United States District Court, E.D. Virginia, Norfolk Division
OPINION AND DISMISSAL ORDER
REBECCA BEACH SMITH, District Judge.
Plaintiff, a federal inmate proceeding pro se, originally filed this action in the United States District Court for the District of Colombia. The action was transferred to this court. By Order dated April 4, 2013, Plaintiff filed an Amended Complaint. D.E. # 14. Defendants, other than Defendant Shumate, then filed a Motion to Dismiss the Amended Complaint, or in the Alternative, a Motion for Summary Judgment. D.E. # 18. Plaintiff was advised of his right to respond pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), and he did so. D.E. # 22. Defendant Shumate subsequently appeared and also requested dismissal or summary judgment for the same reasons asserted by the other Defendants. D.E. # 25. Plaintiff was again advised of his right to respond, but he did not file an additional response.
I. Facts Alleged by Plaintiff
Plaintiff's Amended Complaint asserts claims pursuant to Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971), arising from officials' confiscation of certain written materials and other items from his cell. Plaintiff is incarcerated in Federal Correctional Institution Petersburg because of his convictions related to sexual offenses against a minor. Amended Compl. ¶ 4.01. The written materials and other items in question were removed from Plaintiff's cell after officials conducted a search of his cell on September 21, 2011. Id . ¶¶ 4.06-4.09. Some materials were returned to Plaintiff; Plaintiff's claims arise from items that were not returned to him. Id . ¶ 4.17. Specifically, Plaintiff claims that (1) a Playboy magazine and (2) certain "non-nude erotic" photos of adult women in bikinis were not returned. Id . ¶ 4.09. Plaintiff also complains about the confiscation of (3) non sexual photos of him with his victim, whom he characterizes as his "teen girlfriend, " and (4) logs of chats between him and his victim, some of which were sexual and some of which were not. Id . Plaintiff asserts that items 3 and 4 were evidence in his criminal case and that they were sent to him by his attorney three years prior to the search of his cell. Plaintiff asserts that items 3 and 4 were relevant to a pending habeas corpus case. Id . ¶ 4.13. Plaintiff complains as well about (5) the removal of papers related to a pending civil case and a civil suit he planned to file. Id . ¶ 5.05. Plaintiff finally complains that additional materials, specifically, (6) "photos that depicted adult sexual nudity" and (7) "photos of clothed adults and staff alleges, but have not shown to be, of clothed minors, " were seized during a subsequent search on February 21, 2012. Id . ¶ 4.34(a).
II. Overall Applicable Legal Standards
Plaintiff asserts numerous claims arising from these facts. Plaintiff complains throughout the Amended Complaint and briefing that the institution did not follow its own rules and procedures. Any failure to follow institutional or state rules is, of itself, not a federal concern. See Riccio v. County of Fairfax, Va. , 907 F.2d 1459 (4th Cir. 1990). The issue for this court is whether Plaintiff alleged facts that establish a violation of the Constitution or other federal laws.
To survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A plaintiff must allege facts that permit the court to infer that all elements of each of the claims exist. See Jordan v. Alt. Res. Corp. , 458 F.3d 332, 346 (4th Cir. 2006).
Summary judgment is appropriate when the court, viewing the record as a whole and in the light most favorable to the non-moving party, determines that there exists no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing the absence of an essential element of the party's case. Honor v. Booz-Allen & Hamilton, Inc. , 383 F.3d 180, 185 (4th Cir. 2004). When the moving party has met its burden, the non-moving party must then present specific facts demonstrating that there is a genuine issue of material fact for trial. Matushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986).
III. Analysis of Plaintiff's Claims
A. Claim A "Attorney-Client Rights"
The court now turns to the merits of Plaintiff's Claim A. Claim A arises from Plaintiff's contention that the attorney-client privilege was violated, and Plaintiff asserts resulting violations of the First, Fourteenth, and Sixth Amendments. First, Plaintiff assumes that, because items (3) and (4) were mailed to him by his attorney, these items are protected by the attorney-client privilege. Attorney-client privilege attaches to confidential communications between a lawyer and his client made in an effort to obtain legal services. See U.S. v. Lentz , 524 F.3d 501 (4th Cir. 2008). According to Plaintiff, items (3) and (4) were evidence in Plaintiff's criminal case, and as such are not confidential. Further, they are not communications between Plaintiff and his counsel. The mere fact that these items were mailed to Plaintiff by his attorney does not alter their character. Accordingly, the attorney-client privilege provides no protection for these items. Even were the attorney-client privilege applicable, the First Amendment does not protect an "inmate's legal material from perusal by a third party." Fennell v. Allen, No. 3:09cv468, 2011 WL 2144560, *2 (E.D. Va. May 31, 2011). Further, a violation of attorney-client privilege does not constitute a cognizable Sixth Amendment violation. Clutchette v. Rushen , 770 F.2d 1469, 1471 (9th Cir. 1985) ("[T]he attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional right."). Plaintiff did not specify any facts indicating that any of these events impacted his relationship with counsel in a criminal proceeding against him, such that the Sixth Amendment would be implicated.
Plaintiff next assumes that his rights were violated because legal mail was allegedly opened outside of his presence, when the envelope in which they were contained was opened during the search. Even assuming the packages contained some attorney correspondence in addition to the evidence discussed above (which was not alleged), a few instances of opening legal mail outside of the presence of the inmate does not indicate a constitutional violation. Buie v. Jones , 717 F.2d. 925, 926 (4th Cir. 1983). Finally, Plaintiff alleged no injury to his right to access the courts as a result of the opening of any allegedly legal mail, so no constitutional claim, including a Fourteenth Amendment claim, is stated. See Lewis v. Casey , 518 U.S. 343, 352-54 (1996). The court, therefore, GRANTS the Motions to Dismiss Claim A.
B. Claim B "Access to the Courts"
Plaintiff asserts in Claim B that his access to the courts was impeded because of the confiscation of certain items. Specifically Plaintiff complains about the confiscation of items 3 and 4, about the seizure of documents related to a pending civil case filed by him (Action No. 2:09cv351), and about the seizure of ...