The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiffs, who are attorneys employed by the Legal Aid Society of New York, claim that, by secretly recording their conversations with certain detainees at the federal Bureau of Prisons' Metropolitan Detention Center ("MDC"), located in Brooklyn, New York, defendants, a former warden of MDC and other employees of the Bureau of Prisons ("BOP"), violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (the "Wiretap Act" or "Title III"), 18 U.S.C. §§ 2510-2522, and the Fourth and Fifth Amendments of the U.S. Constitution. The former warden, Dennis Hasty, moves the court pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiffs' complaint on a variety of grounds, including qualified immunity. For the reasons set forth below, plaintiffs' Fifth Amendment claim is dismissed, and Hasty's motion is otherwise denied.
For purposes of the motion to dismiss, all factual allegations set forth in the complaint are accepted as true and all reasonable inferences are drawn in favor of plaintiffs.*fn1
In connection with the federal government's investigation of the terrorist attacks that occurred on September 11, 2001, 84 individuals ("Detainees") were arrested and detained at MDC on immigration charges. Detainees remained at MDC for approximately eleven months. During most of that time period and at all times relevant to this case, defendant Dennis Hasty was the warden of MDC. Hasty retired in April 2002 and was succeeded as warden by Michael Zenk. None of the Detainees were charged with criminal activity related to terrorism, although some were charged with other crimes. Most of them were eventually deported.
At MDC, inmates who are deemed to pose a heightened security risk are segregated from the general population in an area called the Special Housing Unit ("SHU"). In September 2001, one wing of the SHU was modified to enable confinement of the Detainees in the most restrictive and secure conditions permitted by BOP policy. The modified wing was called the "administrative maximum SHU" or "ADMAX SHU." It was separated from the rest of the SHU by an area containing a holding cell, a lieutenant's office, and a visiting area (the "Visiting Area"). The Visiting Area consisted of three adjacent meeting spaces, each divided by a metal wall approximately three feet high and a thick glass partition that extended from the top of the wall to the ceiling, preventing physical contact between inmates and visitors. Whenever a Detainee was taken from his cell, he would be escorted by three officers and a lieutenant at all times. During routine escorts on the ADMAX SHU, Detainees were handcuffed behind their backs and placed in leg restraints. When escorted to visits, Detainees were handcuffed in front, restrained in waist chains, and placed in leg restraints; after visits, they were pat-searched or strip-searched.
On October 5, 2001, in response to allegations by a Detainee that he had been physically abused by MDC officers, MDC instituted a policy requiring officers to videotape Detainees whenever they were outside of their assigned cells. Subsequently, this policy was adopted by the BOP. In a memorandum dated October 9, 2001, the BOP Northeast Regional Director instructed all wardens in the region, including Hasty, to videotape post-September 11th detainees whenever they were escorted outside of their cells in order to deter unfounded allegations of abuse.
Plaintiffs' Meetings with Detainees
In October 2001, one of the Detainees telephoned the Legal Aid Society to request legal assistance. In response, plaintiffs Olivia Cassin and Bryan Lonegan went to MDC to meet with the Detainee. Subsequently, the Legal Aid Society received requests for legal assistance from other Detainees. Between October 23, 2001 and December 31, 2001, plaintiffs conducted approximately 30 meetings with various Detainees at MDC. The purpose of the meetings was to provide the Detainees with legal advice and, in some instances, to assist them in securing representation from other attorneys. Nearly all of the meetings took place in the Visiting Area.
A regulation promulgated by the United States Department of Justice ("DOJ"), codified at 28 C.F.R. § 543.13(e), which was in effect during the time period at issue and remains in effect at present, prohibits auditory monitoring of attorney-client meetings at federal prisons. On October 31, 2001, the Attorney General issued a directive, codified at 28 C.F.R. § 501.3(d), authorizing auditory monitoring of such meetings under limited circumstances, which include that the monitoring be approved by the Attorney General based on reasonable suspicion that a particular inmate may use communications with attorneys to facilitate acts of terrorism and that prior notice be given to both the inmate and the inmate's attorney.
Plaintiffs allege that they had an expectation of privacy when meeting with Detainees. Some plaintiffs observed videocameras positioned near the Visiting Area and asked MDC officers whether the cameras were on. They were told that the cameras were not on. Subsequent to the issuance of the Attorney General's directive, plaintiffs asked MDC officers whether their meetings with Detainees were being recorded pursuant to its terms. They were told that the meetings were not being recorded.
In March 2003, the Office of the Inspector General ("OIG") of the DOJ began a comprehensive administrative investigation into alleged abuse of Detainees by MDC officers.*fn2 The results of this investigation were published in a December 2003 report entitled "Supplemental Report on September 11 Detainees' Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York" (the "OIG Report"), which is annexed to plaintiffs' complaint as Exhibit 1 and incorporated therein by reference.*fn3 Hasty, who retired in April 2002, did not participate in the investigation, but his successor, Michael Zenk, did. The information that Warden Zenk provided to OIG investigators concerning events during Hasty's tenure was based on briefings by staff members.
The investigation uncovered evidence of physical and verbal abuse of Detainees by MDC officers. In addition, the investigation revealed efforts by MDC officers to interfere with Detainees' access to legal counsel. Detainees were denied regular access to the telephone for the purpose of making legal phone calls. OIG Report at 42. And, their meetings with attorneys were routinely recorded. OIG Report at 31-33, 44.
In connection with its investigation, OIG requested that MDC produce all videotapes of Detainees. MDC officers resisted this request, stated that many such tapes had been destroyed in the normal course of business, and delayed in producing the tapes that were not alleged to have been destroyed. OIG Report at 39-42. On August 20, 2003, investigators visiting MDC discovered in a storage room 308 videotapes, the existence of which had not been made known to OIG. With respect to these tapes, the OIG Report states: "We took the 308 newly discovered videotapes to review. These 308 tapes provided much of the evidence discussed in this report corroborating many of the [D]etainees' allegations. Many of the tapes contradicted statements of MDC staff members about the treatment of the [D]etainees." OIG Report at 41 (footnote omitted). The OIG Report goes on to note that "even with these newly discovered tapes, significant gaps existed in the MDC's production of videotapes. For example,. . . . many tapes start or stop in the middle of [D]etainees' escorts. There are also no tapes from some 'use of force' incidents [i.e., incidents in which Detainees alleged improper use of force by MDC personnel]." OIG Report at 41. Viewing the videotapes led OIG investigators to conclude that many MDC officers "lacked credibility." OIG Report at 42. The videotapes revealed that "some staff members engaged in the very conduct they specifically denied in their interviews," which caused investigators "to question the credibility of these staff members and their denials in other areas for which we did not have videotape evidence." OIG Report at 42.
The videotapes showed that during the period from October 2001 to February 2002, meetings between Detainees and their attorneys were routinely recorded by videocameras that captured both sound and visual images. In relevant part, the OIG Report states:
We found that MDC staff members not only videotaped the [D]etainees' movements when taken from their cells to visit with their attorneys, they also recorded [D]etainees' visits with their attorneys using videocameras set up on tripods outside the attorney visiting rooms. In total, we found more than 40 examples of staff videotaping [D]etainees' attorney visits. On many videotapes, we were able to hear significant portions of what the [D]etainees were telling their attorneys and sometimes what the attorneys were saying as well.
It appeared that [D]etainees' attorney visits were recorded intentionally. On one occasion, an officer instructed the [D]etainee not to speak in Arabic with his attorney because the meeting was being videotaped. In another videotape, a lieutenant told the [D]etainee and his attorney that he had been instructed that they were required to speak in English during the visit. We also observed on several occasions that officers lingered outside the attorney visiting rooms and appeared to be listening to the conversations.
When interviewed prior to the OIG obtaining all of the videotapes, MDC Warden Michael Zenk told the OIG that, initially, attorney visits were video and audio taped, but in November 2001, after one of the attorneys complained, the video camera was moved far enough away that the audio of the visits was not recorded. However, as late as February 2002, conversations between [D]etainees and their attorneys are still audible on many of the tapes. When confronted with this information, Warden Zenk stated that the visits should not have been audio taped. He also said his staff thought moving the camera away from the attorney visiting rooms ensured that the visits would not be audio taped.
Recording the [D]etainees' attorney visits also was not necessary for the MDC's security purposes. The attorney visits took place in non-contact rooms separated by thick glass, and the MDC required the [D]etainees to be restrained in handcuffs, leg restraints, and waist chains during the visits. The [D]etainees also were pat searched or strip searched after these meetings.
OIG Report at 31-32 (footnotes omitted). The OIG Report indicates that neither the October 9, 2001 memorandum instructing wardens to videotape the Detainees' movements nor any subsequent memorandum from the BOP authorized the recording of verbal communications between attorneys and Detainees. OIG Report at 39. On the contrary, a memorandum dated December 18, 2001 from the BOP Northeast Regional Director noted that audiotaping meetings between Detainees and attorneys was prohibited. OIG Report at 32. The OIG Report also notes that the BOP's Office of General Counsel told investigators that officers at MDC had not been authorized by the Attorney General, pursuant to the October 31, 2001 directive, to monitor meetings between Detainees and their attorneys. OIG Report at 32.
A complaint may not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A complaint is deemed to include any written instrument attached to it as an exhibit and any documents incorporated in it by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). In deciding whether a complaint states a claim, the court must accept as true all factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiff. Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002).
The court may not use a pleading standard that exceeds the pleading requirements set forth in the Federal Rules of Civil Procedure to evaluate the sufficiency of a complaint on a motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-14 (2002). Rule 8(a)(2) provides that a complaint need include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Such a statement must simply "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512 (quoting Conley, 355 U.S. at 47). This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. Id. Other provisions of the Federal Rules of Civil Procedure are inextricably linked to Rule 8(a)'s simplified notice pleading standard. For example, Rule 8(e)(1) states that "[n]o technical forms of pleading or motions are required," and Rule 8(f) provides that "[a]ll pleadings shall be so construed as to do substantial justice." Fed. R. Civ. P. 8(e)(1), (f); Id. at 513-14. Given the Federal Rules' simplified standard for pleading, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz, 534 U.S. at 514 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
II. General Principles of Qualified Immunity
Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The standard for evaluating a defendant's entitlement to qualified immunity is thus an objective one, focusing on what a reasonable official in the defendant's position would have thought under the circumstances, not what the particular defendant asserting the defense actually thought. See id.
Although immunity issues should be resolved at the earliest possible stage in the litigation, a defendant asserting a qualified immunity defense "on a Rule 12(b)(6) motion instead of a motion for summary judgment must accept the more stringent standard applicable to this procedural route." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). Not only must the facts supporting the defense appear on the face of the complaint, but, as with all Rule 12(b)(6) motions, the motion may be granted only where it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claims that would entitle them to relief. Id. Thus, the plaintiffs are entitled to all reasonable inferences from the facts alleged, not only those that support their claims, but also those that defeat the immunity defense. Id.
A claim of qualified immunity requires a two step inquiry. First, the court must determine whether the facts alleged show that the defendant's conduct violated a statutory or constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, the second step is for the court to ask whether the right was clearly established at the time that the violation occurred. See id. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Id. Nevertheless, an officer is not entitled to qualified immunity simply because he or she confronted a novel factual situation; if, in the light of pre-existing law, the unlawfulness of the officer's actions would have been apparent, then the qualified immunity defense must fail. Hope v. Pelzer, 536 U.S. 730, 739 (2002). The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would have been clear to a reasonable officer that his or her conduct was unlawful in the situation that the officer confronted. Saucier, 533 U.S. at 202.
In assessing a qualified immunity defense, courts must consider in particular: (1) whether the right in question was defined with reasonable specificity; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether, under pre-existing law, a reasonable defendant official would have understood that his or her acts were unlawful. Pena v. Deprisco, 432 F.3d 98, 115 (2d Cir. 2005).
Congress enacted the Wiretap Act, in large part, to create procedures for electronic surveillance by government officers that comply with the requirements of the Fourth Amendment as articulated by the Supreme Court. See United States v. United States District Court, 407 U.S. 297, 302 (1972) [hereinafter Keith] ("Much of Title III was drawn to meet the constitutional ...