United States District Court, W.D. Kentucky, Bowling Green Division
N. STIVERS UNITED STATES DISTRICT COURT JUDGE
Charles Henry Ickes, III, proceeding pro se,
initiated this 42 U.S.C. § 1983 action by filing a
complaint. This matter is before the Court for screening
pursuant to 28 U.S.C. § 1915A and McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007). For the following reasons, the complaint
will be dismissed.
SUMMARY OF CLAIMS
is a pretrial detainee at the Grayson County Detention
Center. He names as Defendants in their official and
individual capacities Grayson County Jailer Jason Woosley and
Grayson County Correctional Officer Brad Dermitt. He alleges
that his Sixth and Fourteenth Amendment rights were violated
by Defendants. He states that he had been having video
conferences with his family attorney with whom he discusses
multiple issues and items regularly.
elaborates as follows:
I was in the progress of having a private video visit that
was cut off due to inappropriate material they viewed
(football scores) as something illegal? This was a screen
saver as I was put on hold while my attorney used the
bathroom. Regaurdless, my visits should be private and
un-monitored thus this would have never occurred had the
visit not been seen, monitored or viewed! This has apparently
been going on for quite a long period of time because I was
informed that it was being viewed with more scrutiny due to
previous violations that could not be substantiated without
my visits being viewed or monitored.
states that he exhausted his administrative remedies and that
during that process he was told that “‘only'
my conversation is private.” He also alleges that his
attorney tried to reschedule a visit, which was denied.
relief, Plaintiff askes for monetary and punitive damages, as
well as injunctive relief in the form of reinstating the
prisoner initiates a civil action seeking redress from a
governmental entity, officer, or employee, the trial court
must review the complaint and dismiss the action, if the
Court determines that it is frivolous or malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. See 28 U.S.C. § 1915A(b)(1) and (2). A
claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989). The Court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Id. at 327. When determining
whether a plaintiff has stated a claim upon which relief can
be granted, the Court must construe the complaint in a light
most favorable to Plaintiff and accept all of the factual
allegations as true. Prater v. City of Burnside,
Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a
reviewing court must liberally construe pro se
pleadings, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam), to avoid dismissal, a complaint must
include “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
prevail on a § 1983 claim for a violation of the Sixth
Amendment's right to counsel, made applicable to the
states by the Fourteenth Amendment, Plaintiff must establish
an intrusion into an attorney-client communication and some
prejudice to him. Weatherford v. Bursey, 429 U.S.
545, 558 (1977).
does not allege that anyone actually overheard any
communication he had with his attorney but rather only that
the screen saver that appeared while Plaintiff's attorney
took a bathroom break was seen by prison employees. As
Plaintiff explains in his complaint, the screen saver
observed by prison employees contained football scores, which
clearly would not be considered confidential attorney-client
communication. Thus, Plaintiff alleges neither that his
private conversation was monitored nor that he suffered any
prejudice to his criminal case. See, e.g.,
Helmer v. Guest, No. 09-CV-11697, 2010 WL 5691506,
at *7 (E.D. Mich. Dec. 22, 2010), report and
recommendation adopted, No. CIV. 09-11697, 2011 WL
691367 (E.D. Mich. Feb. 3, 2011) (“To establish a Sixth
Amendment violation in the context of § 1983 based on
Defendant['s] alleged monitoring of Plaintiff's
conversation with his attorney, Plaintiff must show that the
government intrusion in the attorney-client relationship
prejudiced the Plaintiff in his criminal case by depriving
him of his right to counsel or his right to the effective
assistance of counsel.”).
Plaintiff's claim that the request by his attorney to
have another video conversation was denied is insufficient to
state a claim because Plaintiff does not allege that he did
not have alternate means of communication with counsel, such
as letters, phone calls, or personal visits. See Aswegan
v. Henry, 981 F.2d 313, 314 (8th Cir. 1992)
(“Although prisoners have a constitutional right of
meaningful access to the courts, prisoners do not have a
right to any particular means of access, including unlimited
telephone use.”); White v. Blue, No.
4:15-CV-P100-JHM, 2015 WL 9244491, at *2 (W.D. Ky. Dec. 17,
2015) (finding that, where plaintiff did not allege that he
did not have other means of communicating with his attorney,
plaintiff had not alleged any constitutional violation with
regard to access to the phone or his attorney).
Plaintiffs claims will be dismissed by separate Order for
failure to state a ...