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Wall v. Medford

United States District Court, W.D. Virginia, Roanoke Division

March 19, 2018

GARY WALL, Plaintiff,
v.
R. MEFFORD, et al., Defendants.

          MEMORANDUM OPINION

          Pamela Meade Sargent United States Magistrate Judge

          The plaintiff, Gary Wall, (“Wall”), an inmate incarcerated at Red Onion State Prison, (“Red Onion”), and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants, all of whom were or are correctional officers at Red Onion, have violated his constitutional rights to privacy, free speech, and access to the courts and counsel. Wall alleges that his constitutional rights were violated by the defendants' monitoring and/or recording of his consultations with an attorney who represented him on pending state court criminal charges. This case is before the court on the parties' cross motions for summary judgment, (Docket Item Nos. 53, 56, 62) (collectively “Motions”). None of the parties has requested a hearing on the Motions, making the matters ripe for disposition. For the reasons contained in this Memorandum Opinion, I will deny Wall's motion for summary judgment and I will grant the defendants' motions for summary judgment on all claims except Wall's claims of violation of his right to counsel and his freedom of speech.

         I. Facts[1]

         In his sworn Second Amended Complaint, (Docket Item No. 29-1), Wall alleged that, on April 5, 2016, he was escorted to the Common Visitation Room at Red Onion for a consultation with Lonnie L. Kern, (“Kern”), an attorney who had been appointed by the Wise County Circuit Court to represent Wall on two criminal assault and battery charges set for trial on May 27, 2016. Wall alleged that Control Booth Officer E. Rasnick instructed the escorting correctional officers to place Wall in Booth #10 and, then, told Officer R. Mefford that Wall's attorney visit “needed to be recorded.” Wall stated he was placed in Segregation Booth #10 with his attorney, Kern, seated in the Common Visitation Room, (“Visitation Room”), on the other side of a window in Booth #10.

         Wall alleged that the Visitation Room at that time was equipped with rapid-eye surveillance cameras, which could record video but not audio. Wall stated that, after being placed in the booth, he saw Mefford place a small, handheld Sony video camera on a vending machine approximately 6 feet from where Kern was seated. Wall described the video camera as one capable of recording both video and audio and said that Mefford pointed the camera directly at Wall and Kern. Wall alleged that he saw a red light on the camera, indicating it was recording, so he did not feel comfortable discussing his cases with Kern, knowing that his conversation with Kern was being recorded. Wall further alleged that, a short time later, Correctional Officer J. Testerman came and sat down in the Common Visitation Room approximately 8 feet from Booth #10 and listened to the conversation between Wall and Kern. At that point, Wall stated, he indicated to Kern that he “was done talking” because Testerman could overhear their conversation.

         Wall alleged that he met with Kern at Red Onion again on April 16, 2016. Wall stated that, on this occasion, there was no handheld camera or correctional officer who could overhear the conversation present in the Visitation Room. Wall stated that Kern informed him that, when Kern had scheduled the April 5 meeting, he had been assured that the meeting would occur when no one else was present in the Visitation Room.

         Wall alleged that he had a third meeting with Kern at Red Onion on April 26, 2016. During this meeting, Wall alleged, Officer J. Barker stayed in the Visitation Room and repeatedly walked through the room, lingering in the area of Booth #10, overhearing Wall's conversation with Kern. Wall stated that he, again, told Kern that he was uncomfortable talking with him about the pending criminal charges while correctional officers were monitoring their conversation. Wall also alleged that, subsequent to his meetings with Kern, he learned that other Red Onion inmates had been required to conduct meetings with criminal defense attorneys under similar circumstances.

         Wall also has supplied an Affidavit to the court for consideration on the Motions. (Docket Item No. 61-1.) In this Affidavit, Wall alleged that defendant Rasnick was named as a victim in the Wise County assault and battery charges on which Kern was appointed. Wall attached a copy of the Indictment against him to his Affidavit. (Docket Item No. 61- 4.) Wall also alleged that Virginia Department of Corrections, (“VDOC”), Operating Procedure, (“OP”), 866.3 states: “All offenders … shall have access to counsel and confidential communications with licensed attorneys through … visits.” Wall also attached a copy of OP 866.3 to his Affidavit. (Docket Item No. 61-8.) Wall further alleged that OP 851.1 states: “Communications between Attorney and Offender will be monitored only by sight.” Wall also attached a copy of OP 851.1 to his Affidavit. (Docket Item No. 61-9.) A review of OP 851.1 shows that it states: “Conversations between attorneys and offenders will be monitored only by sight.” (Docket Item No. 61-9 at 10.) Walls also attached a copy of the Red Onion Visitation Post log book showing that Mefford signed the log book on April 5, 2016, stating that Wall's visit with “Attorney L. Kern” began at 1:45 p.m. and was completed at 2:49 p.m. (Docket Item No. 61-15 at 2.)

         In support of their motions, the defendants have submitted an Affidavit from D. Still, a Captain at Red Onion. (Docket Item No. 54-1.) In this Affidavit Still stated that Wall was placed in Booth #10 and his counsel, Kern, was placed in the visitation room for their April 5, 2016, meeting. Still stated that the glass in the window in Booth #10 had been removed and replaced with a mesh screen that allowed attorneys and offenders to hear each other without the use of a telephone. Still stated that, because contact visits were scheduled to take place in the visitation room on April 5, 2016, a video camera was placed inside of the visitation room for security purposes to monitor the offender contact visits. Still said that this was standard practice at Red Onion during offender visits. He stated that the video camera was not pointed directly at Wall and Kern and was located “nearly” 20 feet away from Wall and Kern. Still stated, “The video did not and would not have picked up any audio feed from the visit offender Wall had with his attorney. Further, if no security incidents arise in the visitation room, the video is erased - as was the case for the video that was recorded on the above date for offender Wall's visit with his attorney.” Still also stated, “attorney visits are not typically scheduled on a day that there are contact visits in the visitation room so this was a rare occurrence.” Defendant Testerman also submitted an Affidavit in support of the defendants' motions. (Docket Item No. 54-2.) In this Affidavit, Testerman stated:

         On April 5, 2016, I did not go to the visitation room, sit with my back facing offender Wall and engage in listening to him and his attorney's conversation as he alleges. I do not listen to any offender's conversations when I am assigned to the visitation room, rather I monitor the visitation room and occasionally move throughout the room to monitor the offenders['] visitations.

         Defendant Barker also submitted an Affidavit in support of the defendants' motions. (Docket Item No. 54-3.) In this Affidavit, Barker stated:

On April 26, 2016, I was not assigned to the visitation room. I was actually assigned to C-building on that date. I do not recall being in the visitation room that day and I do not recall making any rounds around booth 10 to hear any conversation between [Wall] and his attorney as he alleges in his lawsuit.

         Defendant Mefford also submitted an Affidavit in support of the defendants' motions. (Docket Item No. 54-4.) In this Affidavit, Mefford stated:

On April 5, 2016, I was not assigned to the visitation room for offender visitation but I do recall being in the visitation room at some point on that day. However, concerning offender Wall's allegations in his lawsuit, I was not instructed by Corrections Officer E. Rasnick to set up a video camera inside of the visitation room on the above date nor did I set a camera on top of a soda ...

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