United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This proceeding arises out of the alleged electronic monitoring of a prison inmate's telephone calls with his attorney. Pending before the Court is Plaintiff's Motion for a Temporary Restraining Order ("TRO") and/or Preliminary Injunction (ECF No. 109). For the reasons given herein, the Court grants the motion.
I. FACTS AND PROCEDURAL HISTORY
In this case, pro se Plaintiff Charles Randolph, a death row inmate within the Nevada Department of Corrections ("NDOC"), alleges that his confidential telephone conversations with his attorney, James Colin, Esq., were "repeatedly, surreptitiously, and intentionally monitored and recorded" without a court order or consent. (Compl., ECF No. 7, at 10). Plaintiff argues that a recent incident of such illegal conduct warrants a TRO and/or preliminary injunction.
A. Plaintiff's Complaint
Plaintiff sued the State of Nevada, on relation of the NDOC; James "Greg" Cox, director of NDOC; E.K. McDaniel, the warden of the Ely State Prison ("ESP"); Renee Baker, associate warden of programs and acting warden of ESP; and Pam Del Porto, inspector general of NDOC (collectively "Defendants"). ( Id. at 7-9). Plaintiff also sued Century Link Sales Solutions, Inc. ("Century Link") and Embarq Communications, Inc. ("Embarq"), telephone service providers contracting with the NDOC. These two parties have since been dismissed from this case.
Plaintiff's complaint arises out of the following facts. Plaintiff alleged that as far back as March 2008, Plaintiff provided Defendants with an "Allowed Calling List Request" form which listed James A. Colin, Esq., Plaintiff's attorney, who was admitted to practice law in Nevada, his work phone number, (702) 521-6316, as the individual and phone number Plaintiff intended to receive confidential communications from. ( Id. ). This form was maintained in Plaintiff's Institutional File, or I-File, and was available to Defendants upon their request. ( Id. ). Between March 2008 and April 1, 2011, Plaintiff telephonically entered the phone number (702) 521-6316 into Century Link's and Embarq's legal database and was approved. ( Id. ). Plaintiff reasonably believed his legal communications were private and did not consent to any future monitoring, recording or interception, eavesdropping, wiretapping, or listening to Plaintiff's telephone calls to Mr. Colin. ( Id. at 14). A communication made by an inmate is confidential if it is made to an attorney who has been admitted to practice law in any State. ( Id. at 12). NDOC Administrative Regulation 718 states that department staff are responsible to know and comply with this regulation. ( Id. ). The regulation also states that telephone calls, except those approved between an inmate and his attorney, must be monitored and/or recorded. ( Id. at 13).
"On April 2, 2011, while engaged in legal communication with Mr. Colin, Mr. Colin and Plaintiff were abruptly notified by Defendant Century Link's and Embarq's computer-voice operating system, this call is being recorded.'" ( Id. ). "Immediately upon hearing such" message, Mr. Colin and Plaintiff were "both shocked, frustrated, in disbelief, and chilled by this message, and Plaintiff was obstructed and prevented from further discussing significant and important appellate issues, strategies, and legal matters that were awaiting briefing to the Nevada Supreme Court, and Mr. Colin did need Plaintiff's consent and consideration to further proceed." ( Id. ).
Plaintiff alleged that he and his attorney tried repeatedly to get Defendants to stop monitoring their calls. These attempts included submitting an "Inmate Request Form" to Baker that went without response, ( id. at 14); submitting an emergency grievance which was denied, ( id. at 15); initiating NDOC's Inmate Grievance Procedure, ( id. at 15); and sending a letter from Colin to McDaniel requesting that the unlawful activity cease, ( id. at 16). Defendants did not stop monitoring Plaintiff and Colin's calls until over two months after Plaintiff and Colin discovered their calls were being monitored. ( See id. at 20).
The complaint alleged five causes of action. ( Id. at 21-25). In the first cause of action, Plaintiff alleged deprivation of his First Amendment right to free speech, pursuant to 42 U.S.C. § 1983 against McDaniel, Baker, Cox, and Del Porto. ( Id. at 21). In the second cause of action, Plaintiff alleged deprivation of his Fourth Amendment rights, pursuant to 42 U.S.C. § 1983, against McDaniel, Baker, and Cox. ( Id. at 22). In the third cause of action, Plaintiff alleged violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2520, against McDaniel, Baker, Cox, Del Porto, Century Link, and Embarq. ( Id. at 23). In the fourth cause of action, Plaintiff alleged a state tort of negligent supervision/training pursuant to NRS §§ 41.031(2), 41.0322, 41.130, and 209.243 against State of Nevada ex. rel. NDOC. ( Id. ). In the fifth cause of action, Plaintiff alleged a state tort violation of Article I, Section 18 of the Nevada Constitution pursuant to NRS §§ 41.031(2), 41.0322, 41.130, and 209.243 against State of Nevada ex. rel. NDOC. ( Id. at 25).
B. Recent Allegations of Misconduct
To support his motion for a TRO and/or preliminary injunction, Plaintiff asserts that Defendants illegally monitored a telephone call with his attorney on May 15, 2014, pointing to a discovery response from Century Link as evidence of this allegation. The discovery response was a document that included a May 15, 2014 notes entry by a Century Link employee, Debra Lambe. ( See Mot. TRO and/or Prelim. Inj. Ex. 2, ECF No. 109, at 17). The entry stated "I listened to this call to verify that it was the inmate registering an attorney number. Verification is complete." ( Id. ). Plaintiff asserts the call referenced in Lambe's notes entry was one that took place between Plaintiff and Colin, his attorney. Based on this recent alleged illegal conduct, Plaintiff seeks a TRO and/or preliminary injunction to enjoin Defendants from monitoring calls with his attorney until an evidentiary hearing can be held. Plaintiff requests an order from this Court requiring Lambe to be examined at the hearing.
II. LEGAL STANDARD
To obtain a temporary restraining order Under Fed.R.Civ.P. 65(b), a plaintiff must make a showing that immediate and irreparable injury, loss, or damage will result to plaintiff without a temporary restraining order. Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 F.Supp.2d 1111, 1126 (E.D. Cal. 2001) ("The standard for issuing a preliminary injunction is the same as the standard for issuing a temporary restraining order."). The temporary restraining order "should be restricted to serving [its] underlying purpose of preserving the status quo and preventing irreparable harm just so long as is ...