Prison Phone Justice

Case 1:14-cv-00366-LY Document 52 Filed 02/04/15 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
AUSTIN LAWYERS GUILD, CARL
GOSSETT, DAVID GRASSBAUGH,
MARK SAMPSON, FRANCIS
WILLIAMS, AND THE PRISON
JUSTICE LEAGUE,
PLAINTIFFS,
V.
SECURUS TECHNOLOGIES, INC.,
TRAVIS COUNTY SHERIFF’S OFFICE,
SHERIFF GREG HAMILTON (IN HIS
OFFICIAL CAPACITY), TRAVIS
COUNTY DISTRICT ATTORNEY’S
OFFICE, DISTRICT ATTORNEY
ROSEMARY LEHMBERG (IN HER
OFFICIAL CAPACITY), TRAVIS
COUNTY ATTORNEY’S OFFICE, AND
COUNTY ATTORNEY DAVID
ESCAMILLA (IN HIS OFFICIAL
CAPACITY),
DEFENDANTS.

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CAUSE NO. 1:14-CV-366-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendants Hamilton, Lehmberg and Escamilla’s Motion to Dismiss

Pursuant to Rule 12(b)(1), Rule 12(b)(6), filed August 6, 2014 (Clerk’s Dkt. No. 27); Defendants
Travis County Sheriff’s Office, Travis County District Attorney’s Office, and Travis County
Attorney’s Office’s Motion to Dismiss Pursuant to Rule 12(b)(1), 12(b)(6), filed August 6, 2014
(Clerk’s Dkt. No. 28); Defendant Securus Technologies, Inc.’s Renewed Motion to Dismiss Pursuant
to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), filed August 6, 2014 (Clerk’s Dkt. No. 29); Plaintiffs’

Case 1:14-cv-00366-LY Document 52 Filed 02/04/15 Page 2 of 36

Response to Defendants’ Renewed Motions to Dismiss, filed September 5, 2014 (Clerk’s Dkt. No.
34); Reply Brief in Support of Defendant Securus Technologies, Inc.’s Renewed Motion to Dismiss
Pursuant to Fed. R. Civ. P 12(b)(1) and 12(b)(6), filed September 26, 2014 (Clerk’s Dkt. No. 36);
and Travis County Defendants’ Reply to Plaintiffs’ Response to Defendants’ Renewed Motions to
Dismiss, filed September 26, 2014 (Clerk’s Dkt. No. 38).
The motions were referred by United States District Judge Lee Yeakel to the undersigned for
a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the
Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas. After reviewing the parties’ pleadings,
relevant case law, as well as the entire case file, the undersigned issues the following Report and
Recommendation to the District Court.
I. BACKGROUND
Plaintiffs the Austin Lawyers Guild (“ALG”); Carl Gossett, David Grassbaugh, Mark
Sampson, Francis Williams (collectively, “Individual Plaintiffs”); and the Prison Justice League
(“PJL”) (collectively, “Plaintiffs”) filed this action on April 29, 2014, naming as defendants
(collectively, “Defendants”) Securus Technologies, Inc. (“Securus”); as well as Greg Hamilton
(“Hamilton”) in his official capacity as Travis County Sheriff, Rosemary Lehmberg (“Lehmberg”)
in her official capacity as Travis County District Attorney, and David Escamilla (“Escamilla”) in his
official capacity as Travis County Attorney (collectively, “Officials”); and the Travis County
Sheriff’s Office, the Travis County District Attorney’s Office, and the Travis County Attorney’s
Office (collectively, “Travis County Offices”), (Officials and Travis County Offices collectively,
“Travis County Defendants”).
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The ALG is a membership-based, incorporated non-profit organization, which includes as
members a number of Austin, Texas criminal defense attorneys. (First Am. Compl. ¶ 4). The PJL
is also a membership-based, incorporated non-profit organization, which includes as members people
detained in the Travis County Correctional Complex (“TCCC”) in Del Valle, Texas. (Id. ¶ 5). The
Individual Plaintiffs are defense attorneys who routinely represent detainees housed in the Travis
County Jail (“TCJ”) in downtown Austin and the TCCC. (Id. ¶ 3).
Plaintiffs filed an amended class action complaint on July 23, 2014. By way of the first
amended complaint, Plaintiffs allege Securus is working in concert with the other Defendants to
violate Plaintiffs’ and TCJ and TCCC detainees’ rights. Securus allegedly entered into a contractual
agreement with Travis County, which requires Securus to record, store, and grant the other
Defendants access to detainees’ telephone calls. (Id. ¶ 14). According to Plaintiffs, Defendants lead
attorneys and detainees to believe calls to each other are confidential and not recorded. (Id. ¶¶ 10,
15). Securus and the Travis County Sheriff’s Office, which operates TCJ and TCCC, purportedly
also advertise to the public that confidential telephone calls are not recorded. (Id. ¶¶ 6, 15).
However, Plaintiffs allege Securus intentionally and unlawfully intercepts and records confidential
attorney–client telephone calls and stores the recordings in a database for six months. (Id. ¶ 14)
Plaintiffs further contend Securus provides 24-hour online access to the confidential
recordings to Travis County staff, including the Travis County Sheriff’s Office and the Travis
District and County Attorneys’ Offices. (Id. ¶¶ 12, 13, 16, 19). In support of this contention,
Plaintiffs allege prosecutors have disclosed copies of the confidential recordings to defense attorneys
among other discovery materials, and other prosecutors have used the knowledge gained from the
recordings to their tactical advantage without disclosing that they obtained or listened to the
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confidential recordings. (Id. ¶ 17). Plaintiffs finally allege that, although Defendants have been
notified on multiple occasions of the allegedly unlawful conduct, they refuse to take any action to
remedy the issue. (Id. ¶¶ 18–23).
Accordingly, Plaintiffs assert causes of action against Defendants for violations of the Federal
Wiretap Act and Texas Wiretap Act (jointly, “Wiretap Acts”); unreasonable search and seizure in
violation of the Fourth Amendment to the United States Constitution; denial of effective assistance
of counsel in violation of the Sixth Amendment to the United States Constitution; and denial of
access to the courts in violation of First, Fourth, and Fifth Amendments to the United States
Constitution. Plaintiffs seek declaratory and injunctive relief regarding the purported violations.
Defendants now move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
II. STANDARDS OF REVIEW
A.

Rule 12(b)(1)
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute,

they lack the power to adjudicate claims.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig.,
668 F.3d 281, 286 (5th Cir. 2012) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994)). A claim is properly dismissed for lack of subject-matter jurisdiction under Rule
12(b)(1) “when the court lacks the statutory or constitutional power to adjudicate the claim.” Id.
(citation and internal quotation marks omitted).
“Lack of subject-matter jurisdiction may be found in the complaint alone, the complaint
supplemented by the undisputed facts as evidenced in the record, or the complaint supplemented by
the undisputed facts plus the court’s resolution of the disputed facts.” Id. at 287 (citing Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001)). A motion brought under Rule 12(b)(1) should
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be granted only “if it appears certain that the plaintiff cannot prove any set of facts in support of his
claims entitling him to relief.” Id. (citing Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 663 (5th
Cir. 2007)).
B.

Rule 12(b)(6)
Rule 8 of the Federal Rules of Civil Procedure mandates only that a pleading contain a “short

and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P.
8(a)(2). This standard demands more than “a formulaic recitation of the elements of a cause of
action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550
U.S. 544, 555–57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on its face.” Id. at 570.
The Supreme Court has made clear that this plausibility standard is not a “probability
requirement,” but does impose a standard higher than “a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although “a court must
accept as true all of the allegations contained in a complaint,” that tenet is “inapplicable to legal
conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. When evaluating a motion to dismiss for failure to state
a claim under Rule 12(b)(6), the court assumes the veracity of the well-pleaded factual allegations
and construes the facts alleged “in the light most favorable to the nonmoving party.” Doe v.
Robertson, 751 F.3d 383, 386–87 (5th Cir. 2014) (citations and internal quotation marks omitted).
“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679. Thus, in considering a motion to dismiss, the court must initially identify
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pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume
the veracity of well-pleaded factual allegations and determine whether those allegations “plausibly
give rise to an entitlement to relief.” Id. If not, “the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting FED. R. CIV. P. 8(a)(2)).
III. ANALYSIS
By way of their motions, Defendants argue: (1) Plaintiffs lack standing to bring their claims;
(2) the Travis County Offices and Officials are immune from suit; (3) Plaintiffs fail to state claims
for violations of the Wiretap Acts; (4) Plaintiffs fail to state claims for violations of the United States
Constitution; and (5) Securus is not acting under color of state law.1 Because standing is a
jurisdictional matter, the undersigned will address that issue first.
A.

Standing
Defendants contend none of the Plaintiffs named in the complaint have suffered injury as a

result of the alleged conduct forming the basis of the complaint. Specifically, Defendants argue
Plaintiffs have not suffered a violation of their constitutional rights as a result of any purported
breach of attorney–client communications because attorney–client privilege is held by the client, not
the attorney. Defendants further argue Plaintiffs do not have associational standing or third-party
standing to bring claims on behalf of TCJ and TCCC detainees.
Article III of the Constitution limits the jurisdiction of federal courts to cases and
controversies. Susan B. Anthony List v. Driehaus, __U.S.__, 134 S. Ct. 2334, 2341 (2014); U.S.
Parole Comm’n v. Geraghty, 445 U.S. 388, 395 (1980). “One element of the case-or-controversy
requirement is that [plaintiffs], based on their complaint, must establish that they have standing to
1

The undersigned will not address arguments regarding class certification at this preliminary stage.

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sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). This requirement, like other jurisdictional
requirements, is not subject to waiver and demands strict compliance. Id. at 819; Lewis v. Casey,
518 U.S. 343, 349 n.1 (1996). To meet the standing requirement a plaintiff must show: (1) she has
suffered an injury-in-fact that is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision. Susan B. Anthony List, 134 S. Ct. at 2341; Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000); Consol. Cos., Inc. v. Union Pacific R.R. Co., 499
F.3d 382, 385 (5th Cir. 2007); Fla. Dep’t of Ins. v. Chase Bank of Tex. Nat’l Ass’n, 274 F.3d 924,
929 (5th Cir. 2001) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). To
survive, injury that has not yet occurred must be “certainly impending” or must pose a “substantial
risk” that the harm will occur. Clapper v. Amnesty Int’l USA, 568 U.S.__, __ n.5 133 S. Ct. 1138,
1146 n.5 (2013). The party invoking federal jurisdiction bears the burden of establishing these
elements.” Lujan, 504 U.S. at 561.
The United States Supreme Court has “adhered to the rule that a party ‘generally must assert
his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests
of third parties.’” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U.S.
490, 499 (1975)). However, courts allow exceptions to the general standing rules in limited
situations, such as where an association has associational standing, or a litigant is eligible for
third-party standing. Powers v. Ohio, 499 U.S. 400, 411 (1991) (third-party standing); Nat’l Rifle
Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 191 (5th
Cir. 2012) (associational standing).
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1.

Associational Standing

An association has associational standing to sue on behalf of its members if: (1) its members
would otherwise have standing individually; (2) the interests the association seeks to protect are
germane to the association’s purpose; and (3) the claim asserted and relief sought do not require the
individual members’ participation in the lawsuit. Nat’l Rifle Ass’n of Am., Inc., 700 F.3d at 191.
See Ass’n of Am. Physicians and Surgeons v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010) (“The
first two elements [of the associational standing analysis] address constitutional requirements; the
third is solely prudential.”). However, it is unnecessary to demonstrate every member of an
association has suffered an injury-in-fact; if any member has suffered an injury-in-fact it may be
imputed to the association. Warth, 422 U.S. at 511.
a.

The ALG

The ALG asserts it has associational standing to sue on behalf of its members. According
to the complaint, many individual members of the ALG are Austin criminal defense attorneys who
regularly represent criminal defendants detained in the TCCC or TCJ.
i.

Individual Members’ Standing

The ALG argues its members have suffered injury-in-fact because Defendants’ alleged
conduct interferes with the business relationship between attorneys and their clients. Specifically,
“attorneys’ incomes are reduced” by being unable to consult with their detained clients via telephone.
(First Am. Compl. ¶ 31). Instead, to avoid prejudicing their clients’ cases, attorneys are forced to
travel to the jail and engage in the rigorous and time-consuming security and visitation processes.
The ALG further alleges the injury is directly caused by Defendants’ conduct of recording
confidential telephone calls. Finally, the ALG alleges an injunction enjoining Defendants from
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recording or sharing confidential attorney–client telephone calls will redress its members’ injuries
because they will be able to engage in telephone calls with their clients.
The undersigned agrees that being forced to conduct in-person visits, rather than quick and
inexpensive telephone calls demonstrates concrete injury. See, e.g., Ctr. Hill Def. Fund v. U.S. Army
Corps of Eng., Nashville Dist., 886 F. Supp. 1389, 1397 n.5 (M.D. Tenn 1995) (being forced to drive
longer distance to launch boat is concrete injury for standing purposes). As the ALG points out,
what previously could be accomplished in a ten-minute phone call necessitates a potentially
hours-long journey. See Ass’n of Cmty. Org. for Reform Now v. Fowler, 178 F.3d 350, 358 (5th Cir.
1999) (citing Lujan, 504 U.S. at 560–61) (injury must be concrete and particularized, but “need not
measure more than an ‘identifiable trifle”); Conserv. Council of N. Carolina v. Costanzo, 505 F.2d
498, 501 (4th Cir. 1974) (same). Even if injury has not already occurred, it appears imminent from
the face of the complaint because Defendants continue to indirectly prevent telephone
communications between attorneys and their detained clients. See Clapper 133 S. Ct. at 1146 n.5
(quoting Lujan, 504 U.S. at 560–61) (imminence is a somewhat elastic concept, but the injury must
be “certainly impending”).
Further, the injury alleged is traceable to Defendants’ purportedly unlawful conduct—that
is, attorneys must travel to visit their clients to avoid the disclosure of potentially prejudicial
information to Defendants. See Prison Legal News v. Livingston, 683 F.3d 201, 213–12 (5th Cir.
2012) (publisher suffered injury by “denial of opportunity to communicate [via distribution of its
books] with certain inmates—that resulted directly from the government action it challenges as
illegal”). Therefore, an injunction enjoining Defendants from recording confidential telephone calls
will redress the injury alleged. The undersigned accordingly finds the ALG’s members have
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individual standing.
ii. Germaneness and Participation
The next inquiry in determining whether the ALG has associational standing is whether the
interests the ALG seeks to protect in this lawsuit are germane to the ALG’s purpose. The ALG’s
stated purpose, set out in its bylaws, is to “promote the public interest, civil rights, and social
justice.” (First Am. Compl. ¶ 4). Broadly construed, the purpose of this lawsuit is to protect the
legal and constitutional rights of detainees and attorneys. Therefore, ALG’s interests in this suit are
germane to its civil rights and social justice purposes. See Ass’n of Am. Physicians, 627 F.3d at 551
n.2 (“The germaneness requirement is ‘undemanding’ and requires ‘mere pertinence’ between the
litigation at issue and the organization’s purpose.”). See also Lopez Torres v. New York State Bd.
of Elections, 462 F.3d 161 (2d Cir. 2006), rev’d on other grounds, 552 U.S. 196 (2008) (lawsuit
regarding state judicial nomination process was germane to voter organization’s organizational
purpose of making government more open and responsive to citizens).
The last inquiry is whether the ALG can proceed with the lawsuit without individual
members’ participation. The Fifth Circuit has made clear this element rests on whether the claims
in a particular case required minimal factual development, such as allegations of administrative
illegality, or were of a more fact-sensitive nature. See Ass’n of Am. Physicians, 627 F.3d at 552–53
(concluding individual participation not necessary in suit for declaratory and injunctive relief for
alleged constitutional violations including medical board’s use of anonymous complaints and
retaliatory actions against physicians).

“[A]s long as resolution of the claims benefits the

association’s members and the claims can be proven by evidence from representative injured
members, without a fact-intensive-individual inquiry, the participation of those individual members
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will not thwart associational standing.” Id.
Here, the claims are similar and relatively uniform among the members of the ALG:
recording, sharing, and listening to confidential attorney–client telephone calls between attorneys
and their detained clients is unlawful and should cease. See Defenders of Wildlife, 420 F.3d at 958,
rev’d on other grounds, 551 U.S. 644 (2007) (participation of members not required because “the
relief sought will run equally to all of them”); Familias Unidas v. Briscoe, 619 F.2d 391, 398 n.2
(5th Cir. 1980) (“[T]he declaratory relief sought, inuring as it would to the benefit of all members,
is ideally suited to allowing ‘associational standing.’”). Accordingly, individual inquiries are
unnecessary and the case only requires minimal factual development.

The ALG thus has

associational standing to pursue claims on behalf of its members and the motions to dismiss should
be denied on this ground.
b.

The PJL

The PJL also contends it has associational standing to sue on behalf of its members.
Plaintiffs allege that members of the PJL include people detained in the TCCC.
i. Individual Members’ Standing
The PJL alleges its detained members could easily and unknowingly divulge compromising
confidential information while attempting to seek legal advice. The PJL further alleges detainees
face a substantial risk of having their confidential calls used by prosecutors to prejudice detainees’
cases.
PJL’s members detained in the TCCC have a personal stake in the outcome of this litigation
because they are allegedly unable to contact their attorneys without the possibility of prejudicing
their cases. See Warth, 422 U.S. at 511 (association shows injury-in-fact when any one of its
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members suffer immediate or threatened injury); In re Global Indus. Tech., Inc., 645 F.3d 201, 210
(3d Cir. 2011) (citing United States v. Students Challenging Regulatory Agency Procedures, 412
U.S. 669, 686–90, 690 n.14 (1973)) (the injury-in-fact requirement is very generous, and is met when
the party alleges personal stake in the outcome). But see Valley Forge Christian Coll. v. Am. United
for Separation of Church and State, Inc., 454 U.S. 464, 482 (1982) (quoting Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 223 n.13 (1974)) (“Art. III requirements of
standing are not satisfied by ‘the abstract injury in nonobservance of the Constitution asserted by .
. . citizens.’”). The undersigned finds Plaintiffs’ allegation that prosecutors have already disclosed
copies of confidential records to defense attorneys during discovery sufficient to allege injury.
Although the PJL’s contentions regarding injury are somewhat conclusory, they are satisfactory at
this preliminary stage. See Lujan, 504 U.S. at 561 (quoting Nat. Wildlife Fed., 497 U.S. at 889) (at
the motion to dismiss stage, courts presume that the complaint’s general factual allegations regarding
injury are supported by “specific facts that are necessary to support the claim”); Buchanan v. Fed.
Election Com’n, 112 F. Supp. 2d 58 (D.D.C. 2000) (fact that plaintiff might not be successful in
claim does not affect standing if injury is alleged).
In addition, for reasons similar to those discussed regarding the ALG’s standing, the
undersigned finds the injury is traceable to Defendants’ alleged conduct and that the injunctive and
declaratory relief sought will properly redress the injuries alleged. Accordingly, the PJL’s individual
members who are incarcerated in the TCCC have individual standing.
ii.

Germaneness and Participation

PJL’s alleged mission is to “improve conditions of incarceration through ‘litigation,
advocacy, and empowering [its] members.’” (First Am. Compl. ¶ 5). The undersigned finds the
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litigation’s goal of protecting detainees’ privacy during attorney–client communications is germane
to PJL’s mission. See PA Prison Soc’y. v. Cortes, 622 F.3d 215, 277–30 (3d Cir. 2010) (challenging
revision of pardon system regarding life or death in prison was germane to organizational purpose
of advocating for humane, just, restorative correctional system). Again, as discussed above, the
instant litigation will not require participation of the individual members of the PJL. See Heartland
Acad. Cmty. Church v. Waddle, 427 F.3d 525, 532–33 (8th Cir. 2005) (boarding school could assert
claim on behalf of students because suit for injunctive and declaratory relief did not require students’
participation); Church of Scientology of Cal. v. Cazares, 638 F.2d 1272 (5th Cir. 1981) (civil rights
claim did not require individual participation where claim and relief requested affected membership
as a whole). Accepting the PJL’s allegations as true, its members face concrete prejudice to their
cases if confidential information is utilized by prosecutors, which is likely to be redressed by
declaratory and injunctive relief. The PJL therefore has standing to sue on behalf of its members,
including those members detained in the TCCC. Accordingly, the motions to dismiss should be
denied on this ground.
2.

Individual Standing

The Individual Plaintiffs assert they have standing to sue on their own behalf. Where one
plaintiff has standing, the Court is not required to consider the standing of similarly situated
plaintiffs. Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981); Planned Parenthood of
Greater Tex. Surgical Health Servs. v. Abbot, 748 F.3d 583, 589 (5th Cir. 2014). Like the ALG
members, the Individual Plaintiffs are Austin criminal defense attorneys who represent clients
detained in the TCJ or TCCC. The Individual Plaintiffs are therefore similarly situated to the
members of the ALG. Because the ALG members have standing in their own right, the undersigned
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finds the Individual Plaintiffs also have standing. See Fla. ex rel. Atty Gen. v. U.S. Dep’t Health and
Human Servs., 648 F.3d 1235, 1243 (11th Cir. 2011), aff’d in part and rev’d in part on other
grounds, Nat’l Fed’n of Indep. Bus. v. Sebelius, __U.S.__, 132 S. Ct. 2566 (2012), (citing Watt, 454
U.S. at 160; and Vill. of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 264 n.9 (1977))
(“The law is abundantly clear that so long as at least one plaintiff has standing to raise each claim
. . . we need not address whether the remaining plaintiffs have standing.”). The Individual Plaintiffs
thus have standing and the motion to dismiss on this basis should be denied.
3.

Third-Party Standing

The ALG and the Individual Plaintiffs additionally argue they have third-party standing to
assert claims on behalf of their detained clients. A litigant has third-party standing to sue on behalf
of another individual if: (1) the litigant has suffered an injury-in-fact giving the litigant a sufficiently
concrete interest in the outcome of the issue; (2) the litigant has a close relationship with the third
party on whose behalf the right is asserted; and (3) there is a genuine obstacle to the third party’s
ability to protect his own interests. Powers, 499 U.S. at 411. The Supreme Court “[has] not looked
favorably upon third-party standing.” Kowalski, 543 U.S. at 130 (denying third-party standing to
attorney seeking to litigate right of client); Conn v. Gabbert, 526 U.S. 286, 292–93 (1999) (same);
McCormack v. Nat’l Collegiate Athletic Ass’n, 845 F.2d 1338, 1341 (5th Cir.1988) (alumni, football
players, and cheerleaders lacked third-party standing to assert claims of university).
As noted above, the ALG and Individual Plaintiffs properly alleged they have suffered injuryin-fact. The ALG and Individual Plaintiffs also allege there is a close relationship between attorneys
and clients, and the Supreme Court has agreed in certain circumstances. See Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 623 n.3 (1989) (attorney–client relationship satisfies third14

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party standing closeness requirement); cf. Kowalski, 543 U.S. at 129 (attorney–client relationship
does not satisfy closeness requirement where clients are prospective, unascertained criminal
defendants).
However, most challenging for the undersigned is the contention that the detainees face
obstacles to asserting their own rights because there is a short window of time between arrest and
the opportunity to consult with an attorney. In support of this contention, the ALG points out that
many harms potentially suffered by detainees due to the denial of the right to freely consult with
counsel cannot be remedied on appeal. For example, a person who was recently arrested and
attempting to seek attorney advice on being released on a personal recognizance bond could easily
share compromising information. Another example offered is an arrestee’s immigration status.
“[I]nitial pleas—even for low-level charges—could have significant legal ramifications” for legal
permanent residents and visa-holders’ immigration statuses.

Similarly, Plaintiffs argue,

undocumented immigrants eligible for relief from deportation could suffer irreparable legal harm
without an attorney’s advice.
Plaintiffs’ contention that detainees cannot assert rights on their own behalf is unconvincing.
See Barrows v. Jackson, 346 U.S. 249, 257 (1953) (hindrance must be “difficult if not impossible
for the persons whose rights are asserted to present their grievance before any court”). Detainees’
rights are routinely asserted and remedied on appeal, even after legal damage has been done at the
trial level. See Kowalski, 543 U.S. at 131–32 (denying counsel to indigent criminal defendants is
not “hindrance” to defendants’ ability to bring suit or remedy violations on appeal); Miller v.
Albright, 523 U.S. 420, 448 (1998) (noting petitioner had not shown “substantial hindrance” or
“genuine obstacle” to third party’s ability to assert own claim). The alleged hindrances are too
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speculative to rise to the level of a “genuine obstacle.” Suciu v. Washington, 2012 WL 4839924, at
*4 (E.D. Mich. Oct. 11, 2012) (attorneys could not bring claims on behalf of prisoner clients because
clients were not hindered as clients could pursue relief through the courts and claim arising from
violation was not factually or legally complex); Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 31–32 (D.C.
Cir 2010) (third party in Yemen on a “kill list” who would possibly be detained in the United States
if he brought suit here was not hindered from bringing suit on his own behalf within the meaning of
the Powers hindrance requirement). Moreover, the fact that the PJL, a party to this suit, includes
individuals detained in the TCCC demonstrates that detainees are not hindered from bringing suit.
See e.g., Pharmacy Buying Ass’n, Inc. v. Sebelius, 906 F. Supp. 2d 604, 616–17 (W.D. Tex. 2012)
(“A claim of hindrance is rebutted in this case, as in others, by the participation of [the third-party
a plaintiff seeks to represent].”). Accordingly, the ALG and Individual Plaintiffs have not shown
they have third-party standing to assert rights on behalf of their detainee clients. See Singleton v.
Wulff, 428 U.S. 106, 116 (1976) (“Even where the relationship is close, the reasons for requiring
persons to assert their own rights will generally still apply . . . . [unless] there is some genuine
obstacle to such assertion.”).
In sum, ALG and PJL have associational standing to bring suit on behalf of their members.
The Individual Plaintiffs have standing to bring claims on behalf of themselves. However, no
plaintiff has third-party standing to bring claims on behalf of non-member detainee clients. As each
plaintiff has standing to assert at least one cause of action, the motions to dismiss should not be
granted for lack of standing.
B.

Travis County Immunity
The Travis County Offices and Officials argue they are not capable of being sued or are
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immune from suit. The Officials further maintain Plaintiffs have failed to state an official capacity
claim against them.
1.

Travis County Offices

The Travis County Sheriff’s Office, Travis County District Attorney’s Office, and Travis
County Attorney’s Office correctly assert, and Plaintiffs do not contest, the Travis County Offices
are not legal entities capable of being sued. See Murray v. Earle, 334 F. App’x 602, 606 n.2 (5th
Cir. 2009) (Travis County District Attorney’s Office is not a separate entity; the district attorney is
the properly named party when alleging a constitutional violation by a district attorney’s office);
Darby v. Pasadena Police Dep’t, 939 F.2d 311 (5th Cir. 1991) (police and sheriff’s departments are
governmental subdivisions without capacity for independent legal action); Parker v. Whoolery, 2009
WL 3247583, at *2 (W.D. Tex. Oct. 2, 2009) (Travis County Sheriff’s Department is not legal entity
capable of being sued); Jacobs v. Port Neches Police Dep’t, 915 F. Supp. 842, 844 (E.D. Tex. 1996)
(county sheriff’s office and county district attorney’s office are not legal entities capable of being
sued). The undersigned generally construes claims such as Plaintiffs’ as if they were brought against
Travis County. However, Plaintiffs have named Hamilton, Lehmberg, and Escamilla in their official
capacities. Hamilton is the duly elected Travis County Sheriff, Lehmberg is the duly elected Travis
County District Attorney, and Escamilla is the duly elected Travis County Attorney. Plaintiffs’
claims against Hamilton, Lehmberg, and Escamilla in their official capacities are the same as if they
were brought against Travis County. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
(suit against state official in official capacity is against official’s office, which is no different that suit
against state itself); Overlin v. Boyd, 598 F.2d 423, 424–25 (5th Cir. 1979) (construing official
capacity claims against county commissioners as against the county); see also Washington v. Med.
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Staff T.C.S.O., 2006 WL 2052848, at *2 (W.D. Tex. Jul. 21, 2006) (construing official capacity
claim against Travis County medical director as against Travis County). Accordingly, the Travis
County Sheriff’s Office, Travis County District Attorney’s Office, and Travis County Attorney’s
Office should be dismissed from this suit.
2.

Travis County Officials

Lehmberg and Escamilla assert they are entitled to absolute prosecutorial immunity from the
instant suit. Lehmberg, Escamilla, and Hamilton further argue Plaintiffs have failed to state an
official capacity claim against the Officials.
a.

Absolute Prosecutorial Immunity

Prosecutors are generally entitled to absolute immunity in civil rights damages lawsuits for
actions taken pursuant to their prosecutorial role. Kalina v. Fletcher, 522 U.S. 118 (1997); Imbler
v. Pachtman, 424 U.S. 409 (1976); Esteves v. Brock, 106 F.3d 674 (5th Cir. 1997); Boyd v. Biggers,
31 F.3d 279, 284 (5th Cir. 1994). However, as noted previously, Plaintiffs filed suit against
Lehmberg and Escamilla in their official capacities. Therefore, absolute immunity is inapplicable
here because the suit is construed as being brought against Travis County. See Burge v. Parish of
St. Tammany, 187 F.3d 452, 466–67 (5th Cir. 1999) (citing Monell v. New York City Dep’t Of Soc.
Servs., 436 U.S. 658, 690–91 n.55 (1978)) (district court erred in granting summary judgment for
district attorney in official capacity based on absolute immunity, because “[u]nlike government
officials sued in their individual capacities, municipal entities and local governing bodies do not
enjoy immunity from suit, either absolute or qualified . . . .”). See also Hill v. City of Seven Points,
31 F. App’x 835, 845 (5th Cir. 2002) (citing Burge, 187 F.3d at 466–67) (prosecutor entitled to
absolute immunity in her individual capacity for conduct occurring within the scope of duties as
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prosecutor but not immune in her official capacity).
Moreover, absolute prosecutorial immunity is inapplicable to suits for prospective, i.e.,
injunctive and declaratory, relief. Johnson v. Kegansi, 870 F.2d 992, 998–99 (5th Cir. 1989) (citing
Pulliam v. Allen, 466 U.S. 522, 541 (1984). Lehmberg and Escamilla therefore should not be
dismissed from the suit.
b.

Official Capacity

In order to state an official capacity claim against a municipality under 42 U.S.C. § 1983, a
plaintiff must allege a constitutional violation resulting from a municipal custom or policy. Monell,
436 U.S. at 690–94 (1978); Collins v. City of Harker Heights, Tex., 916 F.2d 284, 286 (5th Cir.
1990), aff’d, 503 U.S. 115 (1992). Counties are not liable for constitutional violations committed
by county employees unless the violations were the result of a county policy or custom that caused
the injury. Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007); Conner v. Travis County, 209 F.3d
794, 796 (5th Cir. 2000). To establish an official policy, plaintiff must allege either an officially
adopted policy, or a:
[P]ersistent, widespread practice of city officials or employees, which, although not
authorized by officially adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents municipal policy. Actual or
constructive knowledge of such custom must be attributable to the governing body
of the municipality or to an official to whom that body had delegated policy-making
authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc). See Bishop v. Arcuri, 674
F.3d 456, 467 (5th Cir 2012) (applying Bennett’s policy test).
Plaintiffs allege Travis County’s policymakers have adopted a widespread practice and policy
of recording confidential attorney–client telephone calls, that the Travis County Defendants have

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access to the confidential recordings, and that the Travis County Defendants have been engaged in
this conduct for years. Accepting these allegations as true, the undersigned finds Plaintiffs have
properly alleged that the Travis County Defendants have engaged in a persistent, widespread practice
that is purportedly unconstitutional. See Bishop, 674 F.3d at 469 (unwritten police policy of
conducting no-knock entries promulgated by chief of police was sufficient to establish widespread
police department policy).
Further, Plaintiffs specifically allege that the Travis County Defendants had actual, and, at
a minimum, constructive knowledge of the custom. In support of this allegation, Plaintiffs maintain
that members of the Austin criminal defense bar contacted Travis County’s policymakers personally
and in writing on three separate occasions, including the Sheriff, County Attorney, District Attorney,
Travis County and District Judges, and the Travis County Commissioners Court. See Bennett, 728
F.2d at 768 (actual knowledge may be shown by discussion at council meetings, written notification;
constructive knowledge may be shown if governing body would have known of violations if properly
exercised responsibilities). Accordingly, Plaintiffs properly state an official capacity claim against
the Officials and the complaint should not be dismissed on this ground.
C.

Wiretap Acts
The Federal Wiretap Act and Texas Wiretap Act generally prohibit intentional interception,

use, or disclosure of telephone communications without at least one communicating party’s consent.
18 U.S.C. § 2511; TEX. CIV. PRAC. & REM. CODE § 123.002. See Stephens v. Dolcefino, 126 S.W.3d
120, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (clarifying that Texas Wiretap Act is
not violated if at least one party to the communication consents to interception). Defendants contend
they are not liable under the Wiretap Acts because various statutory exceptions apply.
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Defendants argue the ordinary course of business exception and law enforcement exception
to the Federal Wiretap Act and the common carrier defense to the Texas Wiretap Act apply here.2
The ordinary course of business exception exempts a wire or electronic communication service
provider’s use of a “telephone or telegraph instrument, equipment or facility, or any component
thereof” in the ordinary course of business. 18 U.S.C. § 2510(5)(a)(ii). Similarly, the law
enforcement exception exempts investigative or law enforcement officers who intercept telephone
conversations in the ordinary course of their duties. 18 U.S.C. § 2510(5)(a)(ii). The common carrier
defense grants “communication common carriers” the right to conduct “an activity that is necessary
to service for the protection of the carrier’s rights or property.” TEX. CIV. PRAC. & REM. CODE
§ 123.003(a). Therefore, the crux of these exceptions is whether the calls at issue are recorded in
the ordinary or necessary course of the Securus’ business and the Travis County Defendants’ duties.
As a preliminary matter, it is undisputed that Securus is a common carrier that intentionally
intercepts detainees’ telephone conversations while they are in custody and that the Travis County
Defendants are given access to the recordings. Recording detainees’ calls is routinely accepted as
a practice within the ordinary course of business and within the ordinary course of law enforcement
officers’ duties. Riviera v. United States, 546 U.S. 1023 (2005); Lanza v. State of New York, 370
U.S. 139, 143 (1962).3 However, the issue here differs because it specifically involves allegations
2

The Officials also argue the Texas Wiretap Act claims are barred by sovereign immunity, citing City of Oak
Ridge North v. Mendes, 339 S.W.3d 222, 232–34 (Tex. App.—Beaumont 2011, no pet.). Specifically, they argue the
claims are construed against Travis County, and the Texas Wiretap Act only applies to “persons.” However, the Texas
Government Code specifically defines “persons” to include a “government or governmental subdivision or agency.”
TEX. GOV’T CODE ANN. § 311.005. See also Garza v. Bexar Metro. Water Dist., 639 F. Supp. 2d 770, 773 (W.D. Tex.
2009) (Texas and Federal Wiretap Acts apply to governmental entities).
3

Plaintiffs also argue that the equipment used by Securus to record the confidential conversations falls outside
of the ordinary course of business exception. However, equipment “furnished to the subscriber or user by a provider of
wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user
in the ordinary course of its business . . .” falls within the exception. Adams v. City of Battle Creek, 250 F.3d 980,

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that confidential attorney–client telephone communications were recorded and intentionally
disclosed to law enforcement officers and prosecutors.4
In the complaint, Plaintiffs allege that Defendants’ policies bar recording of confidential
attorney–client telephone conversations.5 Specifically, Plaintiffs allege the Travis County Sheriff’s
Office and Securus both publicly state on their webpages that attorney–client telephone
conversations are not recorded. Plaintiffs further allege Major Darren Long, the Travis County
Sheriff’s Office’s jail administrator told defense attorneys attorney–client telephone calls are not
recorded or listened to by his staff. (First Am. Compl. ¶ 15). Moreover, Plaintiffs allege that the
recordings are conducted covertly, without notice to any party that is being monitored. See Crooker
v. U.S. Dep’t Of Justice, 497 F. Supp. 500, 502–03 (D. Conn. 1980) (“[T]he Court of Appeals for
the First Circuit held that the mere fact that the plaintiff was in restrictive custody and knew or
should have known that his telephone call would probably be monitored was not sufficient to
establish consent.”). Plaintiffs have thus alleged recording confidential attorney–client telephone
conversations is not within Defendants’ ordinary course of business, necessary to Securus’ service,

983–84 (6th Cir. 2001) (citing 18 U.S.C. § 2510(5)(a)(I)) (pager provided by electronic communications service was
used in ordinary course of business). All recording equipment allegedly used by Securus to purportedly violate
detainees’ rights is also equipment used to record inmate telephone calls that are not confidential. Therefore, because
the equipment is also used in the ordinary course of business, the equipment itself falls within the ordinary course of
business exception.
4

The Officials argue in their motion to dismiss that “courts have consistently held that inadvertent recording
of attorney-inmate calls by correctional officers or officials . . . is insufficient to constitute a violation of constitutional
rights . . . . Accordingly, [the recording] falls within the Federal Wiretap Act’s law enforcement exemption.” (Offiials
Mot. at 18). Notably, the Officials fail to cite a single case specifically holding intentional recordings of confidential
attorney-inmate calls and sharing them with prosecutors fell within the law enforcement exception.
5

On multiple occasions in the motions to dismiss, Defendants assert that Defendants provide an alternate
mechanism whereby detainees and their attorneys may engage in private telephone calls. However, at this stage, the
undersigned will only consider the complaint and accept the allegations therein as true. See Bell Atl.550 U.S. at 555
(complaint’s factual allegations must be accepted as true).

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or within the Travis County Defendants’ law enforcement duties. See, e.g., id. at 503–04 (routine
monitoring of inmate-attorney calls was unwarranted). See also, e.g., Garza v. Bexar Metro. Water
Dist., 639 F. Supp. 2d 770, 772–75 (W.D. Tex. 2009) (defendants’ handbook reserving right to
monitor and access phone and email messages did not give defendants right to maliciously listen to
personal calls within the ordinary course of business); Lonegan v. Hasty, 436 F. Supp. 2d 419, 432
(E.D.N.Y. 2006) (“[I]n the prison setting, attorney–client communications generally are
distinguished from other kinds of communications and exempted from routine monitoring.”).
Accordingly, Defendants have not shown the ordinary course of business exception, law
enforcement exception, and common carrier defense apply at this preliminary stage. The motion to
dismiss the Federal and Texas Wiretap At claims should therefore be denied.
D.

Constitutional Claims
Defendants contend Plaintiffs fail to state a claim under the Fourth Amendment for

unreasonable search and seizure, the Sixth Amendment for ineffective assistance of counsel, and the
First, Fifth, and Fourteenth Amendments for denial of access to the courts. Securus further argues
it is not liable for any alleged constitutional violations because it is a private entity not acting under
color of state law.
1.

Unreasonable Searches and Seizures

The Fourth Amendment protects individuals from unreasonable searches and seizures by the
government. A “search” extends to the recording of oral statements and conversations. Katz v.
United States, 389 U.S. 347, 353 (1967); Berger v. New York, 388 U.S. 41, 51 (1967). The
government cannot monitor or record a call without violating the Fourth Amendment if the parties
have a reasonable expectation of privacy in their conversation. Katz, 389 U.S. at 351–52. See also
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United States v. Jones, 132 S. Ct. 945, 950–51 (2012) (indirectly reaffirming Katz). To establish a
Fourth Amendment privacy claim, a plaintiff must demonstrate he had an actual, subjective
expectation of privacy, and that his expectation of privacy is objectively reasonable. Zaffuto v. City
of Hammond, 308 F.3d 485, 488 (5th Cir. 2002) (citing Katz, 389 U.S. at 351–52).
Pretrial detainees and prisoners do not enjoy the same constitutional protections as
unincarcerated individuals. See Hudson v. Palmer, 468 U.S. 517, 527 (1984) (inmate has no
reasonable expectation of privacy in prison cell); Bell v. Wolfish, 441 U.S. 520, 556 (1979)
(constitutional rights of inmates are “limited by the legitimate goals and policies of penal
institution”). Again, it is generally acceptable to record and listen to inmate telephone calls. Riviera,
546 U.S. 1023; Lanza, 370 U.S. at 143. However, the question here is whether recording, listening
to, and sharing detainees’ confidential attorney–client telephone calls is a violation of the Fourth
Amendment.
Defendants argue Plaintiffs’ Fourth Amendment claim fails because attorneys cannot assert
the attorney–client privilege, as that privilege is properly held and asserted by the client. See In re
Grand Jury Subpoena, 220 F.3d 406, 408 (5th Cir. 2000) (attorney–client privilege is held by client).
While the attorney–client privilege is held by the client, the Fourth Amendment reasonable
expectation of privacy standard is distinguishable from the pure attorney–client privilege. All parties
who have a reasonable expectation of privacy in a conversation are protected by the Fourth
Amendment. See Gennusa v. Shoar, 879 F. Supp. 2d 1337, 1348 (M.D. Fla. 2012), aff’d 748 F.3d
1103 (11th Cir. 2014) (local criminal defense attorney and client had reasonable expectation of
privacy when communicating with pretrial detainee client in interrogation room when officials led
attorney to believe conversations would not be monitored); Lonegan v. Hasty, 436 F. Supp. 2d 419,
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435 (E.D.N.Y. 2006) (“Although the privilege afforded to attorney–client communications generally
belongs to the client, not to the attorney, see United States v. Goldberger & Dubin, P.C., 935 F.2d
501, 504 (2d Cir. 1991), the existence of robust protections for attorney–client communications
makes [attorney-plaintiffs’] expectation of privacy in their conversations with Detainees
reasonable.”).
Both attorneys and clients have an objectively reasonable expectation of privacy in
confidential communications between an attorney and client. See Upjohn Co. v. United States, 449
U.S. 383 (1981) (attorney–client privilege is the “oldest of the privileges for confidential
communications known to the common law”). Fourth Amendment protection thus extends to
attorneys engaged in confidential communications with their clients and the expectation of privacy
in those communications is objectively reasonable. Therefore, it must be determined whether the
attorneys and clients had an actual, subjective expectation of privacy.
Defendants assert Plaintiffs have not alleged a subjective expectation of privacy because
Plaintiffs have not alleged the recordings were made without notice. Defendants attempt to
analogize the case here to United States v. Novak, 531 F.3d 99 (1st Cir. 2008), wherein the First
Circuit held detainees had no reasonable expectation of privacy because they were notified that all
calls were being recorded and attorney–client telephone calls were mistakenly recorded. Id. at 101.
Plaintiffs allege three facts which distinguish this case from Novak and support their contention that
attorneys and detainee clients had an actual, subjective expectation of privacy. First, Plaintiffs allege
the Travis County Sheriff’s Office and Securus tell the public attorney–client telephone calls are not
recorded. Second, Plaintiffs allege Major Long stated that attorney–client telephone calls are not
recorded or listened to by his staff. (First Am. Compl. ¶ 15). Third, Plaintiffs allege “Defendants
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similarly lead detainees to believe” their attorney–client telephone calls are confidential. Moreover,
nowhere in the complaint did Plaintiffs allege detainees or attorneys were notified that their calls
were being recorded. Plaintiffs have therefore properly alleged that attorneys and detainee clients
have a reasonable expectation of privacy in their confidential communications. Accordingly, this
claim should not be dismissed.
2.

Effective Assistance of Counsel

The Sixth Amendment right to effective assistance of counsel is implicated when there are
concerns regarding interference with the attorney–client privilege. Taylor, 532 F.2d at 472.
However, this Sixth Amendment right is solely applicable to “pre-trial detainees or to a convicted
prisoner being tried on additional charges or contesting the legality of a previous conviction.” Id.
Generally, a cause of action for a Sixth Amendment violation for ineffective assistance of counsel
requires a showing of actual prejudice to the defendant, e.g., a conviction or longer sentence that
would not have occurred but for the attorney’s deficient performance. Weatherford v. Bursey, 429
U.S. 545, 558 (1977); United States v. Davis, 226 F.3d 346, 353 (5th Cir. 2000).
Defendants argue Plaintiffs fail to state a claim for denial of effective assistance of counsel
because they lack standing and have alleged no facts showing a denial of effective assistance of
counsel or resulting prejudice.
The undersigned first notes that the Sixth Amendment right to effective assistance of counsel
is one held by individual criminal defendant clients, not attorneys. Strickland v. Washington, 466
U.S. 668, 680, 686 (1984) (constitution affords criminal defendants effective assistance of counsel).
The ALG’s members and Individual Plaintiffs are attorneys rather than clients, they do not have
standing to assert an ineffective assistance of counsel claim. However, the PJL alleges its members
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include people detained in TCCC and that its members have been denied effective assistance of
counsel. (First Am. Compl. ¶ 5). Accordingly, this cause of action should not be dismissed based
on a lack of standing.
The undersigned next notes that the issue of prejudice is central to a Sixth Amendment
claim’s survival. Davis, 226 F.3d at 353. Defendants argue a showing of actual prejudice is
required, and that Plaintiffs have failed to allege the TCCC detainees have been actually harmed
regarding the legal proceedings against them. Plaintiffs respond by arguing Defendants’ conduct
creates an unreasonable risk of prejudicing detainees’ cases.
While a Sixth Amendment cause of action for denial of the right to effective counsel requires
actual prejudice, several courts, including the Fifth Circuit, have presumed prejudice in situations
wherein the government intentionally interferes with the attorney–client relationship. The Fifth
Circuit held in United States v. Zarzour, “It is well settled that an intrusion by the government upon
the confidential relationship between a criminal defendant and his attorney, either through
surreptitious electronic means or through an informant, is a violation of the Sixth Amendment right
to counsel.” 432 F.2d 1, 2 (5th Cir. 1970) (citing Hoffa v. United States, 385 U.S. 293 (1966); and
Black v. United States, 385 U.S. 26 (1966)). More recently, the United States Supreme Court denied
certiorari and refused to disturb the Connecticut Supreme Court’s ruling that a prosecutor’s intrusion
into the attorney–client privilege presumptively prejudiced a defendant’s case. State v. Lenarz, 301
Conn. 417 (2011). In that case, police officers lawfully seized the defendant’s laptop. Id. at 421.
Defense counsel advised the court at a hearing that the laptop contained materials subject to the
attorney–client privilege. Id. The court ordered the privileged materials to remain unaccessed. Id.
at 421–22. Nevertheless, the prosecutor in that case read the materials. Id. The court consequently
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presumed prejudice to the defendant’s case, finding that even on retrial, the defendant would be
prejudiced because a new prosecutor could access the transcript from the original trial. Id. at
450–52.

The Third Circuit has similarly held where there is “a knowing invasion of the

attorney–client relationship and where confidential information is disclosed to the government,” the
Sixth Amendment’s prejudice requirement may be called into question. United States v. Levy, 577
F.2d 200, 208 (3d Cir. 1978).
The undersigned finds the PJL’s allegation that its TCCC detainee-members will be
prejudiced by the recording and sharing of confidential telephone calls is sufficient to support a
presumption of prejudice at this preliminary stage. See United States v. Collins, 927 F.2d 605, 618
(6th Cir. 1991) (quoting Levy, 577 F.2d at 209) (“The Levy court held that prejudice is presumed ‘at
the point where attorney–client confidences are actually disclosed to the government enforcement
agencies responsible for investigating and prosecuting the case,’ the defendant need not show the
information was actually used by the prosecutors or of benefit to them.”) (internal citations omitted);
see also Tucker v. Randall, 948 F.2d 388, 390–91 (7th Cir.1991) (“Denying a pre-trial detainee
access to a telephone for four days would violate the Constitution in certain circumstances. The Sixth
Amendment right to counsel would be implicated if plaintiff was not allowed to talk to his lawyer
for the entire four-day period. In addition, unreasonable restrictions on prisoner’s telephone access
may also violate the First and Fourteenth Amendments.”). See United States v. Ryans, 903 F.2d 731,
741 n.11 (10th Cir. 1990) (informant knowingly placed in “defense camp” of indicted defendant
which allowed prosecution to access confidential defense planning taints the entire prosecution and
is a violation of the Sixth Amendment). Plaintiffs’ cause of action for denial of effective assistance
of counsel under the Sixth Amendment therefore should survive.
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3.

Access to Courts

Detainees have a constitutionally protected right of access to the courts.6 Bounds v. Smith,
430 U.S. 817, 821 (1977); Terry v. Hubert, 609 F.3d 757, 761 (5th Cir. 2010). Claims of denial of
access to courts fall into two categories: (1) “claims that systematic official action frustrates a
plaintiff or plaintiff class in preparing and filing suits at the present time,” e.g., access to a law
library or a lawyer; or (2) “specific cases that cannot now be tried (or tried with all material
evidence), no matter what official action may be in the future,” e.g., the loss of the opportunity to
seek relief because there was a police coverup extending until the statute of limitations had run.
Christopher v. Harbury, 536 U.S. 403, 413 (2002). This right generally includes a reasonable
opportunity to receive the assistance of attorneys. Procunier v. Martinez, 416 U.S. 396, 419 (1974)
overruled in part on other grounds by Thornburgh v. Abbot, 490 U.S. 401 (1989).
However, the right of access for detainees is not unlimited. Johnson v. Rodriguez, 110 F.3d
299, 310 (5th Cir. 1997). Rather, it encompasses only a reasonably adequate opportunity to file
nonfrivolous legal claims challenging their convictions or conditions of confinement. Lewis, 518
U.S. at 351; Mann v. Smith, 796 F.2d 79, 84 (5th Cir. 1986); Morrow, 768 F.2d at 623 (direct legal
assistance need not be by trained lawyers).7 Thus, to prevail on a denial of access to the courts claim
under section 1983, a plaintiff must show actual injury in connection with an identifiable legal

6

Plaintiffs correctly point out that pretrial detainees and post-conviction prisoners’ rights of access to the courts
differ somewhat. However, the undersigned notes that Plaintiffs do not specify in the complaint whether the PJL
member–detainees are pretrial detainees or post-conviction prisoners. However, the undersigned’s analysis includes
cases regarding both pretrial detainees and post-conviction prisoners; therefore the discrepancy is immaterial.
7

Defendants, citing Brewer v. Wilkinson, argue the right to access the courts merely protects a detainee’s right
to prepare and transmit legal documents. 3 F.3d 816, 821 (5th Cir. 1993). This undersigned rejects this literal and
narrow reading of Brewer and notes that Brewer also mentions that prison officials should not unreasonably limit a
detainee’s access to legal personnel. Id. at 821 (citing Procunier, 416 U.S. at 419–22).

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proceeding.8 Lewis, 518 U.S. at 349–53. “[An inmate] might show, for example, that a complaint
he prepared was dismissed for failure to satisfy some technical requirement which, because of
deficiencies in the prison’s legal assistance facilities, he could not have known.” Id. at 351. See
Harbury, 536 U.S. at 415 n.12 (the underlying legal proceeding can be “upcoming or lost,” but the
claimant must describe it in the complaint). See also Lewis, 518 U.S. at 354 (“Finally, we must
observe that the injury requirement is not satisfied by just any type of frustrated legal claim. Nearly
all of the access-to-courts cases in the Bounds line involved attempts by inmates to pursue direct
appeals from the convictions for which they were incarcerated.”).
Although the Fifth Circuit has been somewhat forgiving regarding the prejudice requirement
for Sixth Amendment claims, it appears much less flexible regarding actual injury requirement in
the “access to courts” context. See Gross v. Normand, 576 F. App’x 318, 320 (5th Cir. 2014)
(former pretrial detainee alleging prison officials confiscated his legal documents failed to state a
claim absent an allegation of actual injury in his state criminal case); Mendoza v. Strickland, 414 F.
App’x 616, 619 (5th Cir. 2011) (assuming federal pretrial detainee alleged officials interfered with
pursuit of state post-conviction challenge, detainee failed to plead actual injury as required by the
Supreme Court in Harbury); Terry v. Hubert, 609 F.3d 757, 761–62 (5th Cir. 2010) (pretrial detainee
was not denied access to courts because he had the ability to file a legally sufficient claim when he
had writing materials, contact information, and could request help from inmate counsel); Walker v.
Navarro Cnty. Jail,4 F.3d 410 (5th Cir. 1993) (pretrial detainee was required to but failed to allege
his position as a litigant was prejudiced); Jones v. Diamond, 594 F.2d 997, 1024 (5th Cir. 1979)

8

The right of access to courts is therefore one held by detainee–clients, rather than their attorneys.
Accordingly, the ALG and Individual Plaintiffs do not have standing to assert this claim and the undersigned only
considers the sufficiency of the claim in relation to the PJL.

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(pretrial detainees were not prevented from seeking redress in court because they could meet their
attorneys in private rooms at jail facility).
As noted above, the PJL contends that its members will prejudiced by the Defendants’
recording and use of confidential telephone calls.9 (First Am. Compl. ¶ 44). Although the PJL has
properly alleged its members detained in the TCCC face a substantial risk their rights will be violated
for standing purposes and Sixth Amendment purposes, the PJL has not identified a specific
underlying legal proceeding of a PJL member that has been actually injured, as required to satisfy
an access-to-courts cause of action. See Stamper v. Campbell Cnty., 415 F. App’x 678 (6th Cir.
2011) (declining to presume actual injury when pretrial detainee was denied telephone access to
counsel for days prior to plea hearing); Carter v. Lowndes Cnty., 89 F. App’x 439, 442 (5th Cir.
2004) (pretrial detainee who, without providing detail, alleged that he was prejudiced because he was
prevented from filing motion to dismiss failed to show actual injury). This allegation fails to
“identify a ‘nonfrivolous,’ ‘arguable’ underlying claim” that a detainee was unable to pursue.
Harbury, 536 U.S. at 415 (quoting Lewis, 518 U.S. at 353 & n.3). Because the PJL has not
identified a specific underlying claim wherein the denial of access to an attorney prejudiced its
detained members, the PJL has not established actual prejudice. Lewis, 518 U.S. at 351–52; Ruiz
v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Accordingly, the claim for denial of access to
the courts should be dismissed.

9

Plaintiffs allege a violation of the right to access the courts under the First, Fifth, and Fourteenth Amendments.
As the Fifth Amendment only applies to actions of the federal government, and not to the actions of a local government,
the undersigned considers the alleged violation in the context of the First and Fourteenth Amendments. See Morin v.
Caire, 77 F.3d 116, 120 (5th Cir. 1996) (Fifth Amendment only applies to actions of the federal government).

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4.

Color of State Law

Securus, a private company, argues Plaintiffs fail to allege facts showing Securus was acting
under color of state law when recording detainees’ telephone calls. To state a claim under
section1983 against a private entity such as Securus, a plaintiff must: (1) allege a violation of rights
secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of state law. Randolph v. Cervantes, 130
F.3d 727, 730 (5th Cir. 1997).
The Supreme Court has utilized a number of tests to determine whether a private entity is
acting under color of state law. Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549–50 (5th Cir. 2005).
Under the “public function test,” the court examines whether the private entity performs a function
that is traditionally reserved solely to the State. Id. at 549. The “state compulsion test” asks whether
the private entity’s actions are attributable to the State because the State exerts coercive power over
the private entity or provides significant encouragement. Id. at 549–50. The “nexus” or “state action
test” looks at whether the State has insinuated itself into the affairs of the entity such that it was
effectively a joint participant in the wrong. Id. at 550. Finally, under the “joint action test” the
private entity will be considered a state actor if it willfully participated in joint action with the State.
Id.
The analysis of whether a private entity acted under color of state law always begins by
identifying the specific unconstitutional conduct attributed to the private entity. Blum v. Yaretsky,
457 U.S. 991, 1003 (1982). As discussed above, Plaintiffs have properly alleged Securus’ recording
of and granting access to confidential attorney–client telephone calls violates the Fourth and Sixth
Amendment to the United States Constitution. Having identified the specific allegations of
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unconstitutional acts committed, the undersigned thus turns to the various state action tests.
The facts alleged in the complaint are sufficient to meet the joint action test at this stage.
Plaintiffs allege Securus and the Travis County Defendants were notified multiple times that Securus
records confidential attorney–client telephone calls and granting prosecutors access to the recordings.
Plaintiffs further allege Securus and the Travis County Sheriff’s Office “have acted (and continue
to act) in concert to intercept confidential communications between plaintiff attorneys and detainees
. . . . ” (First Am. Compl. ¶ 34); see Hobbs v. Hawkins, 968 F.2d 471, 480 (5th Cir. 1992) (alleging
conspiracy between private and public actors satisfies joint action test). On the face of the
complaint, it appears Securus and the Travis County Defendants willfully participated in the decision
to monitor confidential attorney–client telephone calls. See Cornish, 402 F.3d at 549–51 (joint
action test requires complaint contain factual allegations that county and private entity were willful
or joint participants in unconstitutional act).
The allegations in the complaint are also sufficient to meet the state compulsion test.
Generally, a public contract is insufficient to establish a private actor is acting under color of state
law. See Rendell-Bake v. Kohn, 457 U.S. 830, 841 (1982) (public contract alone does not turn
private actor into state actor); Harris v. Rhodes, 94 F.3d 196, 197 (5th Cir. 1996) (jail maintenance
worker was not acting under color of state law when he punched prisoner during horseplay because
punch involved purely private aim and no misuse of state authority). However, courts have found
a violation by a private actor at the direction of the State to be sufficient “state compulsion” at the
motion to dismiss stage. See Nelson v. Cauley, 2005 WL 415144, at *3 (N.D. Tex. Feb. 22, 2005)
(at motion to dismiss stage, state prisoner’s assertion that private doctors violated his rights at the
direction of state officer was sufficient to show conduct was fairly attributable to the state). Securus’
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contract requires Securus to record and share detainee telephone calls with the Officials. The state
compulsion test is therefore met at the motion to dismiss stage.
Plaintiffs have thus properly pled that Securus was acting under color of state law when it
committed the allegedly unconstitutional acts and the motion to dismiss on this ground should be
denied.10
E.

Declaratory Judgment and Injunctive Relief
Finally, Defendants assert that Plaintiffs’ declaratory judgment action and request for

injunctive relief should be denied for the reasons set forth in their motions to dismiss. As an initial
matter, the undersigned notes this inquiry would require resolution of disputed facts. Accordingly,
this inquiry is properly addressed in a motion for summary judgment, not in a motion to dismiss.
In addition, the success of Plaintiffs’ requests for declaratory judgment and injunctive relief
rest on the success of their claims. As Defendants note, this is because a request for declaratory and
injunctive relief are simply remedies and not free-standing claims. See Volvo Trucks N. Am., Inc.
v. Crescent Ford Truck Sales, Inc., 666 F.3d 932, 938 (5th Cir. 2012) (operation of federal
Declaratory Judgment Act is procedural only); Sid Richardson Carbon & Gas. Co. v. Interenergy
Res., Ltd., 99 F.3d 746, 752 n.3 (5th Cir. 1996) (Texas Uniform Declaratory Judgments Act is merely
procedural device which does not create any substantive rights or causes of action); Spady v.

10

The undersigned agrees with Securus’ contention that Plaintiff has not alleged that telephone and video
conferencing services are traditionally reserved solely for the State, as required to meet the public function test. See
Cornish, 402 F.3d at 549–50 (public function test examines whether private entity’s function is exclusively reserved to
the state). Nor do the allegations in the complaint meet the nexus/state action test. See Richard v. Hoechst Celanese
Chem. Group, Inc., 355 F.3d 345, 352 (5th Cir. 2003) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 357–58
(1974)) (interdependence between State and private actor is required); Goss v. Memorial Hosp. Sys., 789 F.2d 353, 356
(5th Cir. 1986) (existence of state statute alone does not automatically result in state action). Cf. West v. Atkins, 487 U.S.
42, 49 (1988) (where private entity is given its authority by state law, and a deprivation of a right is caused by the
exercise of that authority, the private actor is said to be acting under color of state law). However, as discussed above,
the allegations in the complaint meet the state compulsion and joint action tests at this preliminary stage.

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America’s Servicing Co., 2012 WL 1884115, at *5 (S.D. Tex. May 21, 2012) (request for injunctive
relief absent cause of action supporting entry of judgment is fatally defective and does not state
claim). See also Smith v. JPMorgan Chase Bank, N.A., 519 F. App’x 861, 864 n.5 (5th Cir. 2013)
(because district court properly rejected all of plaintiffs’ claims, it also correctly rejected request for
declaratory judgment). See also Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)
(temporary injunction requires pleading cause of action against defendant); Brown v. Ke–Ping Xie,
260 S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“injunction is an equitable
remedy, not a cause of action”). Consequently, the motions to dismiss Plaintiffs’ claims for
declaratory and injunctive relief should be denied.
IV. RECOMMENDATION
The undersigned RECOMMENDS that the District Court GRANT Defendants Travis
County Sheriff’s Office, Travis County District Attorney’s Office, and Travis County Attorney’s
Office’s Motion to Dismiss (Clerk’s Dkt. No. 28). The undersigned FURTHER RECOMMENDS
that the District Court GRANT in part and DENY in part Defendants Hamilton, Lehmberg and
Escamilla’s Motion to Dismiss (Clerk’s Dkt. No. 27); and GRANT in part and DENY in part
Defendant Securus Technologies, Inc.’s Renewed Motion to Dismiss (Clerk’s Dkt. No. 29).
In sum, the Travis County Sheriff’s Office, Travis County District Attorney’s Office, and
Travis County Attorney’s Office should be dismissed as defendants from this action. Further,
Plaintiffs’ claim for violation of the right to access the courts under the First, Fifth and Fourteenth
Amendment should be dismissed. All other relief sought by the motions to dismiss should be
denied.

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V. OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–53 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED on February 4, 2015.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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