Evans v. Skolnik

• Decision Date: 18 May 2021
• Docket Number: No. 18-17233,18-17233
• Citation: 997 F.3d 1060
• Parties: Donald York EVANS, Plaintiff, and John Witherow, Plaintiff-Appellant, v. Howard SKOLNIK; Don Helling; William Donat; Brian Henley, Defendants, Inmate Calling Solutions; Embarq; Global Tel Link, Defendants, and Lea Baker, Defendant-Appellee, I. Connally, [376] Suggestion of Death, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

997 F.3d 1060

Donald York EVANS, Plaintiff,andJohn Witherow, Plaintiff-Appellant,

v. Howard SKOLNIK; Don Helling; William Donat; Brian Henley, Defendants,Inmate Calling Solutions; Embarq; Global Tel Link, Defendants,andLea Baker, Defendant-Appellee,I. Connally, [376] Suggestion of Death, Defendant-Appellee.

No. 18-17233

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 22, 2020 San Francisco, California

Filed May 18, 2021

IKUTA, Circuit Judge:

This appeal requires us to address whether John Witherow, a former inmate at a now-closed Nevada State Prison, can recover damages from Lea Baker, an officer at the prison. As required by prison policy, Baker screened and intermittently checked in on Witherow's phone conversations with the attorney he had hired to bring lawsuits on his behalf. Because Baker did not violate any Fourth Amendment right that was clearly established at the time of her challenged conduct, we hold that she is entitled to qualified immunity.

I

This case has a long history, including two prior appeals to this court. The case began in 2008, when Witherow was an inmate in a Nevada Department of Corrections (NDOC) facility. He and his lawyer brought a joint civil action under 42 U.S.C. § 1983 against a range of defendants claiming they had violated Witherow's Fourth Amendment rights and engaged in unlawful wiretapping. Witherow alleged the prison was monitoring his calls to the attorney he had engaged to help with his civil actions. A series of pretrial rulings resulted in the dismissal of all parties except for Witherow and two NDOC officers, Lea Baker and Ingrid Connally.¹ After a three-day jury trial in 2013, the jury returned a verdict for defendants on Witherow's wiretapping claim. In 2014, the district court dismissed Witherow's claims against Baker and Connally for damages and injunctive and declaratory relief.

On appeal, we reversed the district court's dismissal of Witherow's Fourth Amendment claim against Baker and Connally in an unpublished opinion. Evans v. Skolnik , 637 F. App'x 285, 288 (9th Cir. 2015).² We rejected the district court's holding that Witherow lacked a subjective expectation of privacy because he was aware NDOC was screening his calls. Instead, the district court should have made a "normative inquiry" regarding the scope of Witherow's Fourth Amendment rights. Id . But because Witherow was a prisoner, "the fact that the NDOC's practice implicated the Fourth Amendment does not mean that Witherow's constitutional rights were necessarily violated." Id . We directed the district court to consider on remand whether "NDOC's practice of initially screening and occasionally ‘checking in’ on [Witherow's] legal calls was not ‘reasonably related to legitimate penological interests,’ " id. (citing Turner v. Safley , 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ), and whether there were "alternative prison policies that could satisfy" the relevant penological objectives, id . (quoting Demery v. Arpaio , 378 F.3d 1020, 1028 n.2 (9th Cir. 2004) ).

On remand, the district court again dismissed Witherow's Fourth Amendment claim against Baker and Connally. On Witherow's second appeal, we reversed the dismissal due to a procedural error and remanded once again. Evans v. Baker , 691 F. App'x 488, 489 (9th Cir. 2017).

While the case was pending before the district court, Connally died. Baker, the sole remaining defendant, moved for summary judgment on Witherow's Fourth Amendment claim. The district court granted her motion, holding that Baker was entitled to qualified immunity because (1) Baker had not violated Witherow's Fourth Amendment rights, and (2) if she had violated any such right, that right was not clearly established. This third appeal followed.

II

Witherow claims that Baker's conduct in monitoring his legal calls to the attorney representing him in civil actions against the prison violated his Fourth Amendment rights. Because the district court granted Baker's motion for summary judgment, we view the evidence in the light most favorable to Witherow. See Espinosa v. City & County of San Francisco , 598 F.3d 528, 532 (9th Cir. 2010).

Between May 2007 and January 2008, Baker was a correctional officer at Nevada State Prison. During that time, she was regularly assigned to Unit 13, the disciplinary segregation unit, where Witherow was housed. Inmates in Unit 13 were not permitted outside their cells except in limited circumstances.

As part of her assignment, Baker was responsible for monitoring telephone calls. Because inmates in Unit 13 were confined to their cells, they had to make their personal and legal phone calls from within those cells using a portable phone provided by prison officials instead of using wall-mounted phones. Unit 13 consisted of two 30-prisoner units, with one portable phone for each unit. Inmates wishing to make legal calls would fill out a form identifying the name and phone number of their legal representative. When the portable phone was available, an officer would hand the phone to the inmate who had requested it, and the inmate would make the call from his cell.

At the time Baker was working in Unit 13, the portable phones did not have a caller identification function. This meant that an inmate could purport to make a legal call but actually make a personal call, or make a legal call first and then make personal calls. And if an inmate engaged in lengthy personal calls, it could deprive other inmates from using the portable phone. Officers were not allowed to monitor the calls by standing close to the cells because of the risk they could overhear privileged information.

To avoid improper use of the portable phones, NDOC instituted various procedures that Baker followed.³ The prison control center was equipped with speakers that were wired into the portable phone lines. This allowed officers to listen to the conversation on the phone by flipping a switch. Baker would listen to the beginning of a legal call to confirm its legal character. After the inmate dialed the number, she would wait until an attorney, secretary, or receptionist from a law office or other professional office answer the phone. She would then switch off the speaker. She stated that she was not allowed "to listen to legal calls for longer than it took to identify the party receiving the phone call" and did "not recall ever listening to a legal call for longer than it took to initially screen" the call. Inmates were allowed 20 minutes on most calls, and other inmates might be waiting for the phone. Therefore, Baker would switch the speaker back on after some time had passed to see if the inmate was still making a legal call. If Baker turned on the speaker "and determined that [the inmate] was still making a legal call" she would turn the switch off. Baker did not recall hearing any attorney-client communication between Witherow and his attorney.

III

A

We review a district court's grant of summary judgment based on qualified immunity de novo. Sandoval v. Las Vegas Metro. Police Dep't , 756 F.3d 1154, 1160 (9th Cir. 2014). A government official is entitled to qualified immunity from a claim for damages unless the plaintiff raises a genuine issue of fact showing (1) "a violation of a constitutional right," and (2) that the right was "clearly established at the time of [the] defendant's alleged misconduct." Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

"We may address these two prongs in either order," Sandoval , 756 F.3d at 1160, but this was not always the case. In Saucier v. Katz , the Supreme Court required courts to determine whether a plaintiff's allegations established a violation of a constitutional right before determining whether that right was clearly established. 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Saucier adopted this two-step procedure "to support the Constitution's ‘elaboration from case to case’ and to prevent constitutional stagnation." Pearson , 555 U.S. at 232, 129 S.Ct. 808. But the Supreme Court soon changed course, ruling that the sequence of review set out in Saucier was not mandatory and courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236, 129 S.Ct. 808.

Pearson explained that "experience has pointed up" the shortcoming of Saucier ’s "inflexible procedure." Id. at 233–34, 129 S.Ct. 808. As a jurisprudential matter, adhering to " Saucier ’s two-step protocol departs from the general rule of constitutional avoidance and runs counter to the ‘older, wiser judicial counsel not to pass on questions of constitutionality ... unless such adjudication is unavoidable.’ " Pearson , 555 U.S. at 241, 129 S.Ct. 808 (quoting Scott v. Harris , 550 U.S. 372, 388, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (Breyer, J., concurring)). Resolving a difficult constitutional issue instead of resolving the often easier question whether a right is clearly established "sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case." Id. at 236–37, 129 S.Ct. 808. Moreover, "[u]nnecessary litigation of constitutional issues also wastes the parties’ resources," and " Saucier ’s two-step protocol disserves the purpose of qualified immunity when it forces the parties to endure additional burdens of suit—such as the costs of litigating constitutional questions and delays attributable to resolving them—when the suit otherwise could be disposed of more readily." Id. at 237, 129 S.Ct. 808 (cleaned up). Further, "[t]here are circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking," such as when "the briefing of constitutional questions is woefully inadequate." Id. at 239, 129 S.Ct. 808. Finally, "although the first prong of the...