Prison Phone Justice

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No. 13-17361
______________________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
______________________
DONALD YORK EVANS and JOHN WITHEROW
Plaintiffs-Appellants,
v.
INMATE CALLING SOLUTIONS, et al.,
Defendants-Appellees.
______________________
On Appeal from the United States District Court for the District of Nevada
No. 3:08-cv-00353-RCJ-VPC
Hon. Robert Clive Jones
______________________
APPELLANT WITHEROW’S REPLY BRIEF
______________________
CAL J. POTTER, III, ESQ.
Nevada Bar No. 1988
POTTER LAW OFFICES
1125 Shadow Lane
Las Vegas, Nevada 89102
TRAVIS N. BARRICK, ESQ.
GALLIAN, WELKER & BECKSTROM, LLC
Nevada Bar No. 9257
540 E. St. Louis Avenue
Las Vegas, Nevada 89104
Attorneys for Appellant Witherow

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TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i-iii
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv-v
A.

Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

B.

Federal Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

C.

State Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

D.

Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

E.

Administrative Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

I.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

III.

Statement of Issues Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . .1-2

IV.

Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

V.

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

VI.

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-11

VII. Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12-39
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Summary of Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13
C. The District Court Erred in Dismissing Witherow’s Civil Rights Claims
Against Appellees ICS, Embarq and Global Based on a Finding These
Appellees Were Not Acting Under Color of State Law. . . . . . . . . . .13-20
D. The District Court Erred in Refusing Witherow Leave to Amend His
Second Amended Complaint to Allege Sufficient Facts to State a Claim
Against Appellees ICS, Embarq and Global for Violation of His
Constitutional and Statutory Rights Involved in the Interception and
Monitoring of His Privileged Telecommunications with
His Attorneys. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-27

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E. The District Court Erred in Granting Summary Judgment to Appellees on
Witherow’s Fourth and Fourteenth Amendment Claims Based on a
Finding Witherow Did Not Have a Reasonable Expectation of Privacy in
His Privileged Telecommunications with His Attorneys and He
Consented to the Monitoring on Occasions. . . . . . . . . . . . . . . . . . . . 27-33
F. The District Court Erred in Determining Appellees Were Acting Pursuant
to an “Ordinary Course Of Business” Exemption to the Omnibus Crime
Control And Safe Streets Act (“Wire Tap Act”) When Initially
Intercepting and Monitoring Witherow’s Telecommunications with His
Attorneys and the Re-Monitoring of Attorney-Client Telephone
Conversations to Determine the Nature of the Communications. . . .33-34
G. The District Court Erred in Granting Summary Judgment to Appellees on
Witherow’s Fourteenth Amendment Claims Based on an Inadequate
Analysis of Those Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34-35
H. The District Court Erred in Granting Summary Judgment to Appellees
Henley, Donat and Helling for Their Conduct in the Grievance
Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-37
I. The District Court Erred in Imposing Evans’ Sanctions for Failure to
Cooperate in the Discovery Process on Witherow. . . . . . . . . . . . . . .37-38
J. The District Court Erred in Refusing to Instruct the Jury Regarding State
Law and Regulations Governing the “Duties” of NDOC Employees
Regarding the Interception and Monitoring of Prisoner
Telecommunications with Their Attorneys and in Instructing the Jury that
Intercepting, Monitoring and Re-Monitoring Prisoner
Telecommunications with Their Attorneys was Permissible in the
Ordinary Course of Appellees’ Duties. . . . . . . . . . . . . . . . . . . . . . . . 38-39

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VIII. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
IX.

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

X.

Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

XI.

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43-44

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TABLE OF AUTHORITIES
A.

CASES

Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc) . . . . . . .19, 21
Browning v. MCI WORLDCOM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Dennis v. Sparks, 449 U.S. 24, 27-28, (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . 22, 26, 27
Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . .22, 27
George v. S. Pac.-CSC Work Furlough,
91 F.3d 1227, 1230-1232 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . 14, 26
Haines v. Kerner, 404 U.S. 519, 520 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..19
In re State Police Litigation, 888 F. Supp. 1235, 1255-1256 and 1258
(D.Conn. 1995), affirmed 88 F.3d 111 (2nd Cir. 1996) . . . . . . . . . . . . . . . .33
Jacobson v. Rose, 592 F.2d 515, 522 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . 17, 26
Karim-Panahi v. LAPD, 839 F.2d 621 (9th Cir. 1988) . . . . . . . . . . . . . . . .22, 26, 27
Katz v. United States, 389 U.S. 347, 360 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . .33
Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 16
Lonnegan v. Hasty, 436 F, Supp. 2d 429, 426-440 (E.D.N.Y. 2006) . . . . . . . . . . 33
Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc) . . . . . . . . . . . . . . . . 20, 21
Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . 22, 26, 27
United States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996) . . . . . . . . . . . . . 32, 33 ,34
Whalen v. Roe, 429 U.S. 589, 599 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 35
Wolff v. McDonnell, 418 U.S. 539, 556-557 (1974) . . . . . . . . . . . . . . . . . . . .30, 35

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B.

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FEDERAL STATUTES

18 USC §2511. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 3, 32
42 USC §1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 14
28 USC §1915(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
C.

STATE STATUTES

NRS 209.419. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 15, 28, 29, 30, 31, 32, 33, 35
NRS 49.055. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30, 32, 33, 35
D.

RULES

FRCP 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
FRCP 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 27
E.

ADMINISTRATIVE REGULATIONS

AR718. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
AR 718.01(1.3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
AR 722. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
AR 722.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 38
AR 722.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 38

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I.
INTRODUCTION
Appellant Witherow (“Witherow”) has set forth an Introduction. (Opening
Brief [#13], p. 1). Appellees Embarq, Skolnik, Helling, Donat, Henley, Baker and
Connelly do not set forth an Introduction. (Answering Briefs [#39 and #50]).
Inmate Calling Solutions (“ICS”) and Global Tel Link (“Global”) have set forth an
Introduction. (Answering Briefs [#49-1 and #51], pp. 1-2 and 1, respectively).
II.
STATEMENT OF JURISDICTION
Witherow has sets forth his Statement of Jurisdiction. (Opening Brief [#13],
pp. 2-3). Embarq does not dispute that Statement and Skolnik, Helling, Donat,
Henley, Baker and Connally (“NDOC1 Appellees”, collectively) concur with that
Statement. (Answering Briefs [#39 and #50], p. 1 and 3, respectively). ICS and
Global do not set forth a Statement of Jurisdiction. (Answering Briefs [#49-1 and
#51]).
III.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
Witherow has set forth a Statement of Issues Presented for Review
consisting of eight (8) issues. (Opening Brief [#13], pp. 2-4). Embarq and Global

1

Nevada Department of Corrections herein.
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have responded to the first two (2) issues, ICS has responded to the first two (2)
issues with three (3) issues2. (Answering Briefs [#39, #49-1 and #51], pp. 1, 2 and
2-4, respectively). NDOC Appellees3 have responded to five (5) of the eight (8)
arguments presented by Witherow, lettered C, D and G-H, with five (5) arguments
lettered A-E. (Answering Brief [#50], pp. 1-2).
IV.
STANDARD OF REIVEW
Witherow has set forth a Standard of Review. (Answering Brief [#13] p. 4).
Embarq has sets forth a Statutory Framework and a Standard of Review.
(Answering Brief [#39], pp. 1-2 and 7). ICS indicates the Embarq Statutory
Framework is applicable and provides a Standard of Review. (Answering Brief
[#49-1], pp. 4 and 15-16). NDOC Appellees provide a Standard of Review.
(Answering Brief [#50], pp. 9-14). Global provides a Standard of Review.
(Answering Brief [#51], p. 3).
Appellees fail to set forth relevant provisions of 18 U.S.C. §2511 in their
Answering Briefs. (Answering Briefs [#39, #49-1, 50 and 51]). That statute should

2

ISC breaks one (1) issue into two (2) parts.

3

Witherow notes that NDOC Appellees have listed seven (7) Questions Presented,
numbered 1-7, but only present arguments on five (5) issues, lettered A-E. NDOC
Appellees failed to address their Question #3 and appear to have combined their
argument regarding Questions #6-7 into an argument lettered E. Very confusing,
which may be the intent of NDOC Appellees.
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be analyzed in considering the answers of Embarq, ICS and Global. The relevant
provisions of 18 U.S.C. §2511 are as follows:
(1) Except as otherwise provided in this chapter any person who –
(a) intentionally intercepts, endeavors to intercept, or procures
any other person to intercept or endeavor to intercept, any wire,
oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other
person to use or endeavors to use any electronic, mechanical, or
other devise to intercept any oral communication when –
(i) such devise is affixed to, or otherwise transmits a
signal through, a wire, cable, or other like connection
used in wire communication;
*****
“* * * shall be subject to suit * * *”.
V.
STATEMENT OF THE CASE
Witherow has set forth a Statement of the Case. (Opening Brief [#13], pp. 514). Embarq does not dispute Witherow’s procedural history of the case insofar as
it describes events in which Embarq was not involved and identifies two (2)
typographical errors. (Answering Brief [#39], p. 2). Witherow apologizes for those
errors. ICS and NDOC Appellees have set forth their own Statements of the Case.
(Answering Briefs [#49-1 and #50], pp. 4-12 and 3-9, respectively). Global does
not provide a Statement of the Case. (Answering Brief [#51]).
...
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VI.
STATEMENT OF FACTS
Witherow has provided a Statement of Facts. (Opening Brief [#13], pp. 1224). Company Appellees and NDOC Appellees have provided a Statement of
Facts. (Answering Briefs [#39, #49-1, #50 and 51], pp. 3-7, p. 12, pp. 14-26 and
pp. 2-3, respectively). Witherow disputes portions of the facts set forth by Embarq,
Global and NDOC Appellees and will address those disputes below.
Embarq sets forth facts pertaining to Witherow’s allegations concerning the
contract between the Nevada Department of Corrections (“NDOC”) and Embarq to
provide telephone services to prisoners. (Answering Brief [#39], p. 3, l. 17 - p. 4, l.
3). Embarq fails to include Witherow’s allegations that Embarq maintained and
operated the telephone equipment used by NDOC employees in various remote
locations to intercept and monitor properly placed legal calls by prisoners to their
attorneys. (Opening Brief [#13], p. 14, ll. 12-17 and Answering Brief [#39]).
Embarq also fails to address the issue of whether the contract with the NDOC
prohibits or authorizes NDOC employees to use telephone equipment maintained
and operated by Embarq in remote locations to intercept and monitor properly
placed prisoner telecommunication with their attorneys. (Answering Brief [#39]).
Embarq claims that “Witherow does not allege that any of his attorney calls
were intercepted, monitored, or eavesdropped on by Embarq or that Embarq had
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any role in the NDOC policies and procedures. (Answering Brief [#39], p. 4, ll. 711). Witherow does allege that Appellees, who include Embarq, violated
Witherow’s statutory and constitutional rights when Appellees Baker and Connally
intercepted and monitored his properly placed telecommunications with his
attorneys on telephone equipment maintained and operated by Embarq. (Opening
Brief [#13], p. 14, l. 18 - p. 15, l. 16). Embarq ignores the fact that Embarq
maintained and operated the telephone equipment in remote locations used by
NDOC employees to intercept and monitor prisoner telecommunications with their
attorneys; Embarq knew the telephone equipment was to be used for the
interception and monitoring of prisoner telecommunications with their attorneys;
and Embarq was responsible for the use of that telephone equipment for the
purpose for which the equipment was intended, i.e., the interception and
monitoring of prisoner telecommunications with any person, including attorneys.
(Answering Brief (#39]).
Embarq claims their motion for summary judgment was based on facts,
supported by declarations, establishing Embarq (i) did not intercept, eavesdrop on,
or record any of the calls that Witherow placed to his attorneys; (ii) did not assist
or authorize any party to engage in any such interception, eavesdropping, or
recording; and (iii) did not know of any alleged interception, eavesdropping, or
recording of Witherow’s calls to attorneys. (Answering Brief [#39], p. 4, ll. 135

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19). That motion was denied by the Court (EOR Vol. I, pp. 100-101) and Embarq
fails to recognize and refuses to acknowledge the fact that Embarq was responsible
for (i) maintaining and operating the telephone equipment used by NDOC
employees to intercept and monitor Witherow’s telecommunications with his
attorneys; (ii) facilitating the interception and monitoring of Witherow’s
telecommunications with his attorneys by maintaining and operating the telephone
equipment used for the purpose for which the equipment was intended; and, (iii)
knew the telephone equipment Embarq maintained and operated would be used by
NDOC employees for the purpose for which the equipment was intended.
(Opening Brief [#13], p. 14, ll. 12-17, and p. 14, l. 18, - p. 15, l. 16; and
Answering Brief [#39]).
Embarq claims the facts alleged in the Proposed Third Amended Complaint
(“PTAC”) (EOR XV, pp. 3806-3852) remain essentially unchanged from the facts
alleged in the Second Amended Complaint (“SAC”) (EOR XVI, pp. 4082-4114;
and Answering Brief [#39], p. 5, ll. 11-12). A review of the facts alleged in the
SAC (Id., ¶¶5-7, 16, 18-22, 25-29, 3rd -114th Causes of Action), Motion for Leave
to Amend (EOR XV, pp. 3806-3852 p. 4, l. 13 - p. 5, l. 18); and PTAC (EOR XV,
pp. 3806-3852, ¶¶5-7, 18-28, 33-37 and 3rd-114th Causes of Action), clearly show
additional facts establishing the liability of Embarq for the interception and
monitoring of Witherow’s telecommunications with his attorneys.
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Global maintains that the “passive provision of goods and services does not
rise to the level of willful participation in “joint action” with the state * * *”.
(Answering Brief [#51], p. 3, l. 17). The Company Appellees did far more than
“merely” provide goods and services to the state. NDOC employees could not have
intercepted and monitored Witherow’s attorney telecommunications without the
willful participation of the Company Appellees in maintaining and operating the
telephone equipment and the Company Appellees had full knowledge and
understanding of the purposes for which that telephone interception and
monitoring equipment would be used, i.e., to intercept and monitor Witherow’s
telecommunications with his attorneys. This was joint action based on the fact that
NDOC employees could not have intercepted and monitored Witherow’s telephone
calls with his attorneys without the willful cooperation of the Company Appellees.
NDOC Appellees repeatedly state Witherow challenges the interception and
monitoring of 111 of his attorney telecommunications. (Answering Brief [#50], p.
14, l. 10, and p. 15, ll. 13-15). The figure is not correct. Witherow claims 112 of
his attorney telecommunications were intercepted. (EOR XVI, pp. 4082-4114, p. 15
- p. 28, 3rd-114th Causes of Action). Simple mathematics establishes that there are
112 causes of action – not 111.
NDOC Appellees claim Witherow claims only 5 specific instances wherein
privileged information was heard. (Answering Brief [#50], p. 14, ll. 14-16 and p.
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15, ll. 13-15). That is misdirected.

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All 112 of Witherow’s attorney

telecommunications were confidential, as all of the telephone calls were to an
attorney’s office and the content of the conversation is not relevant to the issue of
whether the conversation was regarding a legal matter or whether there was an
attorney-client relationship. See, NRS 209.419(4)(d) (See also, EOR III, pp. 367).
NDOC Appellees admit that all of Witherow’s telecommunications with his
attorneys were intercepted and monitored and claim that once Evans or his office
identified themselves the monitoring would cease. (Answering Brief [#50], p. 18,
ll. 4-7). Again, this is misdirected.

Witherow’s telecommunications with his

attorneys or their offices were confidential and could not be intercepted or
monitored by statute and NDOC regulations.
NDOC Appellees set forth a litany of facts justifying their interception and
monitoring of Witherow’s attorney telecommunications. (Answering Brief [#50],
pp. 14-24). These Appellees ignore and fail to reference the fact that, by Nevada
statute and NDOC regulations, all of Witherow’s telecommunications with his
attorney or their offices are “confidential”; the NDOC, even when mandated by
statute, failed to provide prisoners with an alternate method of communication for
confidential communications; and NDOC regulations “prohibit” the interception
and monitoring of prisoner telecommunications to attorney offices. See, NRS
209.419(3) and (4)(d), Administrative Regulation (“AR”) 718 and AR 722.
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NDOC Appellees also set forth a section titled Allegations of Wrongdoing.
(Answering Brief [#50], pp. 24-26). This is yet another attempt by NDOC
Appellees to misdirect attention from the facts for the following reasons:
1.

There is no “statute or regulation” authorizing the “initial”
interception and monitoring of prisoner attorney telecommunications.
This was a “legal fiction” argued by NDOC Appellees in summary
judgment proceedings, adopted by the Magistrate and adopted by the
District Court. Witherow is not required to demonstrate a practical
alternative to an illegal activity.

2.

“Extended” monitoring of Witherow’s attorney telecommunications is
a legal fiction, existing nowhere in law, created by NDOC Appellees
in summary judgment proceedings, adopted by the Magistrate and
adopted by the District Court.

3.

Witherow’s expectation of privacy in telecommunications with his
attorneys is created by the 4th Amendment of the U.S. Constitution,
common law, Nevada statutes and NDOC regulations, his liberty
interests are created by those laws. He was not required to prove a
genuine attorney-client privilege because statutes mandated that calls
to his attorney’s office number were confidential. He was not required
to prove the “legal nature” of his telecommunications with his
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attorneys, only that the telecommunications were to an attorney’s
office,

which

rendered

the

telecommunications

confidential.

However, during the relevant time period, he did prove an attorneyclient relationship with Attorneys Evans, Picker and Hager.
4.

Witherow has proven he exhausted the grievance process and no
appeal was taken therefrom. That is not an issue in this appeal. The
issue is whether the grievance responders, Appellees Henley, Donat
and Helling, are liable for the ongoing violation of Witherow’s
constitutional and statutory rights by their failure to intervene to stop
the ongoing violation of those rights when the ongoing violations
were brought to their attention in the grievance process, rendering
each of them liable for each attorney telecommunication intercepted
and monitored after the ongoing violations were brought to their
attention in the grievance process.

5.

NDOC Appellees misrepresent the sanction Imposed on Attorney
Donald York Evans for his failure to cooperate in the discovery
process. The sanction imposed on Evans was that he “is prohibited
from introducing the subject matter of Mr. Henley’s interrogatories to
“support his claims or to oppose defendants” and the court deems
established the facts that Mr. Henley sought to establish by these
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interrogatories.” (emphasis added). (EOR I, pp. 70-84). The Order
does not establish the claims made by NDOC Appellees regarding
matters sought to be established by defendants in the discovery
process.

Additionally, Evans’ claims were dismissed before trial,

Evans was not a plaintiff at trial and, when Witherow attempted to
question Evans at trial in support of Witherow’s claims, Evans was
precluded from testifying, even though Evans was not offering
evidence in support of Evans’ claims or a defense to those claims.
6.

NDOC Appellees argue reversal based on jury instructions is
appropriate only if the error was not harmless or misleading or if they
misstate the law or facts. NDOC Appellees fail to address the fact that
the jury was not instructed on the statutes and regulations governing
and controlling the duties of NDOC employees while acting in the
“ordinary course of business” relating to prisoner telecommunications
with attorneys and, without those instructions, the jury was unable to
determine whether NDOC Appellees were acting in the ordinary
course of their duties imposed by Nevada statutes and regulations.

The facts, not Appellees’ assertions, tell the story.
...
...
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VII.
ARGUMENT
A. INTRODUCTION
Witherow presented Arguments on eight (8) issues lettered A-H for
consideration on appeal. (Opening Brief [#13], pp. 24-56). Embarq, ICS and
Global answered the two (2) arguments on issues lettered A and B, with Appellee
ICS making three (3) arguments on the two (2) arguments. (Answering Briefs [#39,
#49-1 and #51], pp. 7-14, 16-36 and 4-11). NDOC Appellees answered five (5)
arguments lettered A-E on Witherow’s issues lettered C-H. Witherow will reply on
his eight (8) lettered arguments lettered A-H by him, combining the additional
argument by ICS into the appropriate argument and addressing NDOC Appellees
arguments lettered A-E under his lettered arguments C, D and E-H.
B. SUMMARY OF ARGUMENTS
Witherow does not provide a Summary of Arguments. (Opening Brief
[#13]). Company Appellees and NDOC Appellees do provide a Summary of
Arguments. (Answering Briefs [#39, #49-1, #51 and #50, respectively], pp. 6-7,
13-15, 3-4 and 26-28, respectively). Company Appellees basically argue Witherow
failed to allege sufficient facts to establish Company Appellees were not acting
under color of state law and allowing amendment of his SAC (EOR XVI, pp. 40824114) would have been futile. NDOC Appellees basically argue: the District Court
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determined

that

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monitoring

of

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Witherow’s

attorney

telecommunications was correct and did not violate statutory or constitutional
rights; the ordinary course of business exception to the Omnibus Crime Control
and Safe Streets Act (“Wire Tap Act”) precluded liability for any alleged
violations of rights; Witherow has not stated any claim against grievance
responders; Evans’ proffered testimony was properly excluded; and there was no
error attributable to the jury instructions. Appellees assertions are without merit
and are addressed in Witherow’s arguments.
C. THE DISTRICT COURT ERRED IN DISMISSING WITHEROW’S CIVIL RIGHTS
CLAIMS AGAINST APPELLEES ICS, EMBARQ

AND

GLOBAL BASED

ON A

FINDING THESE APPELLEES WERE NOT ACTING UNDER COLOR OF STATE
LAW.
Witherow’s argument regarding this issue is set forth at pages 24-27 of his
Opening Brief [#30]. Company Appellees’ arguments are set forth at pages 7-10,
16-28 and 4-8, respectively, of their Answering Briefs [#39, #49-1 and #51].
Company Appellees argue that, in determining whether a private party was
acting under color of state law in a USC §1983 action, a four (4) part test must be
used to determine whether the acts of a private party are considered state action;
the District Court determined Witherow

failed to argue which test should be

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applied4 and determined Witherow has not plead sufficient facts that could satisfy
any of the tests; Witherow failed to present any facts that would satisfy the four (4)
part test; Witherow mistakenly relies on three (3) cases for the general proposition
that a §1983 case may lie

against a private party that engages in willful

participation in joint action with the state; and Witherow has not plead sufficient
facts to satisfy the state action requirement to impose liability on a private actor.
(Answering Briefs [#39, #49-1 and #51], p. 10, l. 16 - p. 14, l. 11; p. 17, l. 10 - p.
24, l. 2; and p. 5, l. 4 - p. 8, l. 15). Company Appellees are mistaken.
Under the four (4) part test relied upon by Company Appellees articulated in
George v. S. Pac.-CSC Work Furlough, 91 F.3d 1227, 1230-1232 (9th Cir. 1996),
Company Appellees were state actors.
First, the public function test. Company Appellees did engage in a
traditionally exclusive government function. Traditionally, prisoners were not
permitted to make telephone calls. It is only within the past forty (40) years that
prisoners have been permitted to make telephone calls to people in the community
by and through the authorization of governmental prison officials and on telephone
equipment installed, maintained and operated by private telephone companies
pursuant to specific contracts with prison officials. The private telephone company
acting under contract with the government officials is the only telephone company
4

Witherow did not argue this four (4) part test because, as a pro se litigant, he was
unaware of this test or of any decision articulating these tests.
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permitted to maintain and operate the telephone equipment used by prisoners to
make those calls. Prisoners are not permitted to engage the services of a private
telephone system provider. This is a joint action by state and private actors and the
private actors are only acting pursuant to state law authorizing their conduct.
Company Appellees, during the time period relevant to the claims each of them,
were state authorized private actors.
Second, the state compulsion test. State law, NRS 209.419, requires prison
officials to provide telephone services to prisoners. Since prison officials do not
own, maintain and operate prisoner telephone systems, prison officials are required
to contract with private telephone service providers to maintain and operate
prisoner telephone services. This was state compulsion to provide telephone
services to prisoners. Company Appellees, under the terms and conditions of a
contract, were state actors under compulsion to provide telephone services to
prisoners.
Third, the close nexus test. Company Appellees could not provide telephone
services to prisoners without the consent and authorization of prison officials.
Company Appellees agreed to provide telephone services to prisoners under the
terms and conditions of a contract with the NDOC. That contract formed the basis
for the close nexus between Company Appellees and the NDOC in providing
telephone services to prisoners.
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Fourth, the joint action test. Company Appellees provided telephone services
to prisoners only because they were authorized by the contract with the NDOC to
provide those services to prisoners. Under the terms and conditions of the contract,
providing telephone services to prisoners was a joint business venture by Company
Appellees and the NDOC to secure financial benefits for both by providing
telephone services to prisoners. Company Appellees and the NDOC were engaged
in joint action when Company Appellee and the NDOC entered into a for-profit
contract, pursuant to state laws, to provide telephone services to prisoners.
Company Appellees became state actors when (i) they entered into a for
profit contract with the NDOC to provide telephone services to prisoners; (ii)
agreed, as parts of that contract, to maintain and keep operational the telephone
equipment used by prisoners for telecommunications with people in the
community; (iii) attached to the telephone lines and made an integral part of those
telephone system the equipment that enabled NDOC employees to intercept and
monitor all outgoing prisoner telephone calls, including telephone calls to
attorneys; (iv) and, knew the interception and monitoring equipment attached to
the telephone lines would be used by NDOC employees to intercept and monitor
prisoner telecommunications with their attorneys. These actions by Company
Appellees made Company Appellees state actors acting under color of state law,
Dennis v. Sparks, 449 U.S. 24, 27-28, (1980), and Kirtley v. Rainey, 326 F.3d
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1088, 1092 (9th Cir. 2003), and made Company Appellees liable for damages for
the violation of Witherow’s constitutional and statutory rights - even though
Company Appellees did not personally intercept, monitor, or listen to Witherow’s
telecommunications with his attorneys. Jacobson v. Rose, 592 F.2d 515, 522 (9th
Cir. 1978) (establishing liability). Company Appellees made the interception and
monitoring of Witherow’s telecommunications with his attorneys possible,
predictable and easy to accomplish.
Any claim by Company Appellees that Company Appellees did not
knowingly and willingly participate in the interception and monitoring of
Witherow’s telecommunications with his attorneys is belied by the facts alleged in
the record. (EOR XVI, pp. 4082-4114, ¶¶6, 16, 18-22, 25-29, and 3rd -114th Causes
of Action EOR XV, pp. 3806-3852, ¶¶6, 18-28, 33-37 and 3rd-114th Causes of
Action). Company Appellees knew the interception and monitoring telephone
equipment Company Appellees attached to the telephone lines used by prisoners to
make telephone calls to people in the community would be used by NDOC
employees to intercept and monitor all outgoing prisoner telephone calls, including
telephone calls to attorneys; and, Company Appellees knew that NDOC employees
would use the interception and monitoring equipment that Company Appellees
maintained and operated for the purpose for which the equipment was intended.
Company Appellees, had they wanted to prevent NDOC employees from
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intercepting and monitoring prisoner telecommunications with attorneys, would
have demanded a provision be included in their contract with the NDOC
prohibiting NDOC employees from using that equipment to intercept and monitor
prisoner telecommunications with their attorneys and/or designed that equipment
to prevent NDOC employees from intercepting and monitoring prisoner
telecommunications with their attorneys, just as was done with recording
capabilities.
Witherow submits that his SAC (EOR XVI, pp. 4082-4114) alleged
sufficient facts to state a claim against Company Appellees. He alleged Company
Appellees were defendants; were acting under color of state law; were responsible
for maintaining and operating the telephone system used by prisoners to make
telephone calls to people in the community, including attorneys, that had the
capability to intercept and eavesdrop on all prisoner telecommunications from
various remote locations; the NDOC adopted, approved and implemented policies
and procedures authorizing NDOC employees to use the referenced telephone
system equipment to intercept and eavesdrop on all prisoner telecommunication,
including telecommunications with attorneys; Company Appellees violated
Witherow’s constitutional and statutory rights on 112 separate occasions when
Appellees Baker, Connally and Does XXI-XXX intercepted and eavesdropped on
112 of Witherow’s telecommunications with his attorneys; Company Appellees
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knew, or should have known, their described conduct violated Witherow’s rights;
and Company Appellees caused Witherow to suffer injuries and damages as a
direct or proximate cause of their action. (Id.). Those allegations are sufficient to
state a claim against Company Appellees for the violation of Witherow’s
constitutional and statutory rights and the District Court erred in determining that
Witherow had failed to state a claim against Company Appellees for the violation
of his rights while acting under color of state law.
The Court simply failed to liberally construe Witherow’s pleadings or to
afford him the benefit of any doubts regarding Company Appellees acting under
color of state law and the knowledge and willful participation of Company
Appellees in the interception and monitoring of his telecommunications with his
attorneys by NDOC employees on the telephone equipment maintained and
operated by Company Appellees. Haines v. Kerner, 404 U.S. 519, 520 (1972) and
Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc).
Based upon the foregoing, Company Appellees were acting under color of
state law5 when Company Appellees acted jointly with the NDOC in allowing
NDOC employees to intercept and monitor Witherow’s telecommunications with
his attorneys and Witherow did set forth sufficient facts in his SAC (EOR XVI, pp.
4082-4114) to state a claim against Company Appellees for the violation of his
5

In the event this Court was to determine Embarq was not acting under color of
state law, Witherow’s federal statutory claim against Embarq would remain viable.
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constitutional and statutory rights; and the District Court erred in determining
Company Appellees were not acting under color of state law and in dismissing
Witherow’s SAC (Id.) for failure to allege sufficient facts to state a claim against
Company Appellees for the violation of his constitutional and statutory rights.
D. THE DISTRICT COURT ERRED IN REFUSING WITHEROW LEAVE TO AMEND
HIS SECOND AMENDED COMPLAINT TO ALLEGE SUFFICIENT FACTS TO
STATE A CLAIM AGAINST APPELLEES ICS, EMBARQ AND GLOBAL FOR
VIOLATION OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS INVOLVED
IN THE INTERCEPTION AND MONITORING OF HIS PRIVILEGED
TELECOMMUNICATIONS WITH HIS ATTORNEYS.
Witherow’s argument regarding this issue is set forth at pages 28-30 of his
Opening Brief [#13]. Company Appellees’ arguments on this issue are set forth at
pages 10-14, 24-36 and 8-11, respectively, of their Answering Briefs [#39, #49-1
and #51].
Company Appellees argue that Witherow is mistaken regarding the law
since the passage of the Prison Litigation Reform Act (“PLRA”) and the District
Court did not abuse its discretion when it denied Witherow leave to amend his
claims a third time. (Answering Briefs [#39, #49-1 and #51], p. 10, l. 16 - p. 14, l.
11; p. 24, l. 3 - p. 36, l. 6; and p. 8, l. 16 - p. 12, l. 2). Company Appellees are
mistaken.
Company Appellees are mistaken regarding the laws concerning amendment
of pleading since the enactment of the PLRA; and Embarq’s reliance on the
decision in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc), for the
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contention the district court may not grant leave to amend a complaint that fails to
state a claim. (Answering Brief, p. 10, l. 19 - p. 11, l. 8). This Court in Smith
decided that it is not clear whether §1915(e) precludes a district court from
dismissing a complaint that fails to state a claim with leave to amend; dismissal
with leave to amend has been the standard in cases stretching back nearly 50 years;
and a clear expression of congressional intent was required before 50 years of case
law would be discarded. Smith, 203 F.3d at 1127. The laws regarding leave to
amend under FRCP Rule 12(b)(6) and Rule 15 have remained the same since
passage of the PLRA.
Embarq, presumably because of its mistaken reading of the Smith decision,
fails to address the facts concerning the laws relevant to leave to amend for a pro
se litigant. (Answering Brief, p. 10, l. 16 - p. 14, l. 11). Witherow was a pro se
litigant when he prepared and filed his SAC (EOR XVI, pp. 4082-4114) and
Motion for Leave to Amend, with attached PTAC (EOR XV, pp. 3806-3852; and
EOR XVII, pp. 4222-4268, Clerk’s Record #60-#195). Therefore, the laws
governing the interpretation of pleadings and motions for leave to amend for pro se
litigants must be analyzed in determining whether Witherow stated a claim in his
SAC (EOR XVI, pp. 4082-4114) and whether his Motion for Leave to Amend
(EOR XV, pp. 3806-3852) was improperly denied. Smith, 203 F.3d at 1127. Those
laws are reflected in the decisions in Bretz v. Kelman, 773 F.2d 1026 (9th Cir.
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1985) (en banc), Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987), Eldridge v. Block,
832 F.2d 1132 (9th Cir. 1987), Karim-Panahi v. LAPD, 839 F.2d 621 (9th Cir.
1988), and Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984), and cited by
Witherow at pages 29-30 of his Opening Brief. Under those laws, Witherow was
entitled to a liberal construction of his pleadings, he was required to be afforded
the benefit of any doubts, he must be provided leave to amend his complaint unless
it is absolutely clear the deficiencies in the complaint could not be cured by
amendment and the District Court must provide him with a statement of the
complaint’s deficiencies in conjunction with the dismissal for failure to state a
claim. Bretz, 773 F.2d at 1027 n. 1, Noll, 1446 at 1448-1449, Eldridge, 832 F.2d at
1135-1136, Karim-Panahi, 839 F.2d at 623-624, and Franklin, 745 F.2d at 1228 n.
9. These decisions are relevant to Witherow’s claims based on the fact he was a
pro se litigant and an analysis of Witherow’s issues on appeal under those
decisions will establish the errors of the District Court mandating reversal.
Embarq argues that: (i) neither justice nor the merits required the district
court to grant Witherow a fourth attempt at stating a claim; (ii) four of the five
factors used to assess a motion for leave to amend6 weigh heavily against
Witherow; (iii) granting Witherow leave to file a third amended complaint would
6

Embarq identifies five (5) factors to be considered in determining whether leave
to amend complaint is appropriate. (Answering Brief, p. 11 footnote 5). Embarq
only addresses three (3) of those factors, i.e. prejudice, futility and whether
plaintiff had previously amended his complaint.(Id., p. 11, l. 12 - p. 14, l. 11).
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be futile; (iv) the facts in the PTAC (EOR XV, pp. 3806-3852) remain essentially
unchanged; (v) no facts were alleged that supported a conclusion Embarq was a
state actor; (vi) and no facts were alleged that Embarq “intentionally engaged in
the interception of Witherow’s attorney calls. (Answering Brief, p. 11, l. 9 - p. 13, l.
5; and Answering Briefs [#49-1 and #51], p. 24, l. 3 - p. 36, l. 6, and p. 8, l. 16 - p.
12, l. 2, respectively). Appellees ICS and Global assert essentially the same claims
as Embarq and Appellant’s argument regarding this issue are applicable to their
arguments. Company Appellees’ arguments regarding this matter are without
merit.
Justice and fairness demanded that Witherow be granted leave to file a third
amended complaint. Embarq fails to identify the four factors allegedly weighing
heavily against Witherow. (Answering Brief, p. 11, l. 9 - p. 13, l. 5; and Answering
Briefs [#49-1 and #51], p. 24, l. 3 - p. 36, l. 6; and p. 8, l. 16 - p. 12, l. 2,
respectively). The factors relevant to Witherow’s request for leave to amend were
addressed by him. (EOR XV, pp. 3806-3852). The District Court failed to address
those factors or to make a decision that Witherow had not met the requirements of
those factors. (EOR I, pp. 97). This was reversible error.
The filing of a third amended complaint would not have been futile. As was
shown in the preceding issue argument, Witherow did allege sufficient facts in his
SAC (EOR XVI, pp. 4082-4114) that, given a liberal construction and giving
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Witherow the benefit of any doubts, were sufficient to state a claim against
Company Appellees for the violation of his constitutional and statutory rights
while acting under color of state law. However, because the Court did not afford
Witherow a liberal construction or the benefit of any doubts, he prepared a PTAC
(EOR XV, pp. 3806-3852) for consideration.
That PTAC (Id.) contained all of the facts relevant to Company Appellees
contained in his SAC (EOR XVI, pp. 4082-4114) and added factual allegations
that:

(i)

NDOC

prisoners

were

prevented

by

law

from

possessing

telecommunication devices and from contracting for telecommunication devices
without the consent of the NDOC Director; (ii) Company Appellees were unable to
provide NDOC prisoners with telecommunication services without the consent and
approval of the State of Nevada and the NDOC and without compliance with the
laws, regulations, policies and contractual terms and conditions; (iii) Company
Appellees entered into a business agreement with the State of Nevada and the
NDOC, with the majority of the profits from the business agreement being paid to
the NDOC for providing telephone calling services to NDOC prisoners; (iv)
Company Appellees, pursuant to contract, were required to maintain and operate as
part of their telephone calling services telephone equipment intended to enable and
allow NDOC employees from various remote locations to intercept and eavesdrop
upon all prisoner telephone calls made using their telephone calling system; (v)
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Company Appellees were under contract during the relevant time periods from
05/07/2008 through 08/01/2008 with the State of Nevada and the NDOC to
provide telephone calling services to NDOC prisoners; (vi) the NDOC adopted,
approved and implemented policies, procedures and regulations governing and
controlling the use of the prisoner telephone system maintained and operated by
Company Appellees providing that all telephone calls made by NDOC prisoners
using the telephone system maintained and operated by Company Appellees would
be intercepted and eavesdropped upon by NDOC employees using telephone
equipment maintained and operated by Company Appellees for that purpose and
requiring NDOC prisoners to use the telephone system/equipment maintained and
operated by Company Appellees to make confidential attorney/client telephone
calls; (vii) Company Appellees knew the telephone equipment maintained and
operated by them for the purpose of intercepting and eavesdropping on all
prisoners would be used for the purpose for which the equipment was intended;
(viii) Company Appellees knew, or should have known, of the published policies,
procedures and regulations of the NDOC governing and controlling NDOC
prisoners’ use of the telephone calling services provided by them on the telephone
equipment maintained and operated by them; and (ix) Company Appellees knew,
or should have known, that the telephone equipment maintained and operated by
them for the purpose of enabling and allowing NDOC employees to intercept and
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eavesdrop on all NDOC prisoner telephone calls made using that equipment would
be used by NDOC employees to intercept and eavesdrop on NDOC prisoners’
confidential attorney/client telephone calls made using that equipment. (EOR XV,
pp. 3806-3852, ¶¶18-28). Additional relevant facts are contained in PTAC (Id.,
¶¶6, 16, 31, 33-37 and 40; and 3rd-112th Causes of Action). Witherow submits that
the facts alleged in the PTAC are more than sufficient for a pro se litigant to state a
claim against a private telephone company for the violation of his constitutional
and statutory rights while acting under color of state law. Bretz, 773 F.2d at 1027
n. 1, Noll, 1446 at 1448-1449, Eldridge, 832 F.2d at 1135-1136, Karim-Panahi,
839 F.2d at 623-624, George, 91 F.3d at 1230-1232, and Jacobson, 592 F.2d at
522. Company Appellees’ arguments regarding this matter are simply without
merit.
The District Court dismissed Witherow’s claims against Company Appellees
for failure to state a claim without providing Witherow with an opportunity to
amend his complaint in an attempt to correct the alleged deficiencies in his SAC
(EOR XVI, pp. 4082-4114; and EOR I, pp. 100-101). The Court clarified that its
Order (EOR I, pp. 100-101) did not provide Witherow with leave to amend. (EOR
I, pp. 98-99). The Court then denied Witherow’s Motion for Leave to Amend
(EOR XV, pp. 3806-3852) as moot. (EOR I, pp. 97). Finally, the Court denied
Witherow’s Motion for Reconsideration of Motion for Leave to Amend (EOR XV,
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pp. 3778-3781) without addressing the merits of the Motion. Order (EOR I, pp. 9496). Under the provisions of FRCP Rule 15 and decisions in Noll, 1446 at 14481449, Eldridge, 832 F.2d at 1135-1136, Karim-Panahi, 839 F.2d at 623-624, and
Franklin, 745 F.2d at 1228 n. 9, the Court abused its discretion by failing to
provide Witherow, a pro se litigant, with an opportunity to file an amended
complaint correcting the alleged deficiencies in his operative complaint and by
denying Witherow leave to file an amended complaint.
Based upon the foregoing, the decisions of the District Court should be
reversed and the case remanded to allow Witherow to file an amended complaint
and to pursue his claims.
E. THE DISTRICT COURT ERRED
APPELLEES

ON

IN

GRANTING SUMMARY JUDGMENT

WITHEROW’S FOURTH

AND

TO

FOURTEENTH AMENDMENT

CLAIMS BASED ON A FINDING WITHEROW DID NOT HAVE A REASONABLE
EXPECTATION
WITH

OF

PRIVACY

HIS ATTORNEYS

AND

IN

HIS PRIVILEGED TELECOMMUNICATIONS

HE CONSENTED

TO THE

MONITORING

ON

OCCASIONS.
Witherow’s argument regarding this issue is set forth at pages 30-34 of his
Opening Brief [#13]. NDOC Appellees’ argument on this issue, lettered A, is set
forth at pages 28-42 of their Answering Brief [#50].

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NDOC Appellees contend that interception and monitoring Witherow’s
telecommunications with his attorneys under the 4 th and 14th Amendments was
permissible because prisoners abused the use of the telephone system, monitoring
is required to determine whether a prisoner telephone call is personal or legal, the
attorney–client privilege is not a constitutional right, Witherow’s 4 th and 14th
Amendment rights were not violated because Witherow has no expectation of
privacy in his telecommunications with his attorneys, Witherow has no expectation
of privacy in his 106 personal telecommunications with his attorneys, Witherow
failed to prove that actual attorney-client conversations occurred and Witherow
filed to prove that extended monitoring of his attorney telecommunications
occurred, and Witherow overlooked the fact that no liberty or property interest is at
stake in the interception and monitoring of his telecommunications with his
attorneys. (Answering Brief [#50], p. 28, l.4 - p. 31, l. 10). NDOC Appellees
ignore the facts and misdirect the attention from the relevant matters.
First, prisoner abuse of the segregation telephone system is not relevant to
Witherow’s claim. NRS 209.419(3) requires that the NDOC Director “shall adopt
regulations providing for an alternate method of communications for those
communications

by

offender

which

are

confidential”.

Witherow’s

telecommunications with his attorney are “confidential”. NRS 209.419(4)(d). The

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Director failed to adopt regulations for an alternative method of communications
for confidential offender communications. NDOC Appellees ignore this fact.
Instead, the NDOC Director adopted AR 722.07 (09/06/2003) and 722.11
(02/08/2008), which established alternate procedures for confidential offender
communications with their attorneys that eliminated the problem with segregation
prisoner abuse of the telephone system and AR 718.01(1.3) (05/08/2008), which
prohibited the monitoring of prisoner telecommunications with their attorneys.
Rather than comply with that statute and those regulations NDOP employees
required prisoners to use the institution telephones for telecommunications with
their attorneys and intercepted and monitored those telecommunications. These
facts negate NDOC Appellees arguments regarding these matters.
Second, under the system devised by the Nevada Board of Prison
Commissioners when adopting the foregoing regulations, an NDOC employee
would determine a prisoner telecommunications was to a law office before handing
the telephone to a prisoner. This complied with the mandates of the statute and
eliminated the need for an NDOC employee to intercept and listen to a prisoner
telecommunication to an attorney to determine whether the telecommunication was
to a legal number7.

7

No attorney-client privilege is needed for a “confidential” communication with an
attorney. All that is required is that the telecommunication is to the telephone
number of an attorney. NRS 209.419(4)(d).
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Third, Witherow has made no claim that the attorney-client privilege is a
constitutional right. His claim is that, under the 14 th Amendment of the U.S.
Constitution, he has a right to privacy, Whalen v. Roe, 429 U.S. 589, 599 (1977),
and, under NRS 49.055 and NRS 209.419(4)(d), he has a state created right to
confidential (private) telecommunications with his attorney, and his state created
right to confidential telecommunications with his attorney, under Wolff v.
McDonnell, 418 U.S. 539, 556-557 (1974), is protected by the Due Process Clause
of the 14th Amendment to the U.S. Constitution. This means that, when NDOC
Appellees intercepted and monitored his confidential telecommunications to his
attorneys, NDOC Appellees violated, not only his 4th Amendment right to be free
from unreasonable search and seizures, but also his due process rights under the
14th Amendment to confidential telecommunications with his attorneys. NDOC
Appellees totally ignore and fail to address this issue.
Fourth, NDOC Appellees claim that Witherow made 106 personal telephone
calls to his attorneys is totally refuted by the record. Each of those 106 telephone
calls, plus the other 6 telephone calls Witherow made to his attorneys, were
“confidential” telecommunications to an attorneys’ number. (EOR IV, pp. 662-663
and 739-740; EOR III, pp. 374 and 506; EOR II, pp. 124-125). NDOC Appellees
make claims without supporting facts.

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Fifth, Witherow was not required to prove his telecommunications with his
attorneys were legal calls involving the attorney-client privilege or that the calls
were intercepted and monitored for an “extended” period of time. All that was
required by statute to classify a telecommunication as “legal” was the fact that the
telecommunication was to an attorney, regardless of what was discussed or how
long the interception and monitoring lasted. See, NRS 209.419(4)(d).
Sixth, Witherow’s state created rights to confidential telecommunications
with his attorneys is a “liberty” interest that is protected from infringement by the
Due Process Clause of the 14th Amendment to the U.S. Constitution.
NDOC Appellees then conduct an analysis of five (5) specific
telecommunications with attorneys wherein Witherow believes confidential
information was disclosed to third parties and adamantly denies those
telecommunications were overheard or the information disclosed.

(Answering

Brief [#50], p. 31, l. 12 - p. 36, l. 16). The question of whether any of Appellees
overheard or disclosed information regarding those telecommunications is simply
not relevant to Witherow’s actual claims that his telecommunications were
intercepted and monitored. NDOC Appellees have already admitted, at trial and in
their pleadings, that all of Witherow’s telecommunications with his attorneys were
intercepted and monitored. The relevant question is whether NDOC Appellees

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interception and monitoring of those calls was a violation of Witherow’s statutory
and constitutional rights.
NDOC Appellees’ claim that the interception and monitoring of Witherow’s
telecommunications with his attorneys did not violate Witherow’s statutory or
constitutional rights because Witherow had no expectation of privacy in those
telecommunications and, even if he had an expectation of privacy, he consented to
the monitoring. (Answering Brief [#50], p. 36, l. 17 - p. 42, l. 15). As was shown
above, Witherow did have a state created right to confidential telecommunications
with his attorneys under NRS 49.055, NRS 209.419(4)(d). NDOC Appellees
ignore those facts and conduct an analysis of Witherow’s claims under the analysis
of personal telephone calls by this Court in United States v. Van Poyck, 77 F.3d
285 (9th Cir. 1996). NDOC Appellees, as they have done in the past, ignore
footnote 9, at page 291, that the analysis provided in that case regarding personal
telephone calls does not apply to properly placed telecommunications with an
attorney.
The bottom line is that Witherow does have a reasonable expectation of
privacy in his telecommunications from prison to his attorneys, he never
“consented” to the interception and monitoring of his telecommunications with his
attorneys and the interception and monitoring of those telecommunications by
NDOC Appellees did violate his 4th and 14th Amendment and 18 USC §2511
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rights. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring), In
re State Police Litigation, 888 F. Supp. 1235, 1255-1256 and 1258 (D.Conn. 1995),
affirmed 88 F.3d 111 (2nd Cir. 1996), Lonnegan v. Hasty, 436 F, Supp. 2d 429,
426-440 (E.D.N.Y. 2006), and Browning v. MCI WORLDCOM, pp. 4214, ln. 25 –
pp. 4220, ln. 25; NRS 49.055 and NRS 209.419(4)(d). NDOC Appellees failed to
argue the relevant facts.
F. THE DISTRICT COURT ERRED IN DETERMINING APPELLEES WERE ACTING
PURSUANT TO AN “ORDINARY COURSE OF BUSINESS” EXEMPTION TO THE
OMNIBUS CRIME CONTROL AND SAFE STREETS ACT (“WIRE TAP ACT”)
WHEN INITIALLY INTERCEPTING AND MONITORING WITHEROW’S
TELECOMMUNICATIONS WITH HIS ATTORNEYS AND THE RE-MONITORING
OF ATTORNEY-CLIENT TELEPHONE CONVERSATIONS TO DETERMINE THE
NATURE OF THE COMMUNICATIONS.
Witherow’s argument regarding this issue is set forth at pages 34-41 of his
Opening Brief [#13]. NDOC Appellees’ argument on this issue, lettered B, is set
forth at pages 42-45 of their Answering Brief [#50].
NDOC Appellees, again relying on the Van Poyck analysis of prisoner
personal telecommunications, claim that intercepting and monitoring of all
prisoner telecommunications was a function of an NSP officer working in the
control room of Unit 13, and that Witherow “consented” to the interception and
monitoring of his telecommunications with his attorneys by using the telephone
system knowing his telecommunications would be intercepted and monitored.
(Answering Brief [#50], p. 42, l 16 - p. 45, l. 2). NDOC Appellees ignore the fact
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that: the analysis of prisoner personal telecommunication provided in Van Poyck is
not to be used for conducting an analysis of properly placed prisoner
telecommunications with attorneys; state statutes governing and controlling the
ordinary course of business for NDOC employees with regard to prisoner
telecommunications with attorneys mandate that those telecommunications are
confidential and may not be intercepted and monitored by NDOC employees; and
Witherow cannot “consent” to allow NDOC employees to engage in illegal
conduct prohibited by statutes and regulations. The facts are that the interception
and monitoring of prisoner telecommunications with their attorneys is prohibited
by statute and regulations, NDOC employees intercepting and monitoring prisoner
telecommunications with their attorneys is not a duty performed in the “ordinary
course of business” and the interception and monitoring of prisoner
telecommunications with their attorneys is an illegal activity.
G. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
APPELLEES ON WITHEROW’S FOURTEENTH AMENDMENT CLAIMS BASED
ON AN INADEQUATE ANALYSIS OF THOSE CLAIMS.
Witherow’s argument regarding this issue is set forth at pages 41-43 of his
Opening Brief [#13]. NDOC Appellees do not address this argument in their
Answering Brief [#50]. It appears NDOC Appellees ignore the fact that Witherow
has a right to privacy embodied in the 14 th Amendment of the United State
Constitution, a “state created right”, protected by the Due Process Clause of the
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of

the

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Constitution,

to

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“confidential”

communications with an attorney and/or an attorney’s office. Whalen v. Roe, 429
U.S. 589, 599 (1977) (right to privacy), Wolff v. McDonnell, 418 U.S. 539, 556557 (1974)(state created rights protected by due process), NRS 49.055 (right to
confidential communications with attorney), and NRS 209.419(4)(d) (right to
confidential telecommunications with attorney or attorney office). By ignoring this
argument, NDOC Appellees admit to the validity of this argument and negate their
previous arguments that Witherow does not have an expectation of privacy in his
communications with his attorneys and their offices.
H. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
APPELLEES HENLEY, DONAT AND HELLING FOR THEIR CONDUCT IN THE
GRIEVANCE PROCESS.
Witherow’s argument regarding this issue is set forth at pages 43-45 of his
Opening Brief [#13]. NDOC Appellees’ argument on this issue, lettered C, is set
forth at pages 45-47 of their Answering Brief [#50].
NDOC Appellees claim that Witherow filed to exhaust his claims in the
grievance process, he makes sweeping allegations regarding the investigation of
his claims in the grievance process and he has no rights in the grievance process.
(Answering Brief [#50], p. 45, l. 3 - p. 47, l. 10). NDOC Appellees ignore the fact
that the District Court previously determined Witherow had exhausted his claims
in the grievance process and Appellees have not appealed that decision. (EOR I,
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pp. 45-47 and pp. 33; and EOR XVII, pp. 4222-4268). NDOC Appellees also fail
to address the fact that, in denying Witherow relief in the grievance, Appellees
Henley, Donat and Helling implicitly conducted an investigation of Witherow’s
claims and made a determination that he was not entitled to any relief for the
ongoing violation of his statutory and constitutional rights alleged in the grievance
process. NDOC Appellees do not address the fact that Witherow’s claims against
Appellees Henley, Donat and Helling are for their “personal participation” in the
ongoing violation of Witherow’s statutory and constitutional rights established by
their personal knowledge of the ongoing nature of the violation of those rights by
NDOC employees and their failure to intervene to stop those ongoing violations.
Witherow’s claims against Appellees Henley, Donat and Helling are for their
violation of Witherow’s statutory and constitutional rights and not for the violation
of any “rights” in the grievance process.
The Magistrate, District Judge and NDOC Appellees’ counsel appear to
focus on Witherow’s claims in the 116th Cause of Action of the SAC (EOR XVI,
pp. 4082-4114) rather that Witherow’s claims against Appellees Henley, Donat
and Helling contained in the 3rd through 114th Causes of Action in the SAC (Id.).
Appellees Henley, Donat and Helling had a duty to intervene and stop the ongoing
violation of Witherow’s statutory and constitutional rights when those ongoing
violations were brought to their attention in the grievance process and each of them
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should have been on trial with Appellees Baker and Connally at trial. Summary
judgment on all of Witherow’s claims against Appellees Henley, Donat and
Helling should not have been granted.
I. THE DISTRICT COURT ERRED IN IMPOSING EVANS’ SANCTIONS FOR
FAILURE TO COOPERATE IN THE DISCOVERY PROCESS ON WITHEROW.
Witherow’s argument regarding this issue is set forth at pages 46-49 of his
Opening Brief [#13]. NDOC Appellees’ argument on this issue, lettered D, is set
forth at pages 47-50 of their Answering Brief [#50].
NDOC Appellees claim that the District Court properly excluded the
testimony of Attorney Don Evans based on a claim that Attorney Evans was
invoking the attorney-client privilege, Witherow was permitted to have a member
of Evans’ staff testify at trial and Witherow suffered no prejudice by the refusal of
the Court to allow Evans to testify regarding his confidential communication with
Witherow at trial. (Answering Brief [#50], p. 47, l. 11 - p. 50, l. 16). As Witherow
indicates in his Opening Brief [#13], supported by the record, the sanction imposed
on Evans was imposed on Evans and not on Witherow. Evans and Appellees
Skolnik and Henley were no longer parties in the trial proceedings. Witherow, in
his deposition, did not invoke the attorney-client privilege regarding his
communications with Evans; therefore, there was no attorney-client privilege to
invoke. Witherow was prejudiced by the loss of the testimony of Evans regarding
the nature of Witherow’s confidential communications with Evans, the interception
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of monitoring of those telecommunications and the evidence available from a tape
recording made by Evans of several of those telecommunications.
J. THE DISTRICT COURT ERRED IN REFUSING TO INSTRUCT THE JURY
REGARDING STATE LAW AND REGULATIONS GOVERNING THE “DUTIES”
OF NDOC EMPLOYEES REGARDING THE INTERCEPTION AND MONITORING
OF PRISONER TELECOMMUNICATIONS WITH THEIR ATTORNEYS AND IN
INSTRUCTING THE JURY THAT INTERCEPTING, MONITORING AND REMONITORING PRISONER TELECOMMUNICATIONS WITH THEIR ATTORNEYS
WAS PERMISSIBLE IN THE ORDINARY COURSE OF APPELLEES’ DUTIES.
Witherow’s argument regarding this issue is set forth at pages 49-56 of his
Opening Brief [#13]. NDOC Appellees’ argument on this issue, lettered E, is set
forth at pages 50-55 of their Answering Brief [#50].
NDOC Appellees contend that the instructions given to the jury were an
accurate statement of the law and “incorporated the intent of Nevada’s statutes
regarding confidentiality and merged this statutory intent with the need to allow for
prison officials to stop unauthorized and improper attempts to circumvent very
necessary restrictions on the use of phones”. (Answering Brief [#50], p. 50, l. 17 p. 55, l. 16). NDOC Appellees’ argument is totally devoid of merit. What NDOC
Appellees are saying is that, regardless of state statutes and state law, NDOC
employees may intercept and monitor prisoner telecommunications with their
attorneys until those employees make an uninformed determination that the
telecommunication is of a “legal nature” – rather than comply with state laws and
regulations, particularly AR 722.07 (09/06/2003) and AR 722.11 (02/02/2008), and
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that state laws and state regulation governing and controlling telecommunications
between a prisoner and his attorney are simply not relevant for a jury to consider in
determining whether NDOC Appellees were “acting in accordance with their
duties and responsibilities”. If NDOC Appellees are right in their contention, the
citizens of Nevada do not need state laws or regulations, as state employees may
make up their own laws and regulations as those employees deem appropriate.
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VIII.
CONCLUSION
Based upon all of the foregoing, this Court should reverse the District
Court’s Orders dismissing all of Witherow’s claims against Appellees, denying
Witherow’s Motion for Leave to File Third Amended Complaint, granting
Defendants’ summary judgment on Appellant’s Fourth and Fourteenth
Amendment claims; refusing to permit Evans to testify regarding Witherow’s
claims; and the verdict of the jury.
DATED this 10th day of July, 2014.
POTTER LAW OFFICES
GALLIAN, WELKER & BECKSTROM
By: /s/ Cal J. Potter, III, Esq.
CAL J. POTTER, III, ESQ.
1125 Shadow Lane
Las Vegas, NV 89102
TRAVIS N. BARRICK, ESQ.
Nevada Bar No. 9257
540 E. St. Louis Avenue
Las Vegas, Nevada 89104
Attorneys for Appellant Witherow

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IX.
CERTIFICATE OF COMPLIANCE
This brief is accompanied by a Motion for Leave to File an Oversize Brief
Pursuant to Circuit Rule 32-2 and is 8,775 words, excluding the portions exempted
by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable.
DATED this 10th day of July, 2014.
POTTER LAW OFFICES
GALLIAN, WELKER & BECKSTROM
By: /s/ Cal J. Potter, III, Esq.
CAL J. POTTER, III, ESQ.
1125 Shadow Lane
Las Vegas, NV 89102
TRAVIS N. BARRICK, ESQ.
Nevada Bar No. 9257
540 E. St. Louis Avenue
Las Vegas, Nevada 89104
Attorneys for Appellant Witherow

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X.
STATEMENT OF RELATED CASES
Appellant certifies that the case Evans v. Skolnik, No. 13-17360 is a related
action.8
DATED this 10th day of July, 2014.
POTTER LAW OFFICES
GALLIAN, WELKER & BECKSTROM
By: /s/ Cal J. Potter, III, Esq.
CAL J. POTTER, III, ESQ.
1125 Shadow Lane
Las Vegas, NV 89102
TRAVIS N. BARRICK, ESQ.
Nevada Bar No. 9257
540 E. St. Louis Avenue
Las Vegas, Nevada 89104
Attorneys for Appellant Witherow

8

Appellant, attorney Donald York Evans (“Evans”) had a separate appeal pending,
Appeal No. 13-17360, which has since been dismissed. Evans was not a party at
the time of trial.
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XI.
CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of July, 2014, I electronically filed
the foregoing APPELLANT WITHEROW’S REPLY BRIEF with the Clerk of
the Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
Kaitlyn Miller, Esq.
Kelly Werth, Esq.
SENIOR DEPUTY ATTORNEY GENERAL
100 North Carson Street
Carson City, NV 89701-4717
Attorney for Appellees Skolnik,
Helling, Donat, Baker, & Connally
Mark M. Iba, Esq.
STINSON MORRIS HECKER, LLP
1201 Walnut Street, Suite 2900
Kansas City, MO 64106
Attorney for Embarq Payphone Services
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Richard Henry Gordon, Esq.
BUTZEL LONG, P.C.
1747 Pennsylvania Ave., N.W., Suite 300
Washington, D.C. 20006
Attorney for Inmate Calling Solutions
Tyler R. Andrews, Esq.
GREENBERG TRAURIG, LLP
3773 Howard Hughes Parkway, Suite 400
Las Vegas, NV 89169
Attorney for Global Tel Link

/s/ Jenna Enrico
An Employee of Potter Law Offices

44