Bansal v. Pavlock
Bansal v. Pavlock
2008 WL 11450437 (E.D. Pa. 2008)
August 19, 2008
Diamond, Paul S., United States District Judge
Summary
The court found that the Government had not violated any of Plaintiff's constitutional rights when they monitored and recorded his telephone conversations while he was in custody at the Federal Detention Center. The court also found that the Government's routine recording of a prisoner's telephone calls did not violate the Fourth Amendment, and that a prison official's review of an inmate's non-privileged mail did not violate the First Amendment. As a result, the court granted Defendants' Motion for Summary Judgment and dismissed all of Plaintiff's claims.
Additional Decisions
Akhil BANSAL, Plaintiff
v.
James R. PAVLOCK, et al., Defendants
v.
James R. PAVLOCK, et al., Defendants
CIVIL ACTION NO. 07-703
United States District Court, E.D. Pennsylvania
Filed August 19, 2008
Counsel
Akhil Bansal, Minersville, PA, pro se.Virginia A. Gibson, Hogan Lovells US LLP, Mary Catherine Frye, United States Attorney's Office, Philadelphia, PA, for Defendants.
Diamond, Paul S., United States District Judge
ORDER
*1 AND NOW, this 19th day of August, 2008, upon consideration of Defendants' Motion to Dismiss or in the Alternative for Summary Judgment (Doc. No 44), Plaintiff's Response (Doc. No. 51), Defendants' Reply, (Doc. No. 49), Plaintiff's Supplemental Response to Defendants' Motion (Doc. No. 52), and all related materials, it is hereby ORDERED that the Motion is GRANTED as to all counts and all Defendants as follows:
1. On April 6, 2005, the grand jury sitting in this District indicted Plaintiff on forty-four counts: two counts of conspiracy to distribute controlled substances (21 U.S.C. § 846), two counts of conspiracy to import controlled substances (21 U.S.C. § 963), two counts of operating a continuing criminal enterprise (21 U.S.C. § 848), two counts of aiding and abetting introduction of misbranded drugs into interstate commerce (21 U.S.C. § 331(a), 333(a)(2); 18 U.S.C. § 2), one count of conspiracy to introduce misbranded drugs into interstate commerce (21 U.S.C. § 331(a), 333(a)(2) ), two counts of conspiracy to commit money laundering (18 U.S.C. § 1956(h) ), ten counts of aiding and abetting international money laundering (18 U.S.C. § 1956(a)(2)(A); 18 U.S.C. § 2), eight counts of aiding and abetting transactional money laundering (18 U.S.C. § 1957; 18 U.S.C. § 2), seven counts of aiding and abetting promotional money laundering (18 U.S.C. § 1956(a)(1)(A)(I); 18 U.S.C. § 2), two counts of international money laundering (18 U.S.C. § 1956(a)(2)(A) ), three counts of transactional money laundering (18 U.S.C. § 1957), and three counts of promotional money laundering (18 U.S.C. § 1956(a)(1)(A)(i) ). See United States v. Bansal, No. 2:05-cr-0193. The grand jury also charged sixteen others as Plaintiff's confederates in an international conspiracy to import and distribute millions of doses of controlled and non-controlled prescription drugs. Bansal, No. 2:05-cr-0193.
2. Thirteen of the forty-four counts with which Plaintiff was charged were eventually dismissed. Id. On April 18, 2006, after a five-and-a-half week jury trial, Plaintiff was convicted on all remaining counts. Id., Doc. No. 561. His conviction under the Continuing Criminal Enterprise statute carried with it a twenty-year mandatory minimum term of imprisonment. 21 U.S.C. § 848. Under the advisory Guidelines, Plaintiff's sentencing range was life imprisonment. I granted the Government's request for a downward variance, however, and, on December 17, 2007, sentenced Plaintiff's to thirty-years incarceration. Bansal, No. 2:05-cr-0193, Doc. No. 1062.
3. On February 23, 2007, Plaintiff filed a pro se Complaint alleging that during his prosecution, Assistant United States Attorneys James Pavlock and Frank Costello, Federal Detention Center employees Darren Howard and Allen Gonzalez, the Philadelphia United States Attorney's Office, the Federal Detention Center, the United States of America, and criminal co-defendant Atul Patil violated Plaintiff's rights under the Privacy Act, the Stored Communications Act, the Wiretap Act, and the United States Constitution. See Bansal, No. 2:05-cr-0193; 5 U.S.C. § 552a; 18 U.S.C. §§ 2701, 2510.
*2 4. Plaintiff seeks five hundred million dollars in damages, and asks me to enjoin Defendants from obtaining, using, or disclosing his phone communications and related records. Finally, Plaintiff seeks administrative discipline against Defendants Pavlock, Costello, Howard, and Gonzalez pursuant to 18 U.S.C. §§ 2520(f), 2707(d).
5. Plaintiff filed an Amended Complaint on August 23, 2007. (Doc. No. 30). On October 1, 2007, Plaintiff moved for a Temporary Restraining Order and Preliminary Injunction. (Doc. No. 37). I denied the Motion on February 11, 2008. (Doc. No. 43). On February 27, 2008, Defendants moved to dismiss the Amended Complaint. (Doc. No. 44). On April 6, 2008, Plaintiff responded to the Motion.
6. Plaintiff is presently, or was previously, a Party in six companion matters before this Court: 1) his criminal prosecution; 2) a separate civil action he brought against numerous government lawyers and FBI and DEA agents; 3) a separate civil action he brought against the Drug Enforcement Administration; 4) a civil action against Microsoft Hotmail; 5) a civil action against Server Beach; and 6) the instant case. In moving to dismiss, Defendants refer to events transpiring in Plaintiff's companion civil and criminal cases. Bansal, 2:05-cr-0193; Bansal v. Russ, Civil Action No. 06-cv-4264; Bansal v. Drug Enforcement Admin., Civil Action No. 06-cv-3946; Bansal v. Microsoft Hotmail, Civil Action No. 06-cv-4029; Bansal v. Server Beach, Civil Action No. 06-cv-3932. I may take judicial notice of these events without converting Defendants' dismissal Motion into one for summary judgment. Fed. R. Evid. 201 (judicial notice of generally known facts, or those capable of accurate and ready determination, may be taken “at any stage of the proceeding”); see, e.g., In re Briscoe, 448 F.3d 201, 221 (3d Cir. 2006) (taking judicial notice of prior proceedings pursuant to Fed. R. Evid. 201). Nonetheless, on July 14, 2008, I notified the Parties that I would treat Defendants' Motion as one for summary judgment. (Doc. No. 50). I gave the Parties until August 15, 2008 to submit pleadings, depositions, answers to interrogatories, admissions, affidavits, or any other material in support of or in opposition to the Motion. Id.; Fed. R. Civ. P. 56(c); Rose v. Bartle, 871 F.2d 331, 340 (3d Cir. 1989) (before a court may consider a motion for summary judgment, the parties shall have at least ten days notice and the opportunity to submit “pleadings, depositions, answers to interrogatories, and admissions on file, together with ... affidavits” to support or oppose the motion).
7. On August 18, 2008, Plaintiff filed a Supplemental Response to Defendants' Motion. (Doc. No. 52). Neither Party has submitted other materials, nor has any Party requested additional time, sought additional discovery, or otherwise indicated an intention to brief this matter further. Accordingly, I will now consider Defendants' Motion for Summary Judgment.
Legal Standards
8. Upon motion of any party, summary judgment is appropriate “if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party must initially show the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). An issue is material only if it could affect the result of the suit under governing law. SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). When responding to a motion for summary judgment, the opposing party may not “rely merely on allegations or denials in its own pleading.” Fed. R. Civ. P. 56(e)(2). Rather, the opposing party must support each essential element of its claim with concrete evidence in the record showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 322-24. This requirement upholds the “underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.” Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (restating Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) ).
*3 9. In deciding whether to grant summary judgment, the district court “must view the facts in the light most favorable to the non-moving party,” and make every reasonable inference in that party's favor. Hugh v. Butler County Family YMCA, 418 F.3d 265 (3d Cir. 2005). Summary judgment is appropriate if, after viewing all reasonable inferences in favor of the non-moving party, the court determines that there are no genuine issues of material fact. See Celotex, 477 U.S. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
10. I have construed Plaintiff's often confusing pleadings and memoranda liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972) (allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers).
Background
11. I have resolved all factual disputes in Plaintiff's favor and construed all facts in the light most favorable to Plaintiff. Even making all reasonable inferences in Plaintiff's favor, however, there are no material factual issues in genuine dispute.
12. Plaintiff was arrested on April 18, 2005 and incarcerated at the FDC, where, on April 19, 2005, he signed an acknowledgment form setting out the Bureau of Prisons' policies on monitoring and recording prisoner telephone calls. (Bansal, No. 2:05-cr-0193, Tr. Dec. 5, 2007 at 16-17, Exs. 1413, 1414).
13. The form provided that the BOP would monitor and record all Plaintiff's calls from the FDC unless Plaintiff told his Case Manager that he wished to call his attorney. The Case Manager would then permit calls to be made from his office and would confirm that the call had been placed to counsel. (Tr. Dec. 5, 2007, at 14:11-18).
14. The BOP tape recorded only Plaintiff's monitored phone calls. It did not tape those calls Plaintiff made through the Case Manager to counsel. (Tr. Dec. 5, 2007, at 14).
15. In preparation for Plaintiff's criminal trial, the Government subpoenaed from the FDC copies of all recordings made of Plaintiff's monitored telephone calls. (Tr. Dec. 5, 2007, at 20-23).
16. During most of his monitored calls, Plaintiff spoke in Hindi. Accordingly, prosecutors asked various people fluent in Hindi -- allegedly including Plaintiff's criminal co-defendant Atul Patil -- to translate some of those conversations. (Tr. Dec. 5, 2007, at 22-23).
17. After obtaining the recordings, the Government realized (from reviewing the telephone numbers listed in the FDC's phone logs of the monitored calls) that even though Plaintiff knew his calls would be monitored and recorded, he had made some calls to his counsel without first notifying his Case Manager. (Tr. Dec. 5, 2007, at 21-22).
18. The Government did not listen to any of these recorded conversations with counsel even though they were not privileged. (Tr. Dec. 5, 2007, at 21-22; 29).
The Instant Lawsuit
19. Plaintiff contends that Defendants' actions in monitoring, recording, translating, and disseminating his prison calls violated his constitutional and statutory rights. I disagree. Accordingly, I will GRANT Defendants' Motion for Summary Judgment and DISMISS Plaintiff's Amended Complaint.
Counts One and Two
20. Plaintiff charges that Defendants violated the Privacy Act, which prohibits government agencies from disclosing any record contained in a system of records without the written consent of the person to whom the record pertains. 5 U.S.C. § 552a(b). The Act provides an exception, however, for “routine use” disclosures made to federal law enforcement officials for law enforcement purposes. Id. at (a)(7). The actions on which Plaintiff bases these Counts -- disclosure to law enforcement officials of an FDC inmate's phone calls -- fall within this “routine use” exception. Id., see Department of Justice Notices, Privacy Act of 1974, System of Records 67 FR 1676201, 2002 WL 516900 (Monday, April 8, 2002) (inmates' phone data and recordings may be disclosed to federal law enforcement officials for law enforcement purposes). Accordingly, Plaintiff's Privacy Act claims fail. Counts One and Two are DISMISSED.
Counts Three and Four
*4 21. Plaintiff next alleges that Defendants violated the Stored Communications Act, which prohibits the intentional accessing of an electronic communication service facility without authorization. 18 U.S.C. § 2701. The Act explicitly provides that it does not apply to the production pursuant to subpoena of conversations taped and maintained by a BOP facility for security purposes. Id. Accordingly, Counts Three and Four are DISMISSED.
Count Five
22. Plaintiff alleges that Defendants violated the Wiretap Act, which prohibits an individual from using or disclosing the contents of any wire, oral, or electronic communication obtained through an invalid interception. 18 U.S.C. § 2511. The Act does not prohibit a person acting under color of law from intercepting a wire, oral, or electronic communication where one of the parties to the communication has given prior consent to such interception. Id. at § 2511(2)(c). An inmate's decision to make telephone calls that he knows will be monitored and recorded constitutes consent under the Federal Wiretap Act. United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000); United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008). The Act also provides that an investigative or law enforcement officer may disclose the contents of such a communication to the extent that such disclosure is “appropriate to the proper performance of his official duties.” 18 U.S.C. § 2517.
23. In his Supplemental Response, Plaintiff argues that the Government has mischaracterized his consent to the FDC recording procedure. (Doc. No. 52, at 2-4). Like the defendants in Footman and Verdin-Garcia, however, Plaintiff was fully informed that his FDC telephone calls would be monitored and recorded. (Tr. Dec. 5, 2007 at 16-17). Indeed, Plaintiff acknowledged in his Amended Complaint that he had “given prior consent to FDC-BOP for such ‘interception’ and ‘recording’ for monitoring purposes ...” (Doc. No. 30, at 8). Plaintiff nonetheless contends that the BOP Defendants somehow acted improperly in disclosing those recordings to the AUSAs. (Doc. No. 52, at 3-4). That disclosure was made pursuant to a valid subpoena. Fed. R. Civ. P. 17(c). Once the prosecutors obtained the recordings, nothing in the Wiretap Act prohibited them from allowing others to translate Plaintiff's conversations from Hindi to English. In these circumstances, there is no legal basis for Plaintiff's claim under the Wiretap Act. Accordingly, Count Five is DISMISSED.
Count Six
24. Plaintiff alleges that disclosure of his monitored and recorded telephone communications chilled his First Amendment right to expression. (Doc. No. 30, at 10). Reasonable restrictions on a prisoner's telephone privileges -- such as those employed at the FDC -- do not violate the First Amendment. Perez v. Federal Bureau of Prisons, 229 Fed. Appx. 55, 57 (3d Cir. 2007) (citing Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986) (a prisoner's rights to use the telephone are “subject to rational limitations in the face of legitimate security interests of the penal institution”) ). The record before me shows that the BOP -- in accordance with its regulations (as fully disclosed to Plaintiff upon his arrival at the FDC) -- monitored and taped Plaintiff's telephone conversations. In response to a valid subpoena, the BOP then provided copies of those tapes to those responsible for Plaintiff's criminal prosecution. I do not see how this violated Plaintiff's First Amendment right to expression.
*5 25. Plaintiff also alleges that Defendants violated his First Amendment rights when they “seized, copied, diverted or disclosed” privileged and non-privileged mail he sent and received while in custody at the FDC. (Doc. No. 30, at 10). In his Response to Defendants' Motion, Plaintiff appears to have dropped this claim. (Doc. No. 51, at 13). In any event, insofar as he continues to contend that Defendants impermissibly interfered with his mail, Plaintiff has offered no evidence to show such interference. Fed. R. Civ. P. 56(e)(2); See Celotex, 477 U.S. at 322-24(the party opposing a motion for summary judgment must support each essential element of its claim with concrete evidence in the record showing that there is a genuine issue for trial). Moreover, a prison official's review of an inmate's non-privileged mail does not, without more, violate the First Amendment. Busby v. Dretke, 359 F.3d 708, 722 (5th Cir. 2004) (“The Supreme Court has never held that reading inmate mail violates the First Amendment.”); see, e.g., Nasir v. Morgan, 350 F.3d 366 (3d Cir. 2003) (policy restricting inmates' outgoing mail did not violate the First Amendment). Accordingly, Plaintiff's First Amendment claims fail. Count Six is DISMISSED.
Count Seven
26. Plaintiff alleges that the AUSA Defendants violated his Fourth Amendment rights by recording privileged attorney-client communications. (Doc. No. 30, at 11). First, it is undisputed that the BOP (not the AUSA Defendants) taped Plaintiff's telephone calls. In any event, routine recording of a prisoner's telephone calls does not violate the Fourth Amendment, particularly when prisoners are told that the conversations are being monitored and recorded. United States v. Amen, 831 F.2d 373, 380 (2d Cir. 1987). For the same reason, Plaintiff's most recent argument that his consent to the monitoring and recording of his phone calls was limited to facilitating prison safety and public safety is unavailing. (Doc. No. 52, at 4); seeAmen, 831 F.2d at 380; see also United States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992) (inmate who knew his phone calls would be monitored and recorded had no expectation of privacy in the content of his telephone conversations under the Fourth Amendment). Accordingly, Plaintiff's Fourth Amendment claim fails on the merits. Count Seven is DISMISSED.
Count Eight
27. Plaintiff alleges that the AUSAs violated his Fifth Amendment right against self-incrimination when they obtained recorded communications from the BOP. (Doc. No. 30, at 11). The Fifth Amendment protects individuals against compelled self-incrimination; it does not prohibit recording a prisoner's freely made statements. United States v. Monia, 317 U.S. 424, 427 (1943). It is undisputed that Plaintiff made his recorded statements freely, knowing his phone calls were monitored. (Doc. No. 30, at 8).
28. Plaintiff also argues that the AUSAs violated his Fifth Amendment due process rights when they obtained his recorded communications without providing notice to Plaintiff. (Doc. No. 30, at 12). First, as Plaintiff has acknowledged, the BOP notified Plaintiff that his calls would be monitored and recorded. That monitoring and taping did not violate due process. Fraise v. Terhune, 283 F.3d 506, 522-523 (3d Cir. 2002) (due process is implicated when prison restrictions impose such hardship on an inmate as to appear atypical in relation to ordinary prison life). The Government's subpoenaing of those tapes in accordance with Fed. R. Crim. P. 17(c)also does not implicate Plaintiff's due process rights. Accordingly, Plaintiff's Fifth Amendment claims fail. Count Eight is DISMISSED.
Count Nine
29. Finally, Plaintiff claims that he was denied his Sixth Amendment rights to effective assistance of counsel and a fair trial when the Government obtained recordings of conversations he had with his attorney. (Doc. No. 30, at 12). As I have already ruled, however, there was no violation of Plaintiff's Sixth Amendment rights. (Doc. No. 43, at 7); (Tr. Dec. 14, 2007, at 4-5). In choosing to speak to his lawyer over a line he knew was monitored and recorded, Plaintiff waived any privilege that otherwise might have obtained. See United States v. Gartner, 518 F.2d 633, 637 (2d Cir. 1975) (attorney-client privilege does attach to communications knowingly made in the presence of a third party); United States v. Melvin, 650 F.2d 641, 645 (5th Cir. 1981) (attorney-client communication is protected from government intrusion only when it is reasonably expected and understood to be confidential). Thus, prison officials may overhear conversations between a defendant and his counsel without violating the Sixth Amendment. See, e.g., United States v. Brown, 484 F.2d 418, 424-425 (5th Cir. 1973)(telephone conversation between incarcerated defendant and his attorney overheard by state officials discharging their prison security responsibilities did not constitute Sixth Amendment violation). Finally, the Government has demonstrated without contradiction that no one listened to the taped conversations between Plaintiff and his counsel. (Tr. Dec. 5, 2007, at 21-22; 29). In these circumstances, I do not believe Plaintiff suffered any constitutional injury. Accordingly, Plaintiff's Sixth Amendment claim fails. Count Nine is DISMISSED.
Qualified Immunity
*6 30. Defendants argue that they are entitled to qualified immunity from any legally cognizable constitutional claims brought by Plaintiff. Because I have determined that all Plaintiff's claims fail on the merits, I need not address the question of qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Conclusion
31. Defendants' Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Defendants, James Pavlock, Frank Costello, Darren Howard, Allen Gonzalez, the Philadelphia United States Attorney's Office, the Federal Detention Center, the United States of America, and Atul Patil, and against Plaintiff, Akhil Bansal.
32. Defendants' Motion has been filed on behalf of all served Defendants. Plaintiff has not served either his original Complaint or his Amended Complaint on Defendant Atul Patil. On March 6, 2008 -- more than 180 days after he had filed his Amended Complaint -- I dismissed without prejudice Plaintiff's action as to Patil. (Doc. No. 45); Fed. R. Civ. P. 4(m)(court may dismiss action that has not been served in the United States within 120 days). On May 28, 2008, I granted Plaintiff's Motion to Reconsider, however, and gave him an additional forty-five days to serve Patil. (Doc. No. 48). Because Plaintiff still has not served Patil, I dismiss this case without prejudice as to Patil, and I dismiss this case with prejudice as to all other Defendants.
33. The Clerk of Court shall close this matter for statistical purposes.
The Warden of the Federal Correctional Institution of Schuylkill shall deliver a copy of this Order to Plaintiff promptly upon receipt.
AND IT IS SO ORDERED.