FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAN STEIN, AKA Allen Stein,
Plaintiff-Appellant,
v.
CHARLES RYAN, Director of No. 10-16527
Arizona Department of
D.C. No.
Corrections; MAGGIE URENA,
Arizona Time Computation Unit 2:09-cv-01505-
Supervisor; STATE OF ARIZONA; MHM
DORA SCHIRO; JANE DOE RYAN; OPINION
JOHN DOE SCHIRO; JOHN DOE
URENA; JOHN DOES I-X; JANE DOES
I-X; XYZ ENTITIES I-V,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted
October 13, 2011—San Francisco, California
Filed November 18, 2011
Before: J. Clifford Wallace and Sidney R. Thomas,
Circuit Judges, and Lloyd D. George,
Senior District Judge.*
Opinion by Judge Wallace
*The Honorable Lloyd D. George, Senior District Judge for the U.S.
District Court for Nevada, sitting by designation.
20235
20238 STEIN v. RYAN
COUNSEL
Daniel Christopher Gregory, Esq., Gregory Law Firm, PC,
Surprise, Arizona; Thomas Norman O’Leary (argued), Phoe-
nix, Arizona, for the plaintiff-appellant.
Daniel Patrick Schaack, Esq., Assistant Attorney General,
Arizona Attorney General’s Office, Phoenix, Arizona, for the
defendants-appellees.
OPINION
WALLACE, Senior Circuit Judge:
Alan Stein appeals from the judgment of the district court
dismissing his action against the State of Arizona and individ-
ual officials employed by the Arizona Department of Correc-
tions (Department) for alleged negligence and alleged
violations of his civil rights. The district court held that Stein
failed to state a claim for which relief can be granted. We
have jurisdiction to review the district court’s judgment under
28 U.S.C. § 1291. We affirm.
I.
On August 1, 1997, Stein pleaded guilty in the Arizona
Superior Court to a felony charge of attempted sexual contact
STEIN v. RYAN 20239
with a minor. His offense occurred between October 15, 1995
and October 26, 1996. The judge suspended sentence, placed
Stein on lifetime probation, and ordered that he spend one
year in jail. Stein did not appeal his conviction or sentence.
On February 9, 2006, Stein appeared in Arizona Superior
Court to respond to a charge that he had violated the terms of
his probation. The court revoked Stein’s probation and sen-
tenced him to ten years in prison. Stein did not appeal his sen-
tence. However, he later filed a petition for post-conviction
relief.
On November 3, 2008, while Stein’s petition for post-
conviction relief was pending, the Arizona Supreme Court
issued State v. Peek, holding that the statutes in effect
between 1994 and 1997 authorized lifetime probation for cer-
tain completed offenses against children, but did not authorize
lifetime probation for attempted child molestation. 195 P.3d
641, 643 (Ariz. 2008). The parties agree that under Peek, the
maximum probationary period authorized for Stein’s 1997
conviction was five years. Thus, when Stein was sentenced in
February 2006, he had already been on probation longer than
authorized by statute. On February 23, 2009, the superior
court vacated Stein’s sentence, discharged him from proba-
tion, and ordered him released. In sum, Stein spent just over
three years in prison pursuant to an erroneous sentence.
Stein filed a complaint in Arizona Superior Court request-
ing the State of Arizona and certain individuals employed by
the Department to pay damages for the time he spent in prison
pursuant to an illegal sentence. The defendants removed the
action to the district court and moved to dismiss the case
under Federal Rule of Civil Procedure 12(b)(6). Stein filed an
amended complaint which prompted the defendants to again
move for dismissal. The district court dismissed all of Stein’s
claims with prejudice. It also held that Stein had failed to state
a claim of negligence against the State of Arizona because,
while the Department had a duty to ensure that his prison sen-
20240 STEIN v. RYAN
tence was calculated correctly, it had no duty to review the
legality of his sentencing order. It held that Stein had not
alleged facts to support a claim for infliction of emotional dis-
tress. With respect to Stein’s claim against the individual
defendants brought under 42 U.S.C. § 1983, the district court
concluded that they were protected by qualified immunity.
The district court also held in the alternative that Stein had
failed to allege that they were liable based on their own
actions.
Stein does not appeal from the dismissal of his claim for
infliction of emotional distress. Rather, he argues that the dis-
trict court erred in dismissing his claims for negligence and
violation of his constitutional rights. We review the dismissal
of Stein’s claims de novo. Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009).
II.
[1] In order to recover on his state law negligence theory,
Stein needed to prove four elements: “(1) a duty requiring the
defendant to conform to a certain standard of care; (2) a
breach by the defendant of that standard; (3) a causal connec-
tion between the defendant’s conduct and the resulting injury;
and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230
(Ariz. 2007). Stein’s theory was that, upon receiving him into
custody, the Department had a duty to identify the statute
under which Stein had been sentenced and compare it to the
sentencing order to ensure that his sentence was legal. Stein
alleged that the Department failed to make this inquiry, caus-
ing him to spend three years in prison pursuant to an illegal
sentence.
The district court rejected Stein’s contention that the
Department has a duty to review the legality of sentencing
orders. Under Arizona law, the authority to control a sentence
is distributed “so that the court, the department of corrections
and the parole board each serves its purpose, and within its
STEIN v. RYAN 20241
specified sphere of competence, individualizes the sentence.”
State v. Harris, 648 P.2d 145, 146 (Ariz. Ct. App. 1982).
Courts impose the sentence, and the parole board or the
Department (as the case may be) determine whether or not a
prisoner is eligible for release. Id. While the Department must
determine whether a prisoner is eligible for release pursuant
to the terms of a sentencing order, that does not mean that it
must review the legality of the prisoner’s sentencing order.
Just as a court has no authority to order the Department to
release a prisoner prior to the expiration of the sentence, “but
could only sentence him to a definite term of years in prison,”
id., the Department has no authority to refuse to enforce a
sentence issued by a competent court. The review of sentenc-
ing orders is a judicial function, and the Arizona Constitution
gives the authority to perform judicial functions exclusively
to Arizona’s judicial department. Ariz. Const. art. 3.
[2] Stein’s theory is that the Department had a duty to dis-
cover that the superior court imposed an illegal sentence and
that the Department’s failure caused him damage. We do not
believe that the Arizona Supreme Court would hold that the
Department—an agency within Arizona’s executive
department—has the authority, much less the duty, to ensure
that judicial orders comply with the law. The district court
properly dismissed Stein’s negligence claim.
III.
Stein also sought recovery under 42 U.S.C. § 1983 for
alleged violations of his Eighth Amendment right to be free
from cruel and unusual punishment and his Fourteenth
Amendment right to due process. Stein’s theory is that the
defendants subjected him to cruel and unusual punishment
and deprived him of liberty without due process by imprison-
ing him pursuant to an illegal sentencing order. According to
Stein, if the defendants had properly calculated his sentence,
they would have been obliged to release him immediately
rather than hold him for three years.
20242 STEIN v. RYAN
Under certain circumstances, wrongful imprisonment may
support a claim under 42 U.S.C. § 1983. An action under sec-
tion 1983 has two essential elements: “(1) the defendants
acted under color of law, and (2) their conduct deprived [the
plaintiff] of a constitutional right.” Haygood v. Younger, 769
F.2d 1350, 1354 (9th Cir. 1985). Obviously, officers of a
state’s department of corrections who imprison a person in the
state’s prison do so under color of law. Such imprisonment
violates the prisoner’s rights under the Fourteenth Amend-
ment if the prisoner does not first receive due process of law.
Since imprisonment is punitive, officials who detain a person
may violate that person’s rights under the Eighth Amendment
if they act with deliberate indifference to the prisoner’s liberty
interest. Id.
The district court held that the individual defendants were
entitled to qualified immunity and, in the alternative, that
Stein failed to state a claim because he did not allege any per-
sonal involvement by the individual defendants. Because we
hold that the district court properly concluded that the defen-
dants enjoy qualified immunity, we need not decide whether
the claim was properly dismissed for failure to allege that the
defendants were liable based on their own actions.
[3] A public official is immune from an action under 42
U.S.C. § 1983 “[u]nless the plaintiff ’s allegations state a
claim of violation of clearly established law.” Mitchell v. For-
syth, 472 U.S. 511, 526 (1985); see also Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (qualified immunity applies if offi-
cial’s conduct “does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known”). In order to determine whether the defendants
are immune from an action, the court must answer two ques-
tions: (1) whether Stein alleged the violation of a constitu-
tional right, and (2) whether that right was clearly established.
Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (leaving
the courts to decide, in their sound discretion, which question
to answer first). A right is “clearly established” if its contours
STEIN v. RYAN 20243
are “sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). Also, the right must be
defined “at the appropriate level of specificity.” Cousins, 568
F.3d at 1070, quoting Wilson v. Layne, 526 U.S. 603, 615
(1999).
Defining his claims at the appropriate level of specificity,
Stein asserts a constitutional right not to be incarcerated pur-
suant to a sentencing order if that order is later determined to
be invalid. It is undisputed that, in light of Peek, Stein’s sen-
tencing order was invalid. However, we hold that he did not
have a constitutional right to be released prior to the time his
sentence was vacated.
[4] Stein did not allege a violation of his rights under the
Fourteenth Amendment. The Constitution permits states to
deprive a person of liberty as long as the person first receives
due process. See Haygood, 769 F.2d at 1357 (“Process which
precedes a loss of liberty obviously prevents a constitutional
violation”). “The fundamental requirement of due process is
the opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319,
333 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965).
[5] Stein had an opportunity to be heard before he was
convicted and placed on probation. He also could have
appealed the order that erroneously set the term of his proba-
tion for the rest of his life. He had another opportunity to be
heard before the court sentenced him to ten years imprison-
ment. He then could have appealed that order. He was
afforded the opportunity to seek post-conviction relief and
ultimately secured his release. Stein did not allege that he was
ever denied an opportunity to be heard at a meaningful time
and in a meaningful manner. Under Mathews, he received all
the process that was due to him.
20244 STEIN v. RYAN
[6] Stein argues, however, that the process he received was
not enough. He contends that the defendants—members of the
executive branch—should have reviewed his sentence sua
sponte and concluded that his detention was illegal. Stein
offers no authority requiring prison officials to review sen-
tencing orders independently to make sure the court got it
right. Prison officials may properly assume that they have the
authority to execute the sentencing orders delivered to them
by the court without fear of civil liability. Thus, Stein did not
allege any violation by the defendants of his rights under the
Fourteenth Amendment.
[7] Stein’s Eighth Amendment claim fares no better. His
allegation that prison officials should have discovered that his
sentence was illegal does not establish that they acted with
deliberate indifference to his liberty interest. Prison officials
have the duty to execute the sentencing orders delivered by
the courts. They may have a duty to calculate accurately the
prisoner’s release date according to the terms of a sentencing
order, but no reasonable prison official would understand that
executing a court order without investigating its potential ille-
gality would violate the prisoner’s right to be free from cruel
and unusual punishment.
The district court reasoned that “an official would not have
known that a term of lifetime probation for the crime of
attempted sexual assault with a minor was unlawful as there
was no clearly established law so holding until Peek.” Stein
v. State of Arizona, No. CV 09-1505-PHX-MHM, 2010 WL
2541136, at *6 (D. Ariz. June 18, 2010). This reasoning does
not mean that defendants may have violated Stein’s rights by
detaining him for the nearly four months between the time the
Arizona Supreme Court issued Peek and the time Stein’s sen-
tence was vacated.
[8] Peek made clear that Stein was entitled to have his sen-
tence vacated as a matter of Arizona law. However, prison
officials have a duty to enforce a sentencing order until the
STEIN v. RYAN 20245
order is vacated or the prisoner otherwise becomes eligible for
release. To say that defendants should have released Stein as
soon as the Arizona Supreme Court decided Peek (or at any
time prior to the court’s order vacating sentence) would be to
impose on them the judicial responsibility of reviewing the
legality of a sentencing order. In other words, Peek may have
given Stein the right to have his sentence vacated, but it was
the vacatur of his sentence by the court hearing his case that
gave him the right to be released. Even if Peek made it clear
that Stein’s sentence was erroneous, defendants did not vio-
late his constitutional rights by holding him in prison while
the sentencing order remained in force. Because Stein did not
allege a violation of his Eighth or Fourteenth Amendment
rights by defendants, they are immune from an action.
IV.
Stein failed to state a claim upon which relief can be
granted. The district court, therefore, properly dismissed the
action. The judgment of the district court is AFFIRMED.