Miller v. Schmidt et al

Filing 82

ORDER Granting in Part Docket 67 Motion for Summary Judgment, (CC: DQA) (Jan, Chambers Staff)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RICHARD I. MILLER,
Plaintiff,
vs.
Commissioner RONALD TAYLOR,
Director GARLAND ARMSTRONG
(ret.), Superintendent ROBERT
HIBPSHMAN, Asst. Superintendent
SHANNON MCCLOUD, & Security
Sgt. DAVID CLEVELAND, individually
and in their capacities as employees
of the Department of Corrections

Case No. 3:14-cv-61 RRB

Defendants.
ORDER GRANTING SUMMARY JUDGMENT IN PART
Richard Miller, representing himself, has filed a Prisoner’s Civil Rights
Complaint under 42 U.S.C. § 1983. Docket 1-1. This matter was removed from
the Alaska Superior Court in Kenai. Docket 1. The Assistant Attorney General,
representing all Defendants, has filed an Answer and a Motion for Summary
Judgment. Docket nos. 15 & 67. The Court has reviewed the Motion, as well as
Miller’s response and the Defendants’ Reply. Docket nos. 80 & 81.
A.

Facts
The facts in this matter are generally undisputed. Defendant was an inmate

at Wildwood Pre-trial Facility in Kenai, Alaska, in early April 2008. Miller contends
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that his constitutional rights were violated when his phone calls with his attorney
were recorded by Sergeant David Cleveland pursuant to Cleveland’s duties as a
Correctional Officer. While notice was provided and Department policy required
monitoring inmate phone calls, it is undisputed that attorney phone calls should not
have been monitored or recorded. Nevertheless, several phone calls between
Miller and his attorney were recorded. Docket 67 at 3-5. Sergeant Cleveland states
that, once informed of the mistake, he took steps to block recording of future calls
from the attorney’s phone number. Id. at 5. There is no allegation, however, that
the attorney-client phone calls which were recorded played any role in Plaintiff’s
ultimate conviction for child pornography and evidence tampering, and it is unclear
what damages, if any, Plaintiff suffered as a result of the recordings. Miller brings
a number of constitutional and state claims against State Department of
Corrections employees, and requests declaratory relief and compensatory and
punitive damages. Docket 1-1 at 10-15.
B.

Standard of Review
Summary judgment is appropriate when the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if any,
show there is no genuine issue as to any material fact and that the moving party

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is entitled to judgment as a matter of law. 1 The moving party bears the initial burden
of proof for showing that no fact is in dispute. 2 If the moving party meets that
burden, then it falls upon the non-moving party to refute with facts that would
indicate a genuine issue of fact for trial. 3 Summary judgment is appropriate if the
facts and allegations presented by a party are merely colorable, or are not
significantly probative. 4 The Court is mindful that it must liberally construe a selfrepresented plaintiff’s pleadings and give the plaintiff the benefit of the doubt. 5
C.

Lack of Personal Participation
As a preliminary matter, Plaintiff does not allege personal participation by

Hibpshman, McCloud or the Commissioner. None of these defendants were
involved in the recording of Miller’s phone calls.

1 Fed.

R. Civ. P. 56(c).

2 Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986).

3 Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

4

Id., See also, In re Lewis, 97 F.3d 1182, 1187 (9th Cir. 1996); Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1995).
5

See Hebbe v. Plier, 627 F.3d 338, 342 (9th Cir. 2010) (“[O]ur ‘obligation’ remains [after
Ashcroft v. Iqbal, 556 U.S. 662 (2009)], ‘where the petitioner is pro se, particularly in civil
rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of
any doubt.’”) (citation omitted); Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013)
(“This rule relieves pro se litigants from the strict application of procedural rules and
demands that courts not hold missing or inaccurate legal terminology or muddled
draftsmanship against them.”) (citations omitted).

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Liability under section 1983 arises only upon a showing of personal
participation by the defendant. Fayle v. Stapley, 607 F.2d 858, 862
(9th Cir.1979). A supervisor is only liable for constitutional violations
of his subordinates if the supervisor participated in or directed the
violations, or knew of the violations and failed to act to prevent them.
There is no respondeat superior liability under section 1983. Ybarra
v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680–81 (9th
Cir.1984). 6
The lack of allegation of facts which show personal participation in an alleged civil
rights violation warrants dismissal of Hibpshman, McCloud and Taylor.
Accordingly, Sgt. Cleveland is the only remaining Defendant.
D.

Challenging State Court Conviction
This Court is not a court of appeals for final state court decisions. The

majority of Miller’s Opposition (Docket 80) is devoted to arguing against the validity
of his convictions for possession of child pornography and tampering with
evidence. Miller attaches a number of letters proclaiming his innocence. This Court
may not decide “cases brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” 7

6

Taylor, 880 F.2d at 1045.

7

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005); see also
Worldwide Church of God v. McNair, 805 F.2d 888, 890-91 (9th Cir. 1986) (The federal
district court “has no authority to review the final determinations of a state court in judicial
proceedings . . . even where the challenge to the state court decision involves federal
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Moreover, Heck v. Humphrey bars section 1983 claims challenging a
conviction or sentence, unless the conviction or sentence has been reversed. To
the extent Miller may be challenging the fact or duration of his confinement, he
may not do this through a civil rights action, unless and until his conviction has
been reversed. 8 In Heck v. Humphrey, the Supreme Court explained:
[A] § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of
a writ of habeas corpus. 9
The Court takes judicial notice 10 that Miller’s appeal of his conviction is currently
proceeding in the Alaska Court of Appeals. 11

constitutional issues.”) (citing, inter alia, District of Columbia Court of Appeals v. Feldman,
460 U.S. 476 (1983)).
8 512 U.S. 477, 486-87 (1994).
9

Id.

10

Judicial notice is “[a] court’s acceptance, for purposes of convenience and without
requiring a party’s proof, of a well-known and indisputable fact; the court’s power to accept
such a fact[.]” Black’s Law Dictionary (10th ed. 2014); see also Headwaters Inc. v. U.S.
Forest Service, 399 F.3d 1047, 1051 n. 3 (9th Cir. 2005) (“Materials from a proceeding in
another tribunal are appropriate for judicial notice.”) (internal quotation marks and citation
omitted).
11

See http://www.appellate.courts.state.ak.us/frames1.asp?Bookmark=A11320.

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E.

Sergeant Cleveland’s Knowledge and Intent
Several issues in this case turn on the intent and knowledge of Sgt.

Cleveland, the sole remaining Defendant. Sgt. Cleveland’s affidavit to this Court
indicates that one of his assigned duties at Wildwood was to monitor inmate phone
calls, and that he monitored Plaintiff’s phone calls when he was housed at the
facility. Docket 68 at 2. Pursuant to a search warrant, he made copies of all of
Plaintiff’s phone calls and provided them to the Kenai Police. Sgt. Cleveland states
that he later learned that one or more of the phone calls recorded had been
between Plaintiff and his attorney. Id. at 3. Sgt. Cleveland states that at the time
he made the recordings, he did not know that any of the phone calls were with
counsel, because the attorney’s phone number was not registered in the
Department of Corrections’ (DOC’s) system, which would have automatically
blocked attorney client communications from being recorded. Sgt. Cleveland
explained that the DOC phone system records all calls made or received by
inmates, except for those made or received from attorney phone numbers listed
with the Alaska Bar. Id. At Plaintiff’s trial, however, Sgt. Cleveland testified that
Kenai PD had asked the facility to monitor Plaintiff’s phone calls, and that “the first
few days I listened to every one.” Docket 80-8 at 4 (Trial transcript at 700).
Plaintiff’s exhibit at Docket 80-7 suggests that sixteen phone calls between Plaintiff
and his attorney were recorded between 4/4/2008 and 4/9/2008. Sgt. Cleveland’s
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credibility, knowledge and intent are relevant to this § 1983 action, and remain
genuine issues of material fact. 12
F.

Violations of Criminal Statutes
Generally, violation of a criminal statute does not create a private right of

action. Accordingly, Defendant argues that Counts 1, 2, and 8 must be dismissed
as Plaintiff cannot use them to serve as a basis for civil liability. The Court agrees
as to Counts 1 and 2. “Alaska's criminal statute prohibiting interference with a
constitutional right, AS 11.76.110, does not itself imply a purely private cause of
action.” 13 Accordingly, Count 1 must be dismissed. Similarly, the Ninth Circuit
has held that 18 U.S.C. §242 provides no basis for civil liability. 14 Count 2 must
therefore be dismissed. There is, however, a private right of action under 18

12

Only in “rare instances” may credibility “be determined without an evidentiary hearing.”
Earp v. Ornoski, 431 F.3d 1158, 1169-70 (9th Cir. 2005) (“Because the veracity of the
witnesses who signed the affidavits on which Earp based his claim was at issue, the claim
could not be adjudicated without an evidentiary hearing on this disputed issue of material
fact. Summary judgment is an inappropriate vehicle for resolving claims that depend on
credibility determinations.” Id. at 1170) (citations omitted); Oxborrow v. City of Coalinga,
559 F. Supp. 2d 1072, 1080 (E.D. Cal. 2008) (“[T]he court must ask whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation confronted.
Although this inquiry is primarily a legal one, where the reasonableness of the officer's
belief that his conduct was lawful ‘depends on the resolution of disputed issues of fact ...
summary judgment is not appropriate.’ Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th
Cir.2003) (citing Saucier, 533 U.S. at 216, 121 S. Ct. 2151 (Ginsburg J., concurring).)”).
13

Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009, 1015 (Alaska 1999).

14

See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

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U.S.C. § 2520 and arguably 18 U.S.C. § 2511 (Count 8). 15 Although Defendant
argues that he lacked the intent required under the Wiretap Act, the Court finds
that Sgt. Cleveland’s credibility and intent create genuine issues of material fact.
G.

Due Process
Plaintiff next argues that his right to due process was violated by recording

and distributing his confidential telephone conversations with his attorney without
first obtaining a court order. Docket 1-1 at 6-7 (Count 3). It is unclear if Plaintiff’s
argument is that Defendant interfered with his right to communicate with his
attorney, which arguably “violates the due process requirement of fundamental
fairness.” 16

But “[e]vents occurring outside of the presence of the suspect and

entirely unknown to him surely can have no bearing on the capacity to comprehend
and knowingly relinquish a constitutional right.” 17 Plaintiff suggests that he was
unaware that his phone calls with his attorney were being recorded, and therefore
there was no chilling effect on Plaintiff’s communications with his lawyer.

15

See DIRECTV, Inc. v. Pahnke, 405 F. Supp. 2d 1182, 1188 (E.D. Cal. 2005).

16

Moran v. Burbine, 475 U.S. 412, 468 (1986) (dissent).

17

Id. at 422 (majority opinion).

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Although Miller may have a due process argument in his ongoing state court
proceedings, 18 if relevant to his conviction or sentence, he has stated no claim
under federal civil law. 19
H.

Right to Privacy and Unreasonable Search and Seizure
The right to privacy (Count 5) and freedom from unreasonable search and

seizure (Count 4) associated with privileged telecommunications dates back
decades. “One who occupies [a phone booth], shuts the door behind him, and
pays the toll that permits him to place a call is surely entitled to assume that the
words he utters into the mouthpiece will not be broadcast to the world. To read the
Constitution more narrowly is to ignore the vital role that the public telephone has
come to play in private communication.” 20 While the Defendant may have defenses
associated with the automated system which recorded the calls, these counts
cannot be dismissed at this juncture.
I.

Alaska Statutes
Plaintiff alleges his rights have been violated under AS 33.30.231(c), which

states: “A telephone call between an attorney and a prisoner . . . may not be

18

See Weatherford v. Bursey, 429 U.S. 545 (1977).

19

See Heck v. Humphrey, supra.

20

Katz v. United States, 389 U.S. 347, 352 (1967).

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monitored or recorded except when authorized by a court.” (Count 6). It is
undisputed that Plaintiff’s calls with his attorney were recorded without court
authorization. Plaintiff also alleges his rights were violated under AS 42.20.300 for
unauthorized publication of the recorded phone calls. (Count 7). AS 42.20.300
provides in relevant part:
(a) Except for a party to a private conversation, a person who
receives or assists in receiving, or who transmits or assists in
transmitting, a private communication may not divulge or publish the
existence, contents, substance, purport, effect, or meaning of the
communication, except through authorized channels of transmission
or reception . . .
(5) to another on demand of lawful authority; or
(6) in response to a subpoena issued or order entered by a
court of competent jurisdiction.
(b) Except as provided in AS 12.37, a person not authorized by a
party to the communication may not intentionally intercept a private
communication or divulge or publish the existence, contents,
substance, purport, effect, or meaning of the intercepted
communication to any person.
...
(d) A person who has received a communication and who knows or
reasonably should know that the communication and the information
contained in it was obtained in violation of this section may not
divulge or publish the existence, contents, substance, purport, effect,
or meaning of the communication or any part of the communication.
Defendant argues that Prison officials had the authority to monitor phone
calls pursuant to AS 33.30.231, and “prison staff should not bear civil liability for a

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lack of clairvoyance.” Docket 67 at 12. He further argues that he provided the
Kenai Police with copies of the recorded phone calls pursuant to a search warrant,
that Miller was on notice that his calls were being recorded and could have alerted
prison staff to his attorney’s unlisted phone number, and that he lacked the intent
required by AS 42.20.300. The search warrant would excuse Defendant under
section (a), but not under sections (b) or (d) of the statute. Whether Sgt. Cleveland
had the requisite intent is, again, an issue of fact.
J.

Qualified Immunity
“[Q]ualified immunity is an affirmative defense and . . . the burden of pleading

it rests with the defendant.” 21 Deciding qualified immunity entails a two-step
analysis. Once a court determines that a constitutional violation occurred the court
must then inquire whether the right violated was “clearly established” by asking
whether a reasonable officer could believe that his actions were lawful. 22 “In the
second step, the court must ask whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation confronted. Although this inquiry is
primarily a legal one, where the reasonableness of the officer's belief that his

21

Crawford-El v. Britton, 523 U.S. 574, 587 (1998) (internal quotation and citation
omitted).
22

Oxborrow, 559 F. Supp.2d at 1080 (citing Saucier v. Katz, 533 U.S. 194, 201, (2001)).

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conduct was lawful ‘depends on the resolution of disputed issues of fact ...
summary judgment is not appropriate.’” 23
K. Conclusion
In short, five of Plaintiff’s eight claims survive. Genuine issues of material
fact regarding Sgt. Cleveland’s knowledge and intent, as well as the functionality
of the DOC recording system, bar summary judgment of Counts 4, 5, 6, 7, and 8.
As an aside, the evidence suggests that the monitoring of Plaintiff’s phone
calls ceased long before this lawsuit was filed. Therefore, the request for
declarative relief appears to be without merit. Because no evidence has been
produced, to date, suggesting that the phone calls played a role in Plaintiff’s
conviction, there appears to be little or no basis for compensatory damages.
Punitive damages may be awarded under section 1983 “either when a defendant's
conduct was driven by evil motive or intent, or when it involved a reckless or callous
indifference to the constitutional rights of others.” 24

23

Id. (citing Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003)).
24

Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005).

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IT IS THEREFORE ORDERED:
1.

The Motion for Summary Judgment at Docket 67 is GRANTED IN

PART.
2.

Counts 1, 2, and 3 are DISMISSED with prejudice.

3.

Defendants Hibpshman, McCloud and Taylor are dismissed.

IT IS SO ORDERED this 11th day of January, 2016.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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