WHITENIGHT v. ELBEL

AIN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH

SHAWN WHITENIGHT, )

)

Plaintiff, ) 2:16-cv-00552

)

vs. ) Chief United States Magistrate Judge

) Cynthia Reed Eddy

THOMAS ELBEL and DEPUTY NUNLEY, )

)

Defendants. )

MEMORANDUM OPINION1

This a pro se civil rights action initiated by Plaintiff, Shawn Whitenight. At the time of

the events giving rise to this lawsuit, Whitenight was a pretrial detainee incarcerated at Jefferson

County Jail. The defendants are Warden Thomas Elbel and Deputy Sheriff Jacob Nunley. Both

are sued in their individual and official capacities.

Pending is Defendants’ motion for summary judgment, with brief in support (ECF Nos.

158 and 161) and Plaintiff’s cross motion for partial motion for summary judgment, with brief in

support. (ECF Nos. 163 and 165). The issues have been fully briefed and the factual record has

been thoroughly developed. (ECF Nos. 159, 160, 164, 172, 173, 174, 175, 176, 177, 179, 180,

181, 182, and 183).

After careful consideration of the motions, the memoranda of the parties in support and

opposition thereto, the material in support and opposition thereto, the relevant case law, and the

record as a whole, the Court will grant Defendants’ motion for summary judgment in its entirety

and deny Whitenight’s partial motion for summary judgment.

1 In accordance with the provisions of 29 U.S.C. § 636(c)(1), all parties have voluntarily

consented to have a United States Magistrate Judge conduct proceedings in this case, including

trial and the entry of a final judgment. See ECF Nos. 26 and 104.

Background2

The relevant background is well known to the parties and was fully discussed in the Court’s

Report and Recommendation filed April 10, 2017 (ECF No. 50), adopted as the opinion of the

Court on May 19, 2017. (ECF No. 64).3 Whitenight was a pre-trial detainee being held on a

number of state charges which were filed in the Court of Common Pleas of Jefferson County at

Criminal No. CP-33-CR-0000001-2014. Whitenight alleges that while at Jefferson County Jail

awaiting his criminal trial, his constitutional rights were violated in several respects. Initially,

Whitenight alleged a plethora of claims against both Defendants based on alleged violations of his

civil rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution. He also asserted claims against Warden Elbel under federal and state criminal

statutes, the Pennsylvania constitution, and state common law for civil conspiracy. After the

Court’s ruling on Defendants’ motion to dismiss, which substantially limited Whitenight’s claims,

“[t]he only remaining claims in this lawsuit are as follows: Plaintiff’s Fourth Amendment claims,

the Federal Wiretap Act claims, and the Pennsylvania Wiretapping and Electronic Surveillance

Act claims.” Memorandum Order, 5/19/2017 (ECF No. 64 at 4). The Second Amended Complaint

remains Whitenight’s operative pleading. (ECF No. 34).

Standard of Review

The standard for assessing a Motion for Summary Judgment under Rule 56 of the Federal

Rules of Civil Procedure is well-settled. A court should grant summary judgment if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

2 At the time Whitenight initiated this lawsuit, he was a Pennsylvania state prisoner housed

at SCI-Greene. He notified the Court on October 24, 2017, that he had been released from DOC

custody. (ECF No. 92).

3 On January 29, 2018, the parties consented to jurisdiction before a United States Magistrate

Judge. The case was then transferred to the undersigned as presiding judge in the case.

show that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law. “Only disputes over facts that might affect the outcome of the suit

under the governing law will properly preclude the entry of summary judgment.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, “summary judgment will not lie if the

dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id. at 250.

On a motion for summary judgment, the facts and the inferences to be drawn therefrom

should be viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc.,

369 U.S. 654, 655 (1962)). The moving party has the initial burden of identifying evidence which

demonstrates the absence of a genuine issue of material fact. The party opposing the motion,

however, cannot rely merely upon bare assertions, conclusory allegations, or suspicions to support

its claim. The nonmoving party “must do more than simply show that there is some metaphysical

doubt as to the material facts,” Matsushita, 475 U.S. at 586, and must produce more than a “mere

scintilla” of evidence to demonstrate a genuine issue of material fact. See Big Apple BMW, Inc. v.

BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

Notably, these summary judgment rules do not apply any differently where there are

cross-motions pending. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). As stated

by the Court of Appeals for the Third Circuit, " ' [c]ross-motions are no more than a claim by

each side that it alone is entitled to summary judgment, and the making of such inherently

contradictory claims does not constitute an agreement that if one is rejected the other is

necessarily justified or that the losing party waives judicial consideration and determination

whether genuine issues of material fact exist.' " Id. (quoting Rains v. Cascade Indus., Inc., 402

F.2d 241,245 (3d Cir. 1968)). If review of cross-motions reveals no genuine issue of material fact,

then judgment may be granted in favor of the party entitled to judgment in view of the law and

undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998) (citation

omitted).

This standard is somewhat relaxed with respect to pro se litigants. Where a party is

representing himself pro se, the filings are to be construed liberally. Thus, if the Court can

reasonably read plaintiff’s pleadings together with his summary judgment submissions to show an

entitlement to relief, the Court should do so despite any failure to cite proper legal authority,

confusion of legal theories, poor syntax and sentence construction, or the litigant’s unfamiliarity

with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel.

Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (although a filing prepared by a prisoner

may be inartfully drawn, it should be read “with a measure of tolerance”). Nonetheless, at the

summary judgment stage of the proceedings, the Court is not required to credit any “bald

assertions” or “legal conclusions” that are unaccompanied by evidentiary support. Jones v. UPS,

214 F.3d 402, 407 (3d Cir. 2000); see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657

(3d Cir. 1990) (“[U]nsupported allegations . . . and pleadings are insufficient to repel summary

judgment.”).

Discussion

Whitenight alleges that while at Jefferson County Jail his telephone calls with his attorneys

were improperly recorded, “eavesdropping” occurred on another call; and his legal material was

improperly searched and read during his transport on May 12, 2014, from the Jefferson County

Jail to the Jefferson County courthouse. Discovery has closed and the parties have filed cross-

motions for summary judgment. Defendants seek summary judgment on all claims arguing that

Whitenight has failed to exhaust his administrative remedies or, in the alternative, that he has failed

to establish a violation of his constitutional rights. Whitenight seeks summary judgment only as

to the claims against Deputy Nunley. The motions are fully briefed and ripe for disposition by the

Court.

A. Exhaustion under the Prison Litigation Reform Act

Defendants argue they are entitled to summary judgment because Whitenight’s claims are

barred procedurally by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (the

“PLRA”), as he failed to exhaust his administrative remedies before filing his action in federal

court. Therefore, before turning to the merits of any claim, the Court must decide whether

Whitenight exhausted his administrative remedies.

As the United States Court of Appeals for the Third Circuit stated:

The PLRA states that ‘[n]o action shall be brought with respect to prison

conditions under [§ 1983], or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.’ 42 U.S.C. § 1997e(a). Exhaustion is considered

separately for each claim brought by an inmate, and if a complaint includes both

exhausted and unexhausted claims, courts will dismiss the latter but not the former.

See Jones v. Bock, 549 U.S. 199, 219-20 (2007). The Supreme Court has held that

the PLRA requires what is known as ‘proper exhaustion,’ meaning that inmates

must comply with the rules and procedures of prison administrative systems. See

Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (“Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules because

no adjudicative system can function effectively without imposing some orderly

structure on the course of its proceedings.”). We have held that these procedural

requirements are drawn from the policies of the prison in question rather than from

any free-standing federal law. Spruill [v. Gillis], 372 F.3d [218, 231 (3d Cir.

2004)].

Shifflett v. Korszniak, -- F.3d --, 2019 WL 3772104, at *6 (3d Cir. Aug. 12, 2019). Because

“prison grievance procedures supply the yardstick for measuring procedural default,” Spruill v.

Gillis, 372 F.3d 218, 231 (3d Cir. 2004), inmates who fail to fully complete the prison grievance

process are barred from subsequently litigating those claims in federal court. See, e.g., Booth v.

Churner, 206 F.3d 289 (3d Cir. 2000), aff’d, 532 U.S. 731 (2001). With these standards in mind,

the Court will proceed to address the exhaustion issue, and if necessary, will then address

Whitenight’s claims on their merits.

In a recent unpublished opinion, our court of appeals reiterated the analytical structure for a

failure-to-exhaust affirmative defense:

As formulated in this Circuit, the failure-to-exhaust affirmative defense has

two distinct stages. The first inquiry is whether the prison-employee defendants

can demonstrate that the inmate failed to exhaust the on-the-books remedies. See

Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (explaining that the prison’s

grievance policy supplies “ ‘the yardstick’ for determining what steps are required

for exhaustion” (quoting Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004))); see

also Ross v. Blake, 136 S.Ct. 1850, 1859 (2016); Rinaldi v. United States, 904 F.3d

257, 268 (3d Cir. 2018). If the defendants can make that showing, then at the

second stage, the inmate plaintiff bears the onus of producing evidence that the on-

the-books remedies were in fact unavailable to him or her.1 See Rinaldi, 904 F.3d

at 268.

1 This order of evaluation is not absolute, and it is permissible to consider

the second stage first, see, e.g., Small, 728 F.3d at 271-72, but this

ordering is consistent with the prison-employee defendants bearing the

burden of production at the first stage, before the inmate plaintiff inherits

the burden at the second.

The state of facts dictates the appropriate legal standard for evaluating the

exhaustion defense. If there is no genuine dispute of material fact, then the

exhaustion defense may be evaluated as a matter of law at summary judgment. If

there is a genuine dispute of material fact related to exhaustion, then summary

judgment is inappropriate . . . .

West v. Emig, No. 18-3806, -- F. App’x --, 2019 WL 5061417, *2 (3d Cir., Oct. 9, 2019) (non-

precedential). Here, because Defendants have moved for summary judgment, the analysis turns

on whether any genuine issue of material fact exists and whether Defendants are entitled to

judgment as a matter of law.

No analysis of exhaustion may be made absent an understanding of the administrative

process available to those incarcerated at Jefferson County Jail. Jones v. Bock, 549 U.S. 199, 218

(2007). The Jefferson County Jail Inmate Handbook outlines the multi-tier process for the

grievance procedure including the appeal process:

Step #1 - Address the problem with correctional staff to see if they can resolve the

problem. Many times an officer can resolve the situation without a grievance being

filed.

Step #2 - Submit a request for a grievance form giving details about the problem.

At times the deputy warden can resolve the problem before there is actually a need

for a grievance. If this is not possible, you will be given a grievance form.4

Step #3 - Complete the grievance form and forward it to the deputy warden. He/she

will respond to the grievance within ten (10) business days, unless detailed research

is needed. If the grievance cannot be answered within the ten (10) day period, you

will be notified in writing by the deputy warden.

Step #4 - If the grievant is not satisfied with the deputy warden’s response, you may

appeal the decision to the warden. An appeal must be filed to the warden within

five (5) business days. The warden will respond to the inmate’s appeal within ten

(10) business days.

Inmate Handbook, ¶¶ 49, 50, Revised 01/01/2012 (ECF No. 170-1, Exh O).

Defendants argue that Whitenight did not file a grievance relating to any of the remaining

claims in this lawsuit. Whitenight does not deny that he failed to exhaust administrative remedies

but rather argues there were a number of reasons why he did not grieve these issues. Most of these

arguments can be summarily denied.

First, Whitenight argues that he completed all available administrative remedies because

his complaint survived the Court’s initial pre-screening and a motion to dismiss. (ECF No. 173 at

¶ 7). This argument is without merit as multiple courts have held that a district court's sua sponte

screening of an inmate's complaint does not preclude a defendant from subsequently filing

4 The Handbook states that, “[d]ue to the large number of request slips that staff members

receive, you need to be patient and allow a reasonable time for a response. If you have not received

a response in five (5) business days, you may re-submit a request.” Handbook, ¶ 49.

dispositive motions. See, e.g., Garewal v. Sliz, 611 F. Appx 926, 931 (10th Cir. 2015) ("Simply

put, the fact that a district court does not dismiss a complaint under § 1915A does not mean that

the complaint will necessarily withstand a defendant's challenge to its plausibility under Rule

12(b)(6)."); Fattah v. Symons, 2015 WL 5512344 (M.D. Pa. Sept. 16, 2015) (same holding and

citing cases). Next, he argues, without any legal support, that the “continuing violations doctrine,”

excuses compliance with the PLRA exhaustion requirement. This argument is also without merit

as the Court, through its own research, has found no cases applying the continuing violations

doctrine in the context of failure to exhaust administrative remedies. Third, Whitenight argues

that it would have been futile to file grievances, because several of his previous grievances were

denied as “not grievable.” This argument is also without merit. It is well established that “the

exhaustion requirement is not subject to a futility exception.” Gerholt v. Orr, 624 F. App’x 799,

802 (3d Cir. 2015) (citing Brown v. Croak, 312 F. 3d 109, 112-13 (3d Cir. 2002)); Nyhuis v. Reno,

204 F.3d 65, 71 (3d Cir. 2000) (internal citations omitted).

Whitenight’s final argument, however, gives the Court pause. He argues that the grievance

process was not available to him, with regard to Deputy Nunley’s alleged unconstitutional conduct.

He contends that he “submitted a request form to obtain a grievance form for the actions of

Defendant Nunley [and] did not receive a request form response or a grievance form for

administrative remedies completion.” Pl’s Br. at 7 (ECF No. 180). Defendants rely on the lack of

any records to support their argument that Whitenight neither asked for a grievance form nor filed

an actual grievance.

It does not appear from the summary judgment record evidence that Jefferson County Jail

utilized carbon-copy forms or had a tracking procedure in place to record when prisoners’ requests

for grievance forms or actual grievances were submitted. The Court, therefore, is reluctant to grant

summary judgment on the basis that the any of Plaintiff’s claims are procedurally barred by the

PLRA on this sparse record. Accordingly, the Court will proceed to address the claims on their

merits.

B. Fourth Amendment Claims

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const.

amend. IV. While prisoners maintain Fourth Amendment protection, they have much more limited

privacy interests than individuals not incarcerated and the Fourth Amendment proscription against

unreasonable searches does not apply within the confines of a prison cell. See Hudson v. Palmer,

468 U.S. 517, 526 (1984) (holding that because prisoners have no reasonable expectation of

privacy, even unreasonable searches of their persons, cells, and personal belongings do not violate

the Fourth Amendment); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). See also Florence v. Board

of Chosen Freeholders of County of Burlington, 566 U.S. 318, 328-29 (2012) (noting that prison

policies, including “reasonable search policies to detect and deter the possession of contraband,”

will not violate a prisoner’s constitutional rights if they are “reasonably related to legitimate

penological interests.”).

The Court previously determined that Whitenight’s Fourth Amendment claims were not

the type of claims contemplated by the Supreme Court of the United States in Heck v. Humphrey

which necessarily implicate the validity of a conviction or sentence.5 Report and Recommendation,

at 14, filed April 10, 2017 (ECF No. 50), adopted as the opinion of the Court on May 19, 2017.

(ECF No. 64). See Sanders v. Downs, 420 F. App’x 175, 179 (3d Cir. 2011) (“Heck typically does

not bar actions for Fourth Amendment violations); Broadwater v. Fow, 945 F.Supp.2d 574, 583–

5 The Court ruled, however, that Whitenight’s claims of violations of his First, Sixth, and

Fourteenth Amendment rights went to the core of his convictions and, thus, were barred under

Heck.

84 (M.D. Pa.2013) (allowing Fourth Amendment search and excessive force claims to proceed

under Heck because judgment on those claims would not necessarily invalidate outstanding

conviction). The Court found Whitenight’s claims regarding the recording of telephone calls with

his attorney, the eavesdropping on telephone calls with his attorney, and the reading of his legal

material during transport were sufficient to survive a motion to dismiss. To prevail on his Fourth

Amendment claims, Whitenight must show not only that the search / seizure was unlawful, but

that it caused him actual, compensable injury, that does not encompass the “injury” of his

conviction and sentence. Heck, 512 U.S. at 386-87.

1. Claims Against Warden Elbel.

Whitenight’s claims against Warden Elbel are two fold: (1) that his calls with his attorneys

were improperly recorded and (2) that a correction officer “eavesdropped” on a telephone call he

had with his attorney. Whitenight contends that Warden Elbel was advised of the ongoing policy

or practice of subordinates violating his attorney-client privacy, but took no action to cease the

violations and failed to review the recording equipment to ensure no violations were occurring

during telephone recordings. Whitenight argues that Defendant Elbel is “liable by personal

involvement and respondent superior liability.”

There is no dispute that one telephone call between Whitenight and Attorney Ralph

Montana was recorded and that twenty-one (21) telephone calls between Whitenight and Attorney

Robert Hoffa or Attorney Hoffa’s office were recorded. The following facts also are not in dispute:

* Jefferson County Jail has two phone systems for use by prisoners. One of the phone

systems is for general prisoner use, the other is designated for secure communications between a

prisoner and his/her attorney. At all relevant times, telephone services on the general prisoner line

were provided by Global Tel Link, a private company that provides correctional facility telephone

services.

* On the general line, a prisoner’s telephone calls are recorded as a matter of course

unless a particular number is coded as belonging to a particular prisoner’s attorney. The general

telephone system announces to the prisoner and to the person on the line that the call was from a

correctional facility and that it will be recorded. The announcement occurs automatically. The

recording also occurs automatically, subject to the coding of a telephone number as being of a

prisoner’s attorney. The jail staff at Jefferson County Jail maintains a list of telephone numbers

provided by each prisoner for their telephone list. Prisoners can submit request slips adding or

deleting numbers from their telephone list. If a prisoner submits a request form indicating that an

attorney’s telephone number should be added to his/her telephone list, the jail staff is to add a code

on the telephone system indicating that number is for an attorney. The telephone calls on the

general line with that telephone number are not to be recorded.

* The second phone system maintained by Jefferson County Jail is for confidential

attorney-client calls (the “legal” phone). The calls on the legal phone are never recorded.

* On December 19, 2013, Whitenight wrote a request slip asking that Attorney Ralph

Montana be added to his telephone list. The following day, Whitenight’s request was marked as

being “done.” On December 23, 2013, one call off the general line from Whitenight to Attorney

Montana’s office was recorded. On December 27, 2013, Whitenight wrote a request slip asking

that Attorney Montana be removed from his telephone list.

* On December 29, 2013, Whitenight wrote a request slip informing the Jail that

Attorney Robert Hoffa will be at the Jail on January 2, 2014, and requesting that he be added to

the “visitor + contact list.” Lt. Fleming handled Whitenight’s request and responded, “atty. Hoffa

number added. Lt. Fleming.” The summary judgment record indicates that twenty-one calls on

the general line between Whitenight and Attorney Hoffa were recorded between January 22, 2014,

through May 1, 2014.

* On January 22, 2014, Whitenight submitted a request slip to add Edgar Snyder and

Associates to his telephone list. Whitenight never placed an outgoing call to this attorney, which

is confirmed by the general phone log.

* Jury selection in Whitenight’s criminal case was scheduled for May 12, 2014. In

preparation for the criminal trial, the District Attorney’s Office requested from Warden Elbel a

copy of Whitenight’s recorded telephone calls. A compact disc of the recorded calls was prepared

and given to a County Detective, who listened to the CD and discovered that the CD contained a

recording between Whitenight and his attorney. The County Detective then advised the District

Attorney that the CD contained attorney/client privileged communications. The District Attorney

then disclosed this to Whitenight’s attorney and provided him with a copy of the CD. On May 16,

2014, Whitenight pled guilty to his state charges.

* None of Whitenight’s attorney/client telephone calls placed on the “legal” phone

were recorded. The recorded calls at issue in this case were placed on the non-legal phone line.

Defendants acknowledge that Attorney Montana’s telephone call was recorded, but explain

that the recording happened because the attorney’s telephone number had not been coded as an

attorney number at the time the call was made. Defendants also acknowledge that twenty-one (21)

calls between Whitenight and Attorney Hoffa were recorded. According to Defendants, this

occurred because Lt. Fleming had not properly coded Attorney Hoffa’s telephone number as an

attorney telephone number in the phone system. Therefore, Attorney Hoffa’s number was not

exempted from the general rule that all calls on the general line are recorded unless specifically

coded not to be.

Whitenight responds that both “incoming” and “outgoing” attorney calls were recorded

and that while the “outgoing” calls have been produced, the “incoming” calls “have been wantonly

destroyed and not produced.” Pl’s Concise Stmt. of Facts, ¶ 5 (ECF No. 176). Whitenight also

argues that because Attorney Hoffa was not provided the “secure” telephone number, he would

call the Jail’s “general” line and then be transferred into the “legal” telephone in the attorney-client

conference room. Id. at ¶ 8. Whitenight acknowledges that both he and Attorney Hoffa heard the

automated notice that the calls were being recorded, but “assumed the recording of confidential

calls were in error . . . .” Id. at ¶ 10.

Whitenight also alleges that on April 24, 2014, while he was having a telephone call with

his attorney in the video room, Lt. Ishman stood outside the room and eavesdropped on his phone

call.

After careful consideration of the entire summary judgment record, the Court finds that

there is not sufficient evidence from which a reasonable fact finder could find that Warden Elbel

violated Whitenight’s Fourth Amendment rights.

There are “two general ways” in which a supervisor-defendant may be liable: (1) where

the supervisor established a policy, custom, or practice that caused the harm; or (2) where the

supervisor personally participated in the constitutional violation. The United States Court of

Appeals for the Third Circuit explained these two general types of supervisory liability as follows:

First, liability may attach if they, “with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly caused [the]

constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372

F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford

Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be

personally liable under § 1983 if he or she participated in violating the plaintiff’s

rights, directed others to violate them, or, as the person in charge, had knowledge

of and acquiesced” in the subordinate’s unconstitutional conduct. Id. (citing Baker

v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995) ). “Failure to” claims—

failure to train, failure to discipline, or, as in the case here, failure to supervise—

are generally considered a subcategory of policy or practice liability.

Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 316-19 (3d Cir. 2014), reversed on other

grounds by Taylor v. Barkes, -- U.S. --, 135 S.Ct. 2042, 2043 (2015).

There is no doubt that Whitenight’s claims are troubling. However, Whitenight has

produced no credible evidence from which a reasonable fact finder could find that Warden Elbel

“established and maintained a policy, practice, or custom” which resulted in Whitenight’s

constitutional rights being violated or that Warden Elbel directly participated in violating

Whitenight’s rights, directed others to violate them, or, “as the person in charge, had knowledge

of and acquiesced” in any of the conduct which forms the basis of this lawsuit.6 Specifically, the

summary judgment evidence reflects that Warden Elbel was not involved in the coding of any of

Whitenight’s telephone numbers or that Warden Elbel instructed anyone to enter the information

into the system in such a way that attorney calls on the general line would be recorded. Warden

Elbel was not aware that Whitenight’s calls to his attorney were being recorded and did not listen

to the recordings of Whitenight’s calls. Warden Elbel was not aware prior to providing the CD to

the County Detective that calls between Whitenight and his attorney on the general line had been

recorded. Once he was alerted to this situation, the coding problem was corrected.

Further, the summary judgment record is void of any credible evidence that Lt. Ishman

actually overheard what Whitenight was saying on the telephone. But more importantly, there is

no evidence that Warden Elbel instructed Lt. Ishman, or any correction officer, to eavesdrop on

6 In his Answers to Interrogatories, Warden Elbel stated that he was not aware of the

recording of any other telephone calls between any other prisoners / pretrial detainees and their

attorneys at the Jefferson County Jail during his tenure as warden. (ECF No. 160-1 at 4).

Whitenight’s calls with his attorney or that Warden Elbel was aware that Lt. Ishman, or any one

else, was eavesdropping on Whitenight’s telephone calls with his attorney.

As such, summary judgment will be granted to Warden Elbel on Whitenight’s 1983 claims.

2. Claims Against Deputy Nunley

Whitenight claims that Deputy Nunley illegally searched and read his confidential legal

material during transport from the Jefferson County Jail to the Jefferson County Courthouse on

May 12, 2014. Second Amended Complaint, at ¶ 24 (ECF No. 34). According to Whitenight’s

Declaration, on May 12, 2014,

3. [he] was prepared by Jail staff of the Jefferson County Jail to attend jury

selection in my criminal case at the Jefferson County Courthouse. Prison staff

executed a complete strip search of my person and completed a thorough search of

my attorney-client documentation / case documents that I was taking to the hearing.

5. Upon entering the Sally port garage of the Jefferson County Jail and

entering the rear passenger door of the Jefferson County Sherriff’s vehicle,

Defendant Deputy Nunley denied me the ability to maintain the physical possession

of my attorney-client documents in the rear of the vehicle.

7. Defendant Deputy Nunley threatened physical force upon me if I did not

turn over the documents. After a short verbal disagreement, I turned over the

documents as to not escalate the situation.

8. Sherriff’s Deputies did not conduct a physical search or pat down of my

person before entering the Sherriff’s vehicle for transport.

10. During transport, Defendant Nunley was sitting in the front passenger seat,

opened my attorney-client documents, searched thru the attorney-client documents

and read my attorney-client documents.

13. While holding and reading my attorney-client documents and still in transit

to the Courthouse, Defendant Nunley turned up the FM radio to a level where I

could not hear any conversation being completed from the front seat of the vehicle.

14. Defendant Nunley then proceeded to place a telephone call utilizing his

cellular telephone. Upon an unknown individual answering the call, Nunley

holding and looking directly at my attorney-client privileged documents, reading

them while completing a short conversation on the telephone.

15. Upon the completion of the telephone call, Defendant Nunley placed my

attorney-client documents back into the legal folder and then turned down the FM

radio volume where I could once again hear their conversations completed within

the front seat of the vehicle.

17. Deputy Nunley’s actions without a shadow of a doubt, went beyond his duty

to search my attorney-client privileged documents for contraband. I would have no

problems with the Defendant conducting an appropriate search as needed for safety

while within my presence.

Pl’s Declaration in Support of Partial Summary Judgment (ECF No. 164) (quoted verbatim).

To the extent that Whitenight is alleging that Deputy Nunley’s search of his legal material

was a violation of the Fourth Amendment, such a claim fails. The Fourth Amendment’s

prohibition on unreasonable searches does not apply in prison. Hudson v. Palmer, 468 U.S. 517,

530 (1984). Additionally, the Jefferson County Sheriff’s Office Transport Operations, specifically

states, that transporting deputies:

must conduct a thorough search of the detainee and all possessions of the detainee

before placing the person in the deputy’s vehicle, making sure that no weapons or

contraband was overlooked. The deputies shall never assume that a search was

made by another deputy.

Jefferson County Sheriff’s Office Transport Operations, III(B)(7), Jan. 1, 2013 (ECF No. 165 at

9) (emphasis added).

Whitenight argues that Deputy Nunley violated his Fourth Amendment rights by “failing

to follow Jefferson County Sherriff’s (sic) department procedures and policies” as his legal

material was searched after he was placed in the deputy’s van. Pl’s Br at 6 (ECF No. 165).

However, a violation of an internal prison policy does not automatically rise to the level of a

constitutional violation. “[A] prison policy manual does not have the force of law and does not rise

to the level of a constitutional violation.” Atwell v. Lavan, 557 F. Supp. 2d 532, 556, n.24 (M.D.

Pa. 2008) (citing Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 14, 154 (3d Cir. 2004)); Estrella

v. Hogsten, 2007 WL 2065879 (M.D. Pa. July 16, 2007) (holding that mere failure of prison

officials to follow their own regulations alone is not a constitutional violation). Consequently,

Deputy Nunley cannot be liable simply for violating a prison policy.

Likewise, to the extent that Whitenight alleges that Deputy Nunley’s reading of his legal

material was a violation of the Fourth Amendment, such claim fails.7 It is well settled that

prisoners are entitled to unobstructed and confidential communication with attorneys and that

interference with such communications may implicate a violation of a constitutional right, but not

a violation of the Fourth Amendment. See Iqbal v. Hasty, 490 F.3d 143, 170 (2d Cir. 2007)

(detainee’s allegations of interference with attorney-client communication pled a Sixth

Amendment claim), aff’d in part, rev’d in part, and remanded on other grounds sub nom. Ashcroft

v. Iqbal, 556 U.S. 662 (2009); Williams v. Price, 25 F. Supp. 2d 605, 519 (W.D. Pa. 1997) (holding

confidentiality of attorney-client communications does not present a court access claim after Lewis

v. Casey, 518 U.S. 343 (1996); it must be asserted under the First Amendment, Sixth Amendment,

or the due process right of privacy.)

For all these reasons, summary judgment will be granted to Deputy Nunley on

Whitenight’s § 1983 claims.

7 There appears to be conflicting evidence in the record as to whether Deputy Nunley read

Whitenight’s legal material. In his answers to interrogatories, Defendant Nunley specifically states

that he did not open the envelope with Whitenight’s legal documents and did not discuss or divulge

its contents with anyone. He also avers that he contacted “other deputies at the Courthouse to

coordinate for the proper transfer of Plaintiff from the vehicle to the Courthouse. The deputies

were arranging for Plaintiff’s arrival to ensure that he would not be prejudiced by any media or

jurors seeing him cuffed and shackled.” See Pl’s Br. in Support of Partial Summ. J., Exh. 2, Ans.

to Interrogatories, Nos. 4, 5, 7, 9, and 11. (ECF No. 165). Whitenight responds that he “was an

eyewitness to the actions of Defendant Nunley . . . .” Pl’s Opp’n Br. at 11 (ECF No. 180). Even

accepting Whitenight’s version of the events, there simply is no Fourth Amendment violation;

therefore, it is not necessary to address the parties’ conflicting positions.

C. Statutory Wiretapping Claims

Initially, Whitenight attempted to bring a series of statutory claims against Warden Elbel.

Amended Complaint, ¶¶ 104 - 146, inclusive. (ECF No. 34). The ruling on Defendants’ motion

to dismiss limited Whitenight’s statutory claims to alleged violations of the Federal Wiretap Act,

18 U.S.C. § 2511, and the Pennsylvania Wiretapping and Electronic Surveillance Act, 18 Pa.

C.S.A. § 5703. Although both are criminal statutes, civil remedies are available to persons whose

wire, electronic, or oral communications have been intentionally intercepted. See 18 U.S.C. § 2520

and 18 Pa. C.S. § 5725(a). See also Citron v. Citron, 539 F. Supp. 621 (S.D.N.Y. 1982), aff’d,

722 F.2d 14 (2d Cir. 1983), cert. denied, 466 U.S. 973 (1984) (denying claim for money damages

for alleged violation of the Federal Wiretap Act in the absence of intent or reckless disregard);

Kline v. Sec. Guards, Inc., 159 F. Supp. 2d 848, 853 (E.D. Pa. 2001) (nothing that violations under

§ 5725 require intent), vacated and remanded on other grounds, 386 F.3d 246 (3d Cir. 2004).

Whitenight has produced no credible evidence that anyone, much less Warden Elbel,

intended to intercept his attorney-client telephone calls. Rather, the summary judgment evidence

demonstrates that the recordings resulted because of mistakes by Jail employees who failed to

properly code the attorney telephone numbers on the general system. To that end, the record is

completely void of any evidence from which a reasonable fact finder could find that Warden Elbel

personally entered the coding on the calls in question, that Warden Elbel instructed any subordinate

to miscode the attorney telephone numbers, that he personally listened to the telephone calls in

question, or that he instructed any subordinate to listen to the telephone calls in question.

The Court finds that because there is no evidence of an intentional recording of

Whitenight’s attorney telephone calls, there is no violation of either the Federal Wiretap Act, 18

U.S.C. § 2511, or the Pennsylvania Wiretapping and Electronic Surveillance Act, 18 Pa. C.S.A. §

5703. Accordingly, summary judgment is appropriate on both the federal and state wiretap claims.

Conclusion

For the foregoing reasons, the Court will grant Defendants’ Motion for Summary

Judgment in its entirety and deny Plaintiff’s Motion for Summary Judgment. An appropriate Order

follows.

Dated: December 27, 2019 BY THE COURT:

s/Cynthia Reed Eddy

Cynthia Reed Eddy

Chief United States Magistrate Judge

cc: SHAWN WHITENIGHT

182 Evansville Road

Berwick, PA 18603

(via U.S. First Class Mail)

All Attorneys of Record

(via ECF electronic notification)