Washington v. McLean County Jail et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Anthony M. Washington, 	)
)
Plaintiff, 	) 	ORDER GRANTING DEFENDANTS’
) 	MOTIONS FOR SUMMARY
vs. 	) 	JUDGMENT
)
Reliance Telephone Systems and 	)
McLean County, 	) 	Case No. 1:19-cv-124
)
Defendants. 	)
Before the court is a Motion for Partial Summary Judgment filed by Defendant McLean
County. 	(Doc. No. 44). 	Also before the court is a Motion for Summary Judgment filed by
Defendant Reliance Telephone Systems (“Reliance”). (Doc. No. 53). For the reasons that follow,
both motions are granted.
I. 	BACKGROUND
Plaintiff Anthony M. Washington (“Washington”) was a pretrial detainee at the McLean
County Jail (hereafter referred to as the “Jail”) in Washburn, North Dakota, when he initiated the
above-captioned action pro se and in forma pauperis. 	Since initiating this action he has been
convicted of two Class A misdemeanors and served the sentence imposed by the state district court.
He now resides in Detroit, Michigan.
Washington had one claim against McLean County and Reliance that survived initial review,
the gist of which is that he was denied the ability to privately communicate with counsel while in
custody in violation of his constitutional rights.
On March 15, 2021, McLean County filed a motion for summary judgment. That same day
Reliance filed a motion for partial summary judgment. Both motions have now been fully briefed
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and are ripe for the court’s consideration.
II. 	STANDARD OF REVIEW
Summary judgment is appropriate when the evidence, viewed in a light most favorable to
the non-moving party, indicates that no genuine issues of material fact exist and that the moving
party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, 490 F.3d 648, 654
(8th Cir. 2007); see Fed. R. Civ. P. 56(a). Summary judgment is not appropriate if there are factual
disputes that may affect the outcome of the case under the applicable substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence
would allow a reasonable jury to return a verdict for the non-moving party. Id. The purpose of
summary judgment is to assess the evidence and determine if a trial is genuinely necessary.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Court must inquire whether the evidence presents a sufficient disagreement to require
the submission of the case to a jury or whether the evidence is so one-sided that one party must
prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.
2005). The moving party bears the responsibility of informing the court of the basis for the motion
and identifying the portions of the record which demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The non-moving
party may not rely merely on allegations or denials in its own pleading; rather, its response must set
out specific facts showing a genuine issue for trial. Id.; Fed. R. Civ. P. 56(c)(1). If the record taken
as a whole and viewed in a light most favorable to the non-moving party could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial and summary
judgment is appropriate. Matsushita, 475 U.S. at 587.
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III. 	DISCUSSION
A. 	Underlying Facts
The following facts are either undisputed or are presumed to be true for the purposes of this
order.
Washington was charged in McLean County by way of an Information with two Class C
felonies, a Class A misdemeanor, and a Class B misdemeanor. (Doc. Nos. 46-11, 46-12). He was
arrested in Michigan and extradited to North Dakota. (Doc. No. 46-10). He arrived in North Dakota
and was booked into the Jail on May 18, 2019. (Doc. No. 46-10). He was first represented by
attorney Paul Merkins and, when Mr. Merkins was granted leave to withdraw, by attorney Steven
Balaban. (Doc. Nos. 46-11 through 46-19). 	Pursuant to an agreement he reached with the
prosecution, he entered guilty pleas on October 2, 2022, to two Class A misdemeanors and was
sentenced by the state district court to 360 days incarceration, with 156 days credit for time served.
(Doc. No. 46-20, 47). He served his sentence at the Jail. He was discharged from the Jail on or
about February 29, 2022.
Washington learned within months of being booked into the Jail that several of his telephone
calls to counsel had been recorded. 	He initiated that above-entitled action pro se and in forma
pauperis on June 20, 2019. (Doc. Nos. 1 through 6). He alleged that Jail staff had intentionally
monitored, listened in on, and otherwise recorded several of his telephone calls with counsel. (Doc.
No. 6). He further alleges that the recordings of these calls and/or the information gleaned from
these calls by staff were passed to the prosecution for use against him in his criminal case. 	(Id.).
The prosecuting State’s Attorney has attested that he neither has any information or used any
information from Washington’s attorney calls against him or to gain an unfair advantage in his
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criminal case. (Doc. No. 47). Jail staff who had contact with Washington while in custody have
also attested that they did not direct the recording of or otherwise listen in on Washington’s attorney
calls and did not otherwise conspire with or provide information to the prosecutors in Washington’s
criminal case. (Doc. Nos. 48 through 52).
The Jail has a “custody manual” that provides the following with respect to inmate telephone
calls:
502.8 INMATE TELEPHONE CALLS
Every inmate detained in this facility shall be entitled to at least one completed
telephone call upon being admitted and no later than three hours after arrest. The
calls may be of a duration that reasonably allows the inmate to make necessary
arrangements for matters that he/she may be unable to complete as a result of being
arrested. The calls are not intended to be lengthy conversations and the custody staff
may use their judgment in determining the reasonable duration of the calls. If it is
determined that the person is a custodial parent with responsibility for a minor child,
the person shall be entitled to make such additional telephone calls as reasonably
necessary for the purpose of arranging care for the minor child.
There is no obligation for the custody staff to make a telephone call on an inmate's
behalf, for example in the case of a person who is so intoxicated that he/she cannot
make a call. The custody staff is not required to wake an intoxicated person so that
the person may complete a call. An intoxicated person should be provided the
opportunity to make the telephone calls once the person awakes.
502.8.1 TELEPHONE CALL PROCEDURES
The Office will pay the cost of local calls. Long distance calls will be paid by the
inmate, using calling cards or by calling collect.
Calls between the inmate and his/her attorney shall be deemed confidential and shall
not be monitored, eavesdropped upon or recorded.
502.8.2 ONGOING TELEPHONE ACCESS
Ongoing telephone access for inmates who are housed at this facility will be in
accordance with the Inmate Telephone Access Policy.
(Doc. No. 46-6) (emphasis added).
The Jail also has an inmate handbook to which Washington had continuous access while he
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was incarcerated. (Doc. Nos. 7, 8, 46-5 at pp. 61-62, and 48). There were at least two versions of
the handbook, the first dated March 1, 2016, and the second dated November 1, 2019, that were in
circulation during the pendency of Washington’s incarceration at the Jail. (Doc. Nos. 7, 8, 46-35
at p. 16, 48). Both versions provided the following with respect to telephone calls by detainees:
You are allowed one (1) initial call upon admission at County Expense. The initial
call will not be given until booking process and fingerprinting is completed. Inmates
housed for agencies under contract do not receive the initial telephone call. All other
calls you make are at your own expense. Personal phone calls may be made &
received from 7:00 a.m. to 10:00 p.m. daily on the phones located in or near your cell
area. Directions on how to use the phone is posted in your cell area. You may
purchase phone cards from the McLean County Jail from the Turnkey Kiosk. There
is not a refund for lost cards or for time left on the card when you leave. All calls are
recorded and may be monitored. You may check for incoming calls by dialing the
first three (3) letters of your last name. Voice messages are only saved for three (3)
days. All calls made to health care providers, clergy, human services, attorneys and
bondsman will have priority over personal calls and you may make or receive these
calls at any time. If you are indigent, you will be allowed (1) personal calls per week,
which will be approved by the Jail Administrator. All long distance calls you make
will be at your own expense. You may use a calling card or it must be made
COLLECT. This includes calls made to health care providers, clergy, human
services, attorneys and bondsman. You are allowed 3 minutes per call for personal
calls. Keep in mind the Correction Officers have other duties and personal phone
calls are secondary to security duties. All calls are recorded and possibly monitored.
If your call is to an attorney and you do not want the call recorded, you have to
request the call be made on a non-recorded line. All other calls requested on a
non-recorded line will be at officer's discretion.
(Doc. Nos. 7 at p. 5, 8 at p. 5) (emphasis added). 	Hard copies of the handbook were placed in the
Jail’s dorm areas. (Doc. No. 46-35 at pp. 61-62). A digital copy of the handbook was also loaded
onto a kiosk that the Jail’s inmates could access. (Id. at p. 16).
The record reflects that Washington was able to review the handbook and familiarize himself
with its contents. First, a printout from the aforementioned kiosk confirms that Washington read the
handbook by May 29, 2019, at 5:59 AM. (Doc. No. 46-4). Second, Washington testified at his
deposition that there was a copy of the handbook in the dorm area that no one used but him. 	(Doc.
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Nos. 46-5, pp. 61-62).
The record also reflects that Washington was aware of his right to private conversations with
counsel and what the Jail required of him to arrange for such conversations. Again, he had access
to and was familiar with the handbook. Additionally, at his deposition, he acknowledged that he had
been reacquainted with his right to private conversations with counsel when booked into the Jail and
was aware that he would have to make arrangements with Jail staff to use the telephone in the
visitation booth in order to privately converse with counsel.
Q. 	So, were you on notice, on the first day of your booking, that you could have
confidential communications with your attorney if you specifically requested
them?
A. 	Yes.
Q. 	So, your claim here is that -- it seems to me that you weren't aware that your
calls were being recorded.
A. 	No.
Q. 	Maybe you had been given some indication that your calls were going to be
recorded, unless you requested otherwise; is that correct?
A. 	Okay, yes. So, this right here is not for the jail. The paper that you read, this
is what you sign when you are going to bond hearing. You have to go to ITV
court, which is like a Zoom court. So, this is for Zoom court and me talking
to my client in Zoom court without the court reporter lady, you know, the
people that's there. Because it's Zoom court. ITV is like this, but it's for bond
hearings. So, this is referring to bond hearings. This is not referring to the
running of the jail. This is what I had to sign when they made my bond.
When they made my bond 10,000 cash only for a misdemeanor. So, this is
what this was for, the ITV. This has nothing to do with Reliance. This has
nothing to do with McLean County jail. The reason why it says McLean
County Jail Courthouse and Burleigh Courthouse, is because the judges from
from Burleigh Courthouse. McLean doesn't have any judges. They all -- but
they have a big case load. 	So, by them having a big case load, and low
judges, they recoup their judges from Bismarck. So, the judges come from
the Bismarck area. 	Go to their chambers. 	Use ITV. 	Knock down the
population because they doing court from T.V. versus transporting them next
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door for dispositions and preliminary exams and things.
Q. 	So, your court appearances -- during your court appearances, you were
located at the McLean County jail; is that correct?
A. 	Yes.
Q. 	And so, regardless of whether there is a court document or a McLean County
document or a Reliance document, it does put you on notice that you have the
right to request that your attorney-client communications are not recorded,
correct?
A. 	Yes. 	I've done that numerous times. 	That's how we have the five calls
without all the calls being processed with him. Those were all requests, or
he called in. They don't even have -- all of it is not even accurate. Because
they only have when he picked up.ꞏ There was plenty of times, when I called,
that he didn't pick up. None of those are registered. 	They only showing
when he called me. They are not showing when I called him.
Q. 	Sure. That makes sense. So, that list of calls that you had to use kind of a
different phone booth to make?
A. 	Yes.
Q. 	You were aware that you could do that because this document let you know
that you could make private attorney-client calls, correct?
A. 	Right.ꞏ I was aware that I can -- well, from being in prison before, I knew
that you have to ask for attorney-client privileges unless they say that you
don't....
* * *
Q. 	So, you knew about this separate phone system that you could use to call
your attorneys if you wanted to communicate privately because you've before
in other settings like this in the past?
A. 	Yes, right.
Q. 	So, you knew to ask for it?ꞏ And you knew that was an option for you,
correct?
A. 	Yes. They didn't even have to state it, because I know it's procedure and
protocol. That's why I asked....
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(Doc. No. 46-35 at pp. 141-145). Third he had ongoing access or the ability to access the inmate
handbook.
Inmates can make calls from telephones located in the Jail’s dorm areas. (Doc. No. 46-35
at pp. 36-37). 	These telephones are connected to a card-based system or service installed and
maintained by Reliance. From these telephones inmates can call collect or via a prepaid calling card
purchased through Reliance from a kiosk. 	(Doc. Nos. 48). 	Posted near these telephones were
placards that (1) instructed inmates on how to use the phone system, (2) listed the costs/rates for
using the phone system, and (3) advised inmates that their calls “may be recorded or monitored.”
(Doc. No. 46-5). At the beginning of collect calls, an automated message advised inmates their
conversations may be subject to monitoring and recording. (Doc. No. 48).
Inmates could also make calls using a telephone in the visitation booth. This telephone was
not tied directly into Reliance’s system and therefore was not subject to the same monitoring and
recording as telephones in the dorm areas. (Id.). 	It appears from the record that Washington
appreciated that this was the telephone which he could make private calls and that he would have
to make the necessary arrangements with Jail staff in order to use/access it.
Q. 	So, here [referring to Exhibit 10] it says you may have confidential
communications with your defense attorney if they’re requested. Does that
sound right?
A. 	Yes.
Q. 	So, were you on notice, on the first day of your booking, that you could have
confidential communications with your attorney if you specifically requested
them?
A. 	Yes.
* * *
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Q. 	You were aware that you do that because this document let you know that
you could make private attorney-client calls, correct?
A. 	Right. I was aware that I can – well, from being in prison before, I knew that
you have to ask for attorney client privileges unless they say that you don’t.
* * *
Q: 	So, your court appearances,–during your court appearances, you were located
at the McLean county Jail; is that correct.
A: 	Yes.
Q: 	And so, regardless of whether there is a court document or a McLean County
document or a Reliance document, it does put you on notice that you have the
right to request that your attorney-client communications are not recorded,
correct?
A: 	Yes. 	I’ve done that numerous times. 	That’s how we have the five calls
without the calls being processed with him. Those were all requests, or he
called in . They don’t even have – all of it is not even accurate. Because
they only have when he picked up. There was plenty of times, when I called,
that he didn’t pick up. None of these are registered. They only showing me
when he called. They are not showing when I called him.
Q: 	Sure. That makes sense. So. That list of calls that you had to use kind of a
different phone booth to make?
A: 	Yes.
Q: 	You were aware that you could do that because this document let you know
that you could make private attorney-client calls, correct?
A: 	Right. I was aware that I can – well, from being in prison before, I knew that
you have to ask for attorney-client privileges unless they say that you don’t.
***
Q: 	So, you knew about this separate phone system that you could use to call
your attorneys if you wanted to communicate privately because you’d be
before in the other settings like this in the past?
A: 	Yes, right.
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Q: 	So, you knew to ask for it? 	And you know that was an option for you,
correct?
A: 	Yes. This didn’t even have to state it, because I know it’s procedure and
protocol. That’s why I asked.
(Doc. No. 46-35 at pp. 36-37). The Jail kept a record of who inmates call from this telephone and
when. They did not record the substance of these calls, however. 	(Doc. Nos. 46-9, 46-22, 46-23,
and 48-52).
B. 	Analysis
1. 	Monell liability
“Section 1983 is not itself a source of substantive rights, but merely provides a method for
vindicating federal rights elsewhere conferred.” 	Albright v. Oliver, 510 U.S. 266, 271 (1994)
(internal quotation marks omitted). To state a claim for relief under § 1983, a plaintiff must allege,
first, the violation of a right secured by the Constitution or laws of the United States and, second,
that the alleged deprivation was committed or caused by a person acting under color of state law.
42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988).
“A governmental entity cannot be held vicariously liable for its agent's acts under § 1983.”
Brockington v. City of Sherwood, 503 F.3d 667, 674 (8th Cir. 2007). 	It may be held liable under
Section 1983 only if its policy or custom caused the deprivation of the right protected by the
constitution or federal law. See Angarita v. St. Louis Cnty., 981 F.2d 1537, 1546 (8th Cir. 1992)
(citing Monell v. Department of Social Services, 436 U.S. 658, 690–91 (1978)); see also Ware v.
Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir. 1998) (“A plaintiff may establish municipal liability
under § 1983 by proving that his or her constitutional rights were violated by an action pursuant to
official municipal policy or misconduct so pervasive among non-policymaking employees of the
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municipality as to constitute a custom or usage with the force of law.” (internal quotation marks
omitted)).
“Official policy involves ‘a deliberate choice to follow a course of action made from among
various alternatives’ by an official who is determined by state law to have the final authority to
establish governmental policy.” Ware v. Jackson Cty., 150 F.3d 873, 880 (8th Cir. 1998) (quoting
Jane Doe A v. Special Sch. Dist. of St. Louis Cty., 901 F.2d 642, 645 (8th Cir 1990)). Alternatively,
“custom or usage” is demonstrated by:
(1) The existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity's employees;
(2) Deliberate indifference to or tacit authorization of such conduct by the
governmental entity's policymaking officials after notice to the officials of that
misconduct; and
(3) The plaintiff's injury by acts pursuant to the governmental entity's custom, i.e.,
proof that the custom was the moving force behind the constitutional violation.
Ware, 150 F.3d at 880 (quotation omitted).
“A failure to properly train employees is one way in which an entity can exhibit deliberate
indifference toward the rights of others.” Harvey v. Cnty. of Ward, 352 F. Supp. 2d 1003, 1012
(D.N.D. 2005) (quoting Turney v. Waterbury, 375 F.3d 756, 762 (8th Cir. 2004)). “Only where
a [governmental entity's] failure to train its employees in a relevant respect evidences a ‘deliberate
indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a ...
‘policy or custom’ that is actionable under § 1983.” Id. (alterations in original) (quoting City of
Canton v. Harris, 489 U.S. 378, 389 (1989)). “A plaintiff may also be able to show a governmental
entity was deliberately indifferent by establishing ‘that in light of the duties assigned to specific
officers or employees the need for more or different training is so obvious, and the inadequacy so
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likely to result in the violation of constitutional rights, that the policy makers of the [county] can
reasonably be said to have been deliberately indifferent to the need.’” Id. (alternations in original)
(quoting Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir.1996)).
Here, Washington does not dispute that the Jail has written telephone policies and procedures
that are memorialized in the Sheriff’s Manual. 	Rather, he appears to take the position that in
practice, there is not strict adherence to these policies and procedures and that it is customary at the
Jail to record calls or otherwise listen in on calls without regard to who the inmate was calling or
from which telephone the inmate was making the call.
Q. So Anthony, let’s look at Exhibit Number 6. This is a page out of the McLean
County sheriff’s office custody manual. Which are the policies and procedures at the
jail. And about the middle of the page it says 502.8.1, telephone call procedures; do
you see that?
A. Yes.
Q. Can you read what is says under that sentence, a few sentences.
A. Which section?
Q. 502.8.1
A. The office will pay the cost of local calls. Long distance calls will be paid by the
inmate using calling cards or by calling collect. Calls between the inmate and his
attorney shall be deemed confidential and shall not be monitored eavesdropped or
recorded.
Q. So, I’m telling you that was the official policy of the McLean County jail when
you were an inmate there during the entire time period. Do you have anything that
suggests that was not the policy?
A. 	No. 	They don’t even let you see this. 	We never got this. 	We get inmate
handbooks. We was never able to see this. Even though it is true. They are deemed
confidential and shall not be monitored, eavesdropped on, or recorded. But the thing
is, how can they differentiate between the two when there is no system in place to
even differentiate between the two. So, how can you tell me that you’re not listening
to my attorney phone call when you don’t know if I made an attorney phone call
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because the way that I’m on – all my phone calls are long distance. So the way that
I communicate is putting in a calling card, which says it goes straight through.
(Doc. No. 46-35 at p. 20).
There is is no dispute that several of Washington’s calls with counsel were recorded.
However, there is no evidence in the record to support the assertion that the Jail or Reliance had a
policy or custom of purposely or intentionally recording attorney-client calls.
It is apparent from the record that Washington’s calls to counsel were not recorded or
otherwise monitored because of any standing directive or practice of recording such calls. Rather,
these calls were recorded because they were made from telephones in the dorm areas that are
connected to Reliance’s system. Staff would have no way of knowing ahead of time who inmates
intended to call from these telephones. Inmates were or should have been aware that calls placed
from these telephones were monitored and/or recorded; they were so warned in the inmate
handbook, by staff, by the placards near these telephones, and by the automated messages that
played on these telephones when placing a collect call. 	The Jail had another telephone in the
visitation booth that was not connected to Reliance’s system and from which inmates could place
confidential calls to counsel.
To safeguard against recording against attorney-client communications, the Jail had a
procedure in place. This procedure was memorialized in the inmate handbook that Washington has
acknowledged that he was intimately familiar with. If he wanted to call his attorney and he did not
want to have the call recorded, he would have to request the call be made on a non-recorded line,
which was generally understood to be a telephone in the visitation booth.
The only calls of Washington’s that were recorded were those he placed form the telephones
in the dorm areas. The calls to counsel that Washington made from the visitation booth were not
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recorded. 	This belies Washington’s assertion that it was 	policy or custom to record inmates
telephone calls with counsel. Conversely, it bolster’s the Jail’s assertion that Washington was aware
of its policy regarding calls to counsel and had access to private line.
Washington is critical of the fact the visitation booth and its telephone were not always
available at his convenience and that he had to make arrangements with Jail staff to use it. He also
supposes that, while calls made from the visitor booth telephone were not recorded, they were still
subject to monitoring by staff. His “evidence” of this is that the prosecution was always one step
ahead of him as he has acknowledged that he never directly observed anyone listening in on his
conversations.
First, the fact that Washington was required to make arrangements with staff to use the
telephone in the visitation booth and that, due to institutional demands, staff may not have been
immediately able to accommodate his requests (and required him to wait to use the telephone) is
not evidence of a policy or custom of monitoring attorney-client calls. If anything, it is a reflection
of the balancing act that staff had to undertake when attending to the needs and wants of other
inmates in accordance with the Jail’s policies. Washington acknowledged as much in his deposition
when he observed that the Jail had only four staff members at any given time to attend to the
demands of thirty inmates. (Doc. No. 46-35 at p. 18). 	Any inadequacies in the implementation of
the Jail’s policies regarding the visitation booth do not rise to the level of a showing of a deliberate
choice to follow a course of action and therefore do not constitute an unconstitutional policy or
custom. Andersen v. Cnty. of Becker, No. CIV 08-5687 ADM RLE, 2009 WL 3164769, at *8 (D.
Minn. Sept. 28, 2009).
Second, supposition and suspicion, without more, is not enough to create a material issue of
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fact and therefore avoid summary judgment. Washington’s perception that the prosecution was
always one step ahead of him is not evidence of any nefarious activity undertaken by the prosecutor
or the Jail staff. As for the Jail’s requirement that inmates be proactive and take an affirmative step
in safeguarding the privacy of their communication with counsel, it is not tantamount to a policy or
custom of monitoring calls with counsel or otherwise steering inmates from the telephone in the
visitor’s booth to telephones in the dorm areas that were subject to monitoring. It is also not
demonstrative of indifference, deliberate or otherwise.
In his deposition Washington fixated on the prerecorded message that played when making
a collect call as opposed to a paid call from telephones in the dorm areas. Apparently collect calls
placed from the telephones in the dorm areas featured the automated warning regarding monitoring
whereas prepaid calls did not. By Washington’s account, he made the majority of his calls using
prepaid calling cards and so was not warned that his calls could be subject to monitoring.
A. 	. . . . The ones in the dorm were more intimate than the ones in the booth.
Because I had more dorm because they wouldn't give me the attorney in the booth
because they were so busy. 	It was in intimate jail. 	So, if there's only four staff
members and there's thirty inmates, they're outweighed. So I used – most of my
phone calls were in the dorm instead of – it was on a Reliance phone call versus
being on a jail phone call.
(Doc. No. 46-35 at p. 18).
Washington’s attempt to differentiate collect calls from prepaid calls makes no substantive
difference in the final analysis. 	The important takeaway here is the calls were made from the
telephones in the dorm areas, which means that they were connected to Reliance’s system and
therefore known to be monitored. Regardless of whether or not an automated warning played at the
outset of prepaid calls, there were still the warning on the placards nears these telephones, the
warning in the inmate handbook, and the information provided to Washington at the time of his
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booking regarding the Jail’s telephone policies and procures.
Washington was aware that he would have to make arrangements with Jail staff to use the
telephone in the visitation booth if he wanted to ensure that his conversation with counsel was not
recorded. 	He was also on notice that calls made from telephones in the dorm areas could be
recorded and yet made the conscious choice to use them when calling counsel.
Q. 	So, you knew about this separate phone system that you could use to call
your attorneys if you wanted to communicate privately because you've been
in other settings like this in the past?
A. 	Yes, right.
Q. 	So, you knew to ask for it?ꞏ And you knew that was an option for you,
correct?
A. 	Yes. They didn't even have to state it, because I know it's procedure and
protocol. That's why I asked....
(Doc. No. 46-35 at p. 37).
In sum, the record is devoid of any evidence of an unconstitutional policy at the Jail. The
record is also devoid of any “widespread, persistent pattern of unconstitutional misconduct by
government that government policy makers either were indifferent to or tacitly authorized.”
Andersen v. Cnty. of Becker, No. CIV 08-5687 ADM RLE, 2009 WL 3164769, at *9 (D. Minn.
Sept. 28, 2009). Conversely, there is evidence–affidavits from staff members who had contact with
Washington–that no efforts were undertaken by staff to purposely record Washington’s attorney-
client 	communications, 	that 	staff 	did 	not 	eavesdrop 	on 	Washington’s 	attorney-client
communications, and that staff did not provide information or assistance to those prosecuting
Washington’s criminal case. (Doc. Nos. 48-52). 	As a consequence, Washington has not met the
requirements of Monell. His claim therefore does not survive summary judgment.
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2. 	Fifth and Sixth Amendment
Even if Washington could satisfy the requirements of Monell, his claims nonetheless fail.
Insofar as Washington claims that information obtained from his recorded or monitored calls was
used against him, the record is devoid of any substantiating evidence. As noted above, Washington
has presented nothing but suspicion and supposition where McLean County has provided affidavits
from both the prosecutor and jail staff in which they attest that no information gleaned from these
claims was circulated, much less used.
Insofar as Washington may be claiming that the recording or monitoring of his calls violated
his Sixth Amendment right to counsel, he has failed to demonstrate that he suffered any prejudice.
To raise a successful § 1983 claim for the violation of the Sixth Amendment, Washington must
demonstrate that there was an intrusion into the attorney-client communication and that he was
prejudiced as a result. Weatherford v. Bursey, 429 U.S. 545, 558 (1977). Here, there is no evidence
that the prosecution ever listened to or otherwise used the recording of Washington’s conversations
with counsel. 	Moreover, it is apparent from the record that Washington did use the means at his
disposal to safeguard his communications with counsel. He repeatedly chose to call his attorneys
on lines he knew were monitored instead of making the arrangements necessary with staff to use the
private line available for such communications.
IV. 	CONCLUSION
Several of Washington’s attorney-client calls were recorded. However, there is nothing in
the record to suggest that they were recorded by the Jail and Reliance due to any policy, formal or
informal, or custom. The Jail had safeguards in place for ensuring that inmates could privately
converse with counsel. Washington, perhaps due to convenience, impatience, or indifference, did
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not avail himself of these safeguards through no apparent fault of the Jail staff or Reliance and chose
to call his attorney from telephones he knew were monitored. 	Accordingly, McLean County’s
Motion for Partial Summary Judgment (Doc No. 44) and Reliance’s Motion for Summary Judgment
(Doc. No. 53) are GRANTED.
Dated this 2nd day of December, 2022.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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