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REPORT & RECOMMENDATION

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICHARD A. KIRKHAM, )

)

Plaintiff, ) CASE NO. C06-188-RSM-MJB

)

v. )

)

KING COUNTY, et al., ) REPORT & RECOMMENDATION

) ON DEFENDANTS’S MOTION FOR

) SUMMARY JUDGMENT

)

Defendants. )

____________________________________)

INTRODUCTION

Plaintiff is currently incarcerated in the Washington State Reformatory, serving a 74-month

sentence for second-degree assault, third-degree rape, malicious mischief and other charges. (Dkt.

#26, Attachment #1). Before he was convicted, plaintiff was detained in the Regional Justice Center

(“RJC”) in Kent, Washington. Plaintiff has filed a civil rights complaint, pursuant to 42 U.S.C. §

1983, alleging that his constitutional rights were violated while he was a pretrial detainee at the RJC. 

Defendants have filed a motion for summary judgment, to which plaintiff has not filed a response. 

For the reasons set forth below, the Court recommends that defendants’ motion be granted and the

complaint and this action be dismissed with prejudice. 

BACKGROUND 

The declarations and exhibits submitted by defendants in support of their motion for

summary judgment establish the following facts, which are uncontroverted by plaintiff: 

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REPORT & RECOMMENDATION

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On March 6, 2005, plaintiff was booked into the RJC, where he was held until April 18,

2006. (Dkt. #26 at 2). During that time, his use of the mail and telephone was restricted under

orders by the King County Superior Court (“state court”), which found that plaintiff had violated a

no-contact order prohibiting him from contacting the alleged victims of his crimes. (Dkt. #27, Ex.

B). The original Order stated that “Defendant shall be completely blocked from all phone usage and

all mail privileges. He shall not be allowed to use the phone except to contact his attorney.” (Id.) 

Plaintiff succeeded in regaining limited privileges during his pretrial detention as the state court

permitted him to communicate with relatives and to send mail to various news, political, and

religious organizations. (Dkt. #26, Attachments #4 and #5).

On February 7, 2006, plaintiff submitted the instant complaint pursuant to 42 U.S.C. §1983,

alleging, inter alia, that the RJC’s telephone and mail restrictions violated his constitutional rights. 

(Dkt. #1). The Court initially declined to serve the complaint and instead issued a Report &

Recommendation (“R&R”) recommending that the complaint be dismissed because at the time the

complaint was filed, plaintiff’s criminal proceedings in state court had not concluded. (Dkt. #5 at 2,

citing Younger v. Harris, 401 U.S. 37, 43-44 (1971)). The Court also recommended dismissal

because it appeared that plaintiff’s complaint challenged actions that had led to his conviction and

was therefore barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). (Id.)

After the Court issued its R&R, plaintiff was sentenced by the state court, thereby concluding

his criminal proceedings. Thus, the Younger abstention doctrine no longer precluded federal court

jurisdiction over the instant complaint. In addition, plaintiff asserted in his objections to the R&R

that the allegations in his complaint did not relate to any criminal prosecutions that he had faced, and

therefore, Heck did not bar the court’s consideration of his complaint. (Dkt. #7 at 3). After

concluding that the bases of the Court’s recommendation were no longer valid, the District Court

remanded this matter to the undersigned United States Magistrate Judge for further proceedings. 

(Dkt. #9).

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REPORT & RECOMMENDATION

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After reviewing plaintiff’s complaint, the Court identified various deficiencies and granted

plaintiff leave to file an amended complaint. (Dkt. #10). Plaintiff requested an extension of time to

file the amended complaint and the Court granted the extension. (Dkt. #12). On August 28, 2006,

plaintiff filed his amended complaint. (Dkt. #14). In his amended complaint, plaintiff narrowed his

claims to a single claim asserting that the recording of his phone calls by RJC staff violated his

“liberty interest” as created by regulation 289-24-200(4) of the Washington Administrative Code. 

(Id. at 7). Upon reviewing plaintiff’s amended complaint, the Court dismissed several defendants

and directed the Clerk to serve the complaint on the remaining defendants. (Dkt. #15).

On November 15, 2006, defendants filed their answer. (Dkt. #24). On November 20, 2006,

the Court issued an Order setting forth deadlines for discovery and dispositive motions. (Dkt. #25). 

In the November 20 Order, the Court advised plaintiff that if defendants filed a summary judgment

motion, then he must submit evidence to oppose the motion. (Dkt. #25 at 3, citing Rand v. Rowland,

154 F.3d 952, 962-963 (9th Cir. 1998)). Otherwise, the Court warned, plaintiff’s case could be

dismissed. (Id.) Defendants filed a motion for summary judgment on February 26, 2007. (Dkt.

#26). Pursuant to the Local Rules, the motion was noted for March 23, 2007; plaintiff’s response

was due March 19, 2007. See Local Rule CR 7(d)(3). Plaintiff has not filed a response and the

motion for summary judgment is ready for review. 

DISCUSSION

Summary judgment is proper only where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The court

must draw all reasonable inferences in favor of the non-moving party. See F.D.I.C. v. O’Melveny &

Meyers, 969 F.2d 744, 747 (9th Cir. 1992), rev’d on other grounds, 512 U.S. 79 (1994). The moving

party has the burden of demonstrating the absence of a genuine issue of material fact for trial. See

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1

 Regarding the Heck argument, the Court notes that, contrary to the assertions plaintiff made

in his objections to the first Report & Recommendation, the telephone recordings appear to have

played a key role in several of his convictions. (Dkt. #26 at 14). Plaintiff was convicted of

tampering with a witness and violating a no-contact Order, and these convictions apparently relied to

some extent on the recordings at issue here. (Id., Attachment #1). The Court further notes that, prior

to his objections to the first R&R, plaintiff had conceded this point when he stated that “all three

stated recordings were entered against me in my criminal proceedings.” (Dkt. #4, Attachment at 9).

REPORT & RECOMMENDATION

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Anderson, 477 U.S. at 257. Mere disagreement, or the bald assertion that a genuine issue of material

fact exists, no longer precludes the use of summary judgment. See California Architectural Bldg.

Prods., Inc., v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 

As previously mentioned, plaintiff’s sole claim is that defendants recorded his phone calls

while he was at the RJC, in violation of regulation 289-24-200(4) of the Washington Administrative

Code (“the regulation”). Defendants argue that this claim lacks merit because (1) the regulation has

been repealed and no longer applies to the RJC; (2) plaintiff has failed to establish that the regulation

created a liberty interest protected by the Due Process Clause of the Constitution; and (3) the phone

recording was used to convict plaintiff of several criminal charges and therefore Heck applies. (Dkt.

#26 at 13-15). 

Although the first and third arguments appear sound, the Court need not address them because

the second argument provides a sufficient basis upon which to recommend dismissal of the

complaint.1

 Although he does not provide a copy of the regulation nor quote its exact text, plaintiff

contends that by prohibiting the recording of telephone calls in prisons, the regulation created a

liberty interest protected by the due process clause of the Fourteenth Amendment. (Dkt. #14 at 7). 

Plaintiff cites Carlo v. City of Chino, 105 F.3d 493 (9th Cir. 1997), as the sole support for this

argument. 

However, the facts and the regulation at issue in Carlo are clearly distinguishable from the

case at bar. In Carlo, the California regulation permitted arrestees to make three phone calls within

three hours of arrest; despite that regulation, the plaintiff in Carlo was not permitted to make any

phone calls. Id. at 495-96. Here, the regulation purportedly prohibited the recording of phone calls

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and plaintiff was permitted to make several. Therefore, Carlo is not an analogous case and provides

no support for plaintiff’s argument. Consequently, plaintiff has not shown that he has any liberty

interest that was violated by the recording of his phone calls. Cf. Lanza v. New York, 370 U.S. 139,

143 (1962) (“In prison, official surveillance has traditionally been the order of the day.”); United

States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996) (“[A]ny expectation of privacy in outbound

[telephone] calls from prison is not objectively reasonable and . . . the Fourth Amendment is

therefore not triggered by the routine taping of such calls.”).

Accordingly, the Court concludes that plaintiff has not satisfied his burden of showing that a

genuine issue of material fact exists regarding his claim that defendants violated his constitutional

rights by recording his telephone calls while he was a pretrial detainee at the RJC. Defendants’s

motion for summary judgment therefore should be granted.

CONCLUSION

For the foregoing reasons, the Court recommends that defendants’s motion for summary

judgment be granted and the complaint and this action be dismissed with prejudice. In addition,

because plaintiff’s claim lacks legal or factual support, this dismissal should count as a “strike” under

28 U.S.C. § 1915(g). A proposed Order accompanies this Report and Recommendation.

DATED this 2nd day of April, 2007.

AMONICA J. BENTON

United States Magistrate Judge

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