“Under the law of the case doctrine, a court will generally refuse to 16 consider an issue that has already been decided by the same court or a higher court in the same 17 case.”
How later courts described this case
- “Under the law of the case doctrine, a court will generally refuse to 16 consider an issue that has already been decided by the same court or a higher court in the same 17 case.”
- finding prosecutor’s entitled to absolute immunity 4 for alleged violation of Wiretap Act
- “Under the 15 law of the case doctrine, a court will generally refuse to consider an issue that has already been 16 decided by the same court or a higher court in the same case.”
- complaint alleging merely that “certain documents pertaining to 24 plaintiff's then-pending trial were confiscated and not returned” too conclusory to support claim 25 of denial of access to court
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 CHARLES HEAD, No. 2: 19-cv-1663 TLN KJN P
12 Plaintiff,
13 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
14 COUNTY OF SACRAMENTO, et al.,
15 Defendants.
16
17 Introduction
18 Plaintiff is a federal prisoner, proceeding without counsel, with this civil action under 18
19 U.S.C. § 2520 for violations of 18 U.S.C. § 2511 (“Title III” or “Wiretap Act”) against defendant
20 Shelton.
21 On September 18, 2020, defendant Shelton filed a motion to dismiss on the grounds that
22 this action is barred by the statute of limitations. (ECF No. 29.) On October 15, 2020, plaintiff
23 filed a first amended complaint. (ECF No. 39.) On October 29, 2020, defendant Shelton filed a
24 motion requesting that the court screen the first amended complaint. (ECF No. 40.)
25 Good cause appearing, defendant’s request that the court screen the first amended
26 complaint is granted. Defendant’s motion to dismiss is vacated. The undersigned herein screens
27 plaintiff’s first amended complaint.
28 ////
1 Background
2 On December 16, 2019, Magistrate Judge Delaney recommended that plaintiff’s
3 complaint be dismissed.1 (ECF No. 13.) Magistrate Judge Delaney found that plaintiff’s claim
4 alleging that defendants Shelton and Endrizzi violated his Sixth Amendment right to attorney-
5 client privilege was not cognizable via a § 1983 action. (Id.) Magistrate Judge Delaney also
6 found that defendant Endrizzi was immune from suit. (Id.) Magistrate Judge Delaney found that
7 plaintiff’s claim alleging retaliation based on cell searches in 2009 was clearly time-barred. (Id.)
8 On June 23, 2020, the Honorable Troy L. Nunley adopted the December 16, 2019 findings
9 and recommendations recommending dismissal of plaintiff’s claims alleging violation of his
10 constitutional rights by defendant Shelton. (ECF No. 19.) However, Judge Nunley observed that
11 in his objections, plaintiff claimed that Ms. Endrizzi had not been named as a defendant. (Id. at 1
12 n. 1.) Therefore, Judge Nunley’s order did not address the December 16, 2019 findings and
13 recommendations to the extent they recommended dismissal of the claims against defendant
14 Endrizzi.
15 In his June 23, 2020 order, Judge Nunley found that plaintiff’s complaint stated a
16 potentially colorable claim under 18 U.S.C. § 2520 for violations of 18 U.S.C. § 2511 (“Wiretap
17 Act”) against defendant Shelton. (Id. at 5.) Judge Nunley also found that to the extent plaintiff
18 alleged a violation of the Wiretap Act by Sacramento County, Sacramento County was immune
19 from suit. (Id. at 6.)
20 On July 17, 2020, Magistrate Judge Delaney ordered the U.S. Marshal to serve the
21 complaint on defendant Shelton. (ECF No. 24.)
22 Claims in First Amended Complaint
23 Named as defendants in the first amended complaint are Sacramento County, Assistant
24 United States Attorney Endrizzi, Sacramento County Jail and Sacramento County Deputy Sheriff
25 Shelton. (ECF No. 39 at 1.)
26 ////
27
1 On October 15, 2020, Magistrate Judge Delaney disqualified herself from participating in this
28 case. (ECF No. 37.)
1 Plaintiff alleges that defendant Shelton provided defendant Endrizzi with recordings of
2 privileged telephone calls between plaintiff and his lawyer while plaintiff was housed at the
3 Sacramento County Jail during criminal proceedings. (Id.) Plaintiff also alleges that defendant
4 Shelton gave defendant Endrizzi written correspondences between plaintiff and his lawyer, as
5 well as other documents belonging to plaintiff. (Id.) Plaintiff alleges that the purpose of these
6 disclosures was to give defendant Endrizzi an unfair advantage in the prosecution of plaintiff in
7 two criminal trials held in the United State District Court for the Eastern District of California.
8 (Id. at 2.)
9 Plaintiff alleges that in retaliation for plaintiff’s complaint alleging that his mail was
10 tampered with, defendant Shelton conducted retaliatory cell searches. (Id. at 7-8.) Plaintiff
11 alleges that during these retaliatory cell searches, defendant Shelton confiscated and read
12 plaintiff’s legal and personal mail, legal notes, journals and other papers. (Id. at 8.) Plaintiff
13 alleges that defendant Shelton provided these documents to defendant Endrizzi. (Id.)
14 As legal claims, plaintiff alleges that defendants Endrizzi and Shelton conspired to violate
15 his rights under the First and Fourth Amendment. (Id. at 2.) Plaintiff alleges that defendant
16 Shelton and defendant Sacramento County Jail violated the Wiretap Act. (Id. at 16-18.) Plaintiff
17 alleges that defendant Endrizzi violated the Stored Communications Act, 18 U.S.C. § 2703(a),
18 and the Wiretap Act. (Id. at 16-17.) In particular, plaintiff alleges that defendant Endrizzi
19 violated the Stored Communications Act by failing to obtain a warrant to search, utilize or review
20 the privileged telephone conversations between plaintiff and his lawyer. (Id.) Plaintiff alleges
21 that defendants Endrizzi and Shelton violated the California Invasion of Privacy Act (“CIPA”)
22 (Cal. Penal Code §§ 630, et seq.) and plaintiff’s privacy under the California Constitution. (Id. at
23 20.)
24 Discussion
25 Potentially Colorable Claims
26 Plaintiff’s claim that defendants Shelton and Endrizzi violated the Wiretap Act states a
27 potentially colorable claim for relief. Plaintiff’s claim that defendant Endrizzi violated the Stored
28 Communications Act also states a potentially colorable claim for relief.
1 For the following reasons, the undersigned cannot determine, at this time, whether
2 defendant Endrizzi is entitled to absolute immunity with respect to these claims. See Lanier v.
3 Bryant, 332 F.3d 999, 1005 (7th Cir. 2003) (finding prosecutor’s entitled to absolute immunity
4 for alleged violation of Wiretap Act).
5 “Federal prosecutors are entitled to absolute immunity if their actions are related to
6 prosecutorial functions.” Id.
7 “Prosecutors are absolutely immune from liability for gathering additional evidence after
8 probable cause is established or criminal proceedings have begun when they are performing a
9 quasi-judicial function.” Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003). “However, even
10 after the initiation of criminal proceedings, a prosecutor may receive only qualified immunity
11 when acting in a capacity that is exclusively investigatory or administrative.” Id. at 1031 (citing
12 Buckley v. Fitzsimmons, 509 U.S. 259, 274 n. 5 (1993)).
13 Based on the allegations in the complaint, the undersigned cannot determine at this time
14 whether defendant Endrizzi is entitled to absolute immunity (or qualified immunity) based on her
15 alleged receipt of recordings of telephone calls between plaintiff and his lawyer from defendant
16 Shelton. Accordingly, the court separately orders service of defendant Endrizzi as to plaintiff’s
17 claims alleging violation of the Wiretap Act and the Stored Communications Act.
18 Plaintiff also alleges that defendants Endrizzi and Shelton conspired to violate the
19 California Invasion of Privacy Act, although he does not identify the section of this law
20 defendants allegedly violated.
21 California Penal Code § 637 criminalizes willful disclosure of telephonic communications
22 by persons who are not parties to the communication without permission.2 The undersigned finds
23 that plaintiff has stated a potentially colorable claim against defendants Endrizzi and Shelton for
24 allegedly violating California Penal Code § 637.3
25 2 California Penal code § 637.2 provides a private right of action for violation of chapter 1.5 of
the Penal Code (Invasion of Privacy).
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27 3 California Government Code Section 821.6 provides, “A public employee is not liable for
injury caused by his instituting or prosecuting any judicial or administrative proceeding within the
28 scope of his employment, even if he acts maliciously and without probable cause.” The
1 Plaintiff alleges that defendants Endrizzi and Shelton violated his right to privacy under
2 the California Constitution, apparently based on the claim that defendant Shelton shared with
3 defendant Endrizzi recordings of plaintiff’s telephone calls with his lawyer and other written
4 documents he confiscated from plaintiff. Plaintiff has stated a potentially colorable claim for
5 violation of his right to privacy under the California Constitution against defendants Shelton and
6 Endrizzi.4
7 Claims Not Potentially Colorable
8 In the amended complaint, plaintiff alleges that defendant Sacramento County Jail
9 violated the Wiretap Act. As discussed above, on June 23, 2020, Judge Nunley found that
10 defendant Sacramento County was immune from suit with respect to plaintiff’s Wiretap Act
11 claim. (ECF No. 19.) Although plaintiff alleges that defendant Sacramento County Jail violated
12 the Wiretap Act, plaintiff’s claim is really brought against Sacramento County. Accordingly,
13 plaintiff’s claim that defendant Sacramento County Jail violated the Wiretap Act is barred by the
14 law of the case doctrine. See Gonzales v. Arizona, 677 F.3d 383, n.4 (9th Cir. 2012) (“Under the
15 law of the case doctrine, a court will generally refuse to consider an issue that has already been
16 decided by the same court or a higher court in the same case.”)
17 Plaintiff alleges that defendants Endrizzi and Shelton conspired to violate his Fourth
18 Amendment rights. The grounds of this claim appear to be that defendant Shelton searched
19 plaintiff’s cell in order to obtain information relevant to plaintiff’s criminal case and then provide
20 it to defendant Endrizzi.
21 It is well-established that inmates do not have any Fourth Amendment claim with respect
22 to cell searches. Hudson v. Palmer, 468 U.S. 517, 525-26 (1984) (society is not prepared to
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undersigned cannot determine, at this time, whether defendants are immune from suit as to
24 plaintiff’s claim alleging violation of the California Privacy Act pursuant to § 821.6. See
Whitaker v. Garcetti, 291 F.Supp.2d 1132, 1155 (C.D. Cal. Nov. 17, 2003), rev’d on other
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grounds, 486 F.3d 572 (9th Cir. 2007) (“[S]ection 821.6 immunity does not apply to a given
sphere of conduct if a particular statute generates governmental liability within that sphere.”)
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27 4 The undersigned cannot determine, at this time, whether defendants are entitled to immunity
pursuant to California Government Code § 821.6 as to plaintiff’s claim alleging violation of his
28 right to privacy under the California Constitution.
1 recognize as legitimate any subjective expectation of privacy that a prisoner might have in his
2 prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable
3 searches does not apply within the confines of the prison cell.”). Accordingly, plaintiff’s Fourth
4 Amendment claim against defendants Endrizzi and Shelton should be dismissed.
5 Plaintiff alleges that defendants Endrizzi and Shelton conspired to violate his First
6 Amendment rights. While plaintiff alleges that defendant Shelton violated the First Amendment
7 by conducting retaliatory cell searches in response to plaintiff’s grievances, plaintiff does not link
8 defendant Endrizzi to this alleged retaliation. Accordingly, the undersigned finds that plaintiff
9 has not stated a potentially colorable First Amendment claim against defendant Endrizzi based on
10 the alleged retaliatory searches by defendant Shelton.
11 Judge Nunley dismissed the retaliation claim made against defendant Shelton in the
12 original complaint as time-barred. Plaintiff has re-plead his retaliation claim in the amended
13 complaint. Therefore, plaintiff’s retaliation claim alleged in the amended complaint against
14 defendant Shelton is barred by the law-of-the case doctrine. See Gonzales v. Arizona, 677 F.3d
15 383, n.4 (9th Cir. 2012) (“Under the law of the case doctrine, a court will generally refuse to
16 consider an issue that has already been decided by the same court or a higher court in the same
17 case.”).5
18 Plaintiff may be claiming that the confiscation of his legal documents violated his First
19 Amendment right to access the courts. “The destruction or confiscation of legal work, documents
20 or mail may state a claim for denial of access to the courts if plaintiff can establish actual injury to
21 court access.” Dunn v. U.S. Marshalls, 1995 WL 449058, at *1 (N.D. Cal. July 20, 1995) (citing
22 Morello v. James, 810 F.2d 344, 346-48 (2d Cir. 1987); cf. Jenkins v. McMikens, 618 F. Supp.
23 1472, 1474-75 (S.D.N.Y. 1985) (complaint alleging merely that “certain documents pertaining to
24 plaintiff's then-pending trial were confiscated and not returned” too conclusory to support claim
25 of denial of access to court).) “For a criminal defendant, however, the offer of court-appointed
26
5 The retaliation claim against defendant Endrizzi alleged in the amended complaint is likely
27 time-barred for the same reasons the retaliation claim against defendant Shelton is time-barred.
However, the undersigned need not reach this issue because plaintiff has not stated a potentially
28 colorable retaliation claim against defendant Endrizzi.
1 counsel satisfies the government’s obligation to provide meaningful access to the courts.” Id.
2 (citing United States v. Wilson, 690 F.2d 1267, 1272 (9th Cir. 1982).)
3 In the amended complaint, plaintiff alleges that he was represented by attorney Scott
4 Tedmon in his criminal case at the time his documents were allegedly confiscated. (ECF No. 39
5 at 2.) The docket in plaintiff’s criminal case, 2: 08-cr-93, indicates that Mr. Tedmon was
6 appointed to represent plaintiff. (See 2: 08-cr-93 (ECF No. 33, 36.) Because plaintiff had
7 counsel in his criminal case, plaintiff has not stated a potentially colorable claim for violation of
8 his First Amendment right to access the courts based on the alleged confiscation of his legal
9 property. See also Terwilleger v. Washington, 2018 WL 6331621, at *4 (W.D. Wash. Oct. 30,
10 2018) (“Thus, because Plaintiff was represented by counsel in his underlying criminal case,
11 Plaintiff cannot show he received inadequate access to the courts.”).
12 Conclusion
13 For the reasons discussed above, defendant Shelton is ordered to file a response to the
14 plaintiff’s claims in the amended complaint alleging violations of the Wiretap Act, California
15 Invasion of Privacy Act, i.e., California Penal Code § 637, and the right to privacy in the
16 California Constitution.
17 The undersigned separately orders service of defendant Endrizzi as to plaintiff’s claim
18 alleging violation of the Wiretap Act, Stored Communication Act, California Invasion of Privacy
19 Act, i.e., § 637, and the right to privacy in the California Constitution.
20 For the reasons discussed above, the undersigned recommends dismissal of the following
21 claims in plaintiff’s first amended complaint: 1) alleged violations of the First and Fourth
22 Amendments by defendants Endrizzi and Shelton; and 2) alleged violations of the Wiretap Act by
23 defendants Sacramento County Jail and Sacramento County.
24 Accordingly, IT IS HEREBY ORDERED that:
25 1. Defendant Shelton’s request that the court screen the amended complaint (ECF No.
26 40) is granted;
27 2. Defendant Shelton’s motion to dismiss (ECF No. 29) is vacated;
28 3. Within thirty days of the date of this order, defendant Shelton shall file a response to
1 plaintiff's claims in the amended complaint alleging violation of the Wiretap Act, the
2 California Invasion of Privacy Act, i.e., California Penal Code § 637 and the right to
3 privacy in the California Constitution; and
4 IT IS HEREBY RECOMMENDED that the following claims raised in the amended
5 complaint be dismissed: 1) alleged violation of the Wiretap Act by defendants
6 Sacramento County and Sacramento County Jail; and 2) alleged violations of the First
7 and Fourth Amendments by defendants Endrizzi and Shelton.
8 These findings and recommendations are submitted to the United States District Judge
9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days
10 | after being served with these findings and recommendations, any party may file written
11 | objections with the court and serve a copy on all parties. Such a document should be captioned
12 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
13 | objections shall be filed and served within fourteen days after service of the objections. The
14 | parties are advised that failure to file objections within the specified time may waive the right to
15 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).
16 | Dated: December 28, 2020
" Aectl Aharon
18 KENDALL J. NE
UNITED STATES MAGISTRATE JUDGE
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