NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DONALD YORK EVANS, No. 13-17361
Plaintiff, D.C. No. 3:08-cv-00353-RCJ-VPC
And
MEMORANDUM*
JOHN WITHEROW,
Plaintiff - Appellant,
v.
HOWARD SKOLNIK; DON HELLING;
WILLIAM DONAT; BRIAN HENLEY;
LEA BAKER; I. CONNALLY; INMATE
CALLING SOLUTIONS; EMBARQ;
GLOBAL TEL LINK,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted December 8, 2015
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW, W. FLETCHER, and MURGUIA, Circuit Judges.
Plaintiff John Witherow appeals the dismissal of his claims under Federal
Rule of Civil Procedure 12(b)(6), the district court’s grant of summary judgment in
favor of the defendants, the district court’s decision to exclude certain testimony at
trial, and the district court’s jury instructions. We affirm on most grounds, but
reverse the district court’s grant of summary judgment on Witherow’s Fourth
Amendment and supervisory claims and remand for further proceedings.
1. The district court did not err in dismissing Witherow’s claims against
the three private telecommunications companies. The three companies were not
state actors, and thus Witherow did not state a cognizable § 1983 claim against
them. See Kirtley v. Rainey, 326 F.3d 1088, 1092–96 (9th Cir. 2003). He also did
not state a Wiretap Act claim against the three companies because he did not allege
intentional interception or that the companies were operating outside the ordinary
course of their businesses. See 18 U.S.C. §§ 2510(5)(a), 2511(1)(a), 2520.
2. The district court did not abuse its discretion in denying Witherow
leave to amend his complaint against the three private telecommunications
companies. A district court does not abuse its discretion in denying leaving to
amend when “amendment would be futile.” Leadsinger, Inc. v. BMG Music
Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). Because the three companies were not
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state actors, Witherow could not state a § 1983 claim against them. Additionally,
Witherow’s proffered third amended complaint did not cure the deficiencies of his
second amended complaint, showing that amendment of his Wiretap Act claim
would also have been futile.
3. The district court did not err in concluding that the Nevada
Department of Corrections’ (“NDOC”) practice of initially screening and
occasionally checking in on inmates’ attorney-client phone conversations fell
within the law enforcement exception to the Wiretap Act. The state laws and
regulations cited by Witherow do not clearly prohibit the NDOC’s practice in Unit
13, and the Institutional Procedure and Post Order provided by the government
authorize it. Thus, the correctional officers were acting “in the ordinary course of
[their] duties” when they screened Witherow’s attorney-client calls. 18 U.S.C.
§ 2510(5)(a).
4. The district court did not err in dismissing Witherow’s Fourteenth
Amendment claims. Witherow has failed to provide sufficient evidence that he has
a substantive due process right to private attorney-client calls separate from his
Fourth Amendment claim. Additionally, the district court properly rejected
Witherow’s procedural due process claim under Sandin v. Conner, 515 U.S. 472
(1995).
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5. Any error in the district court’s decision to exclude certain aspects of
Evans’ testimony at Witherow’s trial was harmless. See Harper v. City of Los
Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008). Witherow was able to provide the
testimony of two other witnesses — his own and that of Evans’ legal secretary —
on the same issues about which Evans would have testified.
6. The district court’s jury instructions were not in error. As explained
above, the district court did not err in its interpretation of the Wiretap Act and the
application of the law enforcement exception.
7. The district court erred in concluding that Witherow’s Fourth
Amendment rights were not implicated by the NDOC’s practice of screening and
monitoring inmates’ attorney-client calls. Contrary to the district court’s
conclusion, the fact that Witherow was subjectively “aware” that the NDOC was
screening his calls does not defeat his Fourth Amendment claim. This is a case in
which the “normative inquiry” — not the subjective expectation of privacy —
governs the extent of the Fourth Amendment’s protection. See Smith v. Maryland,
442 U.S. 735, 740 n.5 (1979); United States v. Scott, 450 F.3d 863, 867 (9th Cir.
2005) (citation omitted). Nevada cannot defeat an inmate’s constitutional right to
confidential attorney-client communications simply by informing him that his
communications will no longer be confidential. See Scott, 450 F.3d at 867
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(“[W]here an individual’s subjective expectations had been conditioned by
influences alien to well-recognized Fourth Amendment freedoms, those subjective
expectations obviously could play no meaningful role in ascertaining what the
scope of Fourth Amendment protection was.”) (quoting Smith, 442 U.S. at 740
n.5).
Because this is a prisoners’ rights case, the fact that the NDOC’s practice
implicated the Fourth Amendment does not mean that Witherow’s constitutional
rights were necessarily violated. See Hrdlicka v. Reniff, 631 F.3d 1044, 1048 (9th
Cir. 2011) (outlining the “two-step analysis” for prisoner constitutional claims).
Rather, Witherow’s Fourth Amendment rights were violated only if the NDOC’s
practice of initially screening and occasionally “checking in” on his legal calls was
not “reasonably related to legitimate penological interests.” Turner v. Safley, 482
U.S. 78, 89 (1987); see also Hrdlicka, 631 F.3d at 1049. We remand for the
district court to address this question in the first instance, giving particular
attention to whether there are “alternative prison policies that could satisfy [the
NDOC’s] objective[s]” in screening the calls. See Demery v. Arpaio, 378 F.3d
1020, 1028 n.2 (9th Cir. 2004).
8. The district court may have erred in dismissing Witherow’s claim
alleging that certain higher-level NDOC officials were liable for “their conduct in
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the grievance process.” An allegation that a prison official inappropriately denied
or failed to adequately respond to a grievance, without more, does not state a claim
under § 1983. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing
Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Although the denial of
Witherow’s grievance was not itself a constitutional violation, the grievance may
have put the supervisory officials on notice that officers were violating the Fourth
Amendment. On remand, if the district court determines that officers violated
Witherow’s Fourth Amendment rights, the court should also consider whether the
supervisory officials are liable for their failure to intervene. See Maxwell v. County
of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013).
AFFIRMED in part, REVERSED in part, and REMANDED.
Each side is to bear its own costs.
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