John Witherow v. Lea Baker, 997 F.3d 1060

Plaintiff John Witherow was an NDOC inmate in Unit 13 (disciplinary segregation) who used a single portable in-cell phone to place "legal" calls to his civil‑litigation attorney; the portable phones lacked caller ID.
Correctional officer Lea Baker followed NDOC procedure: she listened briefly via control‑center speakers to confirm the recipient was a legal representative, then turned the speaker off; she periodically "checked in" later to confirm the call remained legal.
Witherow sued under 42 U.S.C. § 1983 alleging the monitoring of his attorney calls violated his Fourth Amendment privacy rights; earlier appeals remanded the case for evaluation under Turner v. Safley.
On remand the district court granted Baker summary judgment based on qualified immunity; the Ninth Circuit panel affirmed, concluding no Fourth Amendment right was clearly established at the time of Baker’s conduct.
The majority declined to reach the merits (whether the monitoring was unconstitutional), resolving the case on the clearly‑established prong; a concurring/dissenting judge argued the monitoring did violate the Fourth Amendment and that the court should decide the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Baker’s initial screening and intermittent "check‑ins" of calls to Witherow’s civil attorney violated the Fourth Amendment	Witherow: monitoring listened to the substance of attorney‑client calls and thus implicated a reasonable expectation of privacy in confidential legal communications	Baker: she only identified the recipient and intermittently confirmed continued legal character; inmates knew calls were screened and Van Poyck limits protection for outbound inmate calls	Court: declined to resolve the merits on this record (did not hold a Fourth Amendment violation)
Whether any Fourth Amendment right was "clearly established" at the time (qualified immunity)	Witherow: existing doctrines protecting attorney‑client confidentiality and cases recognizing special privacy for legal communications support that a reasonable officer should have known the monitoring was unlawful	Baker: no Supreme Court or controlling Ninth Circuit precedent put this precise conduct "beyond debate"; comparable precedents are distinguishable or post‑date the conduct	Court: no clearly established right; Baker entitled to qualified immunity

Pearson v. Callahan, 555 U.S. 223 (2009) (courts have discretion to decide qualified immunity prongs in either order)
Saucier v. Katz, 533 U.S. 194 (2001) (original two‑step qualified immunity framework)
Ashcroft v. al‑Kidd, 563 U.S. 731 (2011) (clearly established law must place question beyond debate)
Turner v. Safley, 482 U.S. 78 (1987) (prison regulations valid if reasonably related to legitimate penological interests)
Nordstrom v. Ryan, 762 F.3d 903 (9th Cir. 2014) (prison officials may not read outgoing attorney‑client communications)
Nordstrom v. Ryan, 856 F.3d 1265 (9th Cir. 2017) (policy requiring page‑by‑page review of legal mail unconstitutional)
United States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996) (no reasonable expectation of privacy in outbound inmate personal calls; distinction noted for properly placed attorney calls)
Plumhoff v. Rickard, 572 U.S. 765 (2014) (illustrates when addressing the constitutional question first may be beneficial)
Brosseau v. Haugen, 543 U.S. 194 (2004) (clearly established inquiry excludes later cases)