637 F. App'x 285
9th Cir.2015Background
- Plaintiff John Witherow, an inmate, sued NDOC and three private telecommunications companies under 42 U.S.C. § 1983 and the Wiretap Act, alleging screening/monitoring of his attorney-client phone calls.
- District court dismissed claims against the private telecoms, denied leave to amend, granted summary judgment for defendants, excluded parts of a witness’s testimony, and issued jury instructions adverse to Witherow.
- Witherow appealed dismissal of private-party claims, denial of leave to amend, summary judgment, exclusion of testimony, and jury instructions.
- NDOC admitted to an institutional practice of initially screening and occasionally checking in on inmates’ attorney-client calls pursuant to institutional procedure/post orders.
- The Ninth Circuit affirmed dismissal of several claims but reversed summary judgment on Fourth Amendment and certain supervisory (failure-to-intervene) claims and remanded for further fact-finding on penological reasonableness and supervisory liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Liability of private telecom companies under § 1983 | Telecoms were functionally involved in interception; liable under § 1983 and Wiretap Act | Telecoms are private actors not acting under color of state law; Wiretap Act not violated absent intentional interception or conduct outside ordinary business | Dismissed: Telecoms not state actors; § 1983 and Wiretap Act claims fail |
| 2. Denial of leave to amend complaint | Proposed amendment could cure defects and state claims | Amendment would be futile because core defects (no state action; Wiretap Act pleading problems) remain | Affirmed: Denial not an abuse of discretion; amendment would be futile |
| 3. Application of Wiretap Act law-enforcement exception | Screening attorney-client calls violated the Wiretap Act | NDOC officers acted in ordinary course of law-enforcement duties; institutional rules authorize screening | Affirmed: Screening falls within law-enforcement exception to Wiretap Act |
| 4. Fourteenth Amendment (substantive & procedural due process) | Inmate has due process right to confidential attorney calls; grievance procedures inadequate | No separate substantive due process right beyond Fourth Amendment; Sandin bars procedural claim | Affirmed: Fourteenth Amendment claims dismissed |
| 5. Exclusion of portions of Evans’s testimony at trial | Exclusion prejudiced Witherow’s case | Exclusion was discretionary and other witnesses covered same topics | Affirmed (harmless): Error, if any, was harmless due to alternative testimony |
| 6. Jury instructions on Wiretap Act and exception | Instructions misapplied law and burden | Instructions properly reflected law-enforcement exception and court’s legal rulings | Affirmed: Jury instructions were not erroneous |
| 7. Fourth Amendment implication of screening/monitoring | NDOC’s practice violated Witherow’s Fourth Amendment right to confidential attorney calls | NDOC argued inmate awareness/notice and institutional rules negated a protected expectation | Reversed in part: Fourth Amendment implicated despite notice; remanded to assess whether practice is reasonably related to penological interests under Turner |
| 8. Supervisory liability for grievance process failures | Higher-level officials’ denial of grievance made them liable | Denial of grievance alone does not state a § 1983 claim absent notice and causal connection | Reversed/Remanded in part: If district court finds officer Fourth Amendment violation, reconsider supervisory liability for failure to intervene |
Key Cases Cited
- Kirtley v. Rainey, 326 F.3d 1088 (9th Cir. 2003) (state-action analysis for private parties under § 1983)
- Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522 (9th Cir. 2008) (leave to amend standard; futility)
- Smith v. Maryland, 442 U.S. 735 (1979) (subjective expectation vs. normative inquiry in Fourth Amendment analysis)
- United States v. Scott, 450 F.3d 863 (9th Cir. 2005) (conditioning of subjective expectations in prison context)
- Turner v. Safley, 482 U.S. 78 (1987) (reasonableness test for prisoner regulations; penological interests)
- Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) (consideration of alternatives in Turner analysis)
- Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003) (grievance denial alone not a constitutional violation)
- Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013) (supervisory liability and notice/failure-to-intervene analysis)