.D. Cal.); United States v.
Charles Head, et al., No. 2:08-cr-00116-KJM-AC (E.D.
Cal.). Plaintiff also alleges that defendant
Shelton conducted multiple cell searches in retaliation for
plaintiff's 2009 grievances about his mail being delayed
or not delivered at all to his attorney. ECF No. 1 at 7-8.
Plaintiff alleges that defendant Shelton seized his
“personal mail, legal notes, journal records, and other
papers” from his jail cell during these searches
without providing him with a property receipt in violation of
state regulations. ECF No. 1 at 9. According to plaintiff,
these combined actions by defendants constitute a civil
conspiracy to violate his constitutional rights. ECF No. 1 at
alone, attorney-client privilege is merely a rule of evidence
and not a freestanding constitutional right. Partington
v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992) (citing
Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir.
1985)) (quotation marks omitted). The Supreme Court has held
that governmental intrusion into the attorney-client
privilege is not sufficient by itself to constitute a Sixth
Amendment violation. Weatherford v. Bursey, 429 U.S.
545, 558 (1977). Thus, violation of the attorney-client
privilege implicates the Sixth Amendment right to counsel
only when the intrusion substantially prejudices the
defendant. See United States v. Irwin, 612 F.2d
1182, 1186 (9th Cir. 1980); Partington, 961 F.2d at
863 (quotation marks omitted). Prejudice occurs when
“evidence gained through the interference is used
against the defendant at trial, ” or results
“from the prosecution's use of confidential
information pertaining to the defense plans and strategy,
from government influence which destroys the defendant's
confidence in his attorney, and from other actions designed
to give the prosecution an unfair advantage at trial.”
Irwin, 612 F.2d at 1186-87.
prejudice resulting from a violation of the attorney-client
privilege creates an additional difficulty when such claim is
presented in a federal civil rights action pursuant to 42
U.S.C. § 1983. If plaintiff claims that he was
prejudiced because his criminal defense was compromised by
the unlawful seizure of his attorney-client correspondence,
any Sixth Amendment claim would be barred by Heck v.
Humphrey, 512 U.S. 477, 486 (1994), for it would amount
to a collateral attack on plaintiff's federal
convictions. Valdez v. Rosenbaum, 302 F.3d 1039,
1049 (9th Cir. 2002) (finding a Sixth Amendment challenge by
a federal pretrial detainee to a local jail requirement that
ad seg inmates obtain written permission from jail staff to
call their attorneys was barred by Heck). “The
problem for plaintiff, however, is that if made this showing
of prejudice would show that he was denied the effective
assistance of counsel in his criminal trial, and thus call
into question the validity of his underlying
conviction.” Horacek v. Seaman, 2009 WL
2928546, at *10 (E.D. Mich. Sept. 10, 2009). In other words,
plaintiff's claim is not cognizable via a § 1983
action. Either the illegal seizure of his attorney-client
materials harmed his criminal defense, in which case the
Heck bar would foreclose this action, or it caused
no such harm, in which case no Sixth Amendment claim exists.
extent that plaintiff names a federal prosecutor as a
defendant in this civil action, prosecutors are absolutely
immune from civil suits for damages under § 1983 which
challenge activities related to the initiation and
presentation of criminal prosecutions. Imbler v.
Pachtman, 424 U.S. 409 (1976). Determining whether a
prosecutor's actions are immunized requires a functional
analysis. The classification of the challenged acts, not the
motivation underlying them, determines whether absolute
immunity applies. Ashelman v. Pope, 793 F.2d 1072
(9th Cir. 1986) (en banc). The prosecutor's
quasi-judicial functions, rather than administrative or
investigative functions, are absolutely immune. Thus, even
charges of malicious prosecution, falsification ...