W.D.Va.: Prisoner suit for recording attorney-client meetings survives 6A claim but 4A denied on QI

Plaintiff, a prison inmate, had his conversations with his lawyer in trial preparation recorded by prison officials. He sued for interference with his right to counsel and for a Fourth Amendment violation. Defendant’s summary judgment motion is denied on the Sixth Amendment claim and granted on qualified immunity on the Fourth Amendment claim. As to the latter, the case law is not clear enough. Wall v. Mefford, 2018 U.S. Dist. LEXIS 44022 (W.D. Va. Mar. 19, 2018):

Here, viewing the facts in the light most favorable to Wall, the defendants either ordered others to interfere with, or themselves interfered with, Wall’s attempts to have private consultations with his criminal defense attorney. Such evidence, if found to be true by the jury, would support Wall’s § 1983 claim for violation of his Sixth Amendment right to counsel. On the other hand, if the jury believes the evidence provided by the defendants, the jury could find in the defendants’ favor. Therefore, on this claim, I deny both Wall’s and the defendants’ motions.

With regard to Wall’s claim that the defendants’ actions violated his right to privacy, it is well-settled that prison inmates have little, if any, reasonable expectation of privacy. See Hudson, 468 U.S. at 527 (A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells….”). It also has been held that a prisoner’s right of privacy is not violated when prison officials monitor conversations with visitors. See Christman v. Skinner, 468 F.2d 723, 726 (2nd Cir. 1972) (citing Lanza v. New York, 370 U.S. 139 (1962)); Rodriguez v. Blaedow, 497 F. Supp. 558, 559 (E.D. Wis. 1980). At least one court, however, has held that a prisoner’s general right to privacy is implicated when a prisoner is denied private consultations with counsel. See Williams v. Price, 25 F. Supp. 2d 623, (W.D. Pa. 1998). See also Lonegan v. Hasty, 436 F. Supp. 2d 419 (E.D. N.Y. 2006) (attorneys possessed a constitutionally protected reasonable expectation of privacy in their conversations with incarcerated clients). Nonetheless, at least one other court has held that, even if such a right of privacy exists, it was not “clearly established” law required to strip the defendants of the protection of qualified immunity. See McWright v. Gerald, 2004 WL 768641 (E.D. Mich. Mar. 26, 2004). Based on my review of the controlling case law in this Circuit, I agree. I will deny Wall’s motion and grant the defendants’ motions on this claim, and I will enter summary judgment in favor of the defendants’ favor on this claim based on qualified immunity.