Valdez v. Rosenbaum

• Decision Date: 05 September 2002
• Docket Number: No. 01-35300.,01-35300.
• Citation: 302 F.3d 1039
• Parties: Juan VALDEZ, Plaintiff-Appellant, v. Mark A. ROSENBAUM; Al Terrault; Julie Latuska; Bill Parker; George Gore; Debbie Miller; Allen Cooper, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

302 F.3d 1039

Juan VALDEZ, Plaintiff-Appellant, v. Mark A. ROSENBAUM; Al Terrault; Julie Latuska; Bill Parker; George Gore; Debbie Miller; Allen Cooper, Defendants-Appellees.

No. 01-35300.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2002.^*

Filed September 5, 2002.

COPYRIGHT MATERIAL OMITTED

Daniel R. Anderson and Katherine C. Ball, Law Students, University of Idaho College of Law, Moscow, ID, for the appellant.

Richard L. Pomeroy, Assistant United States Attorney, Anchorage, AK, and Marilyn

J. Kamm, Assistant Attorney General, Juneau, AK, for the appellees.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CV-99-00477-JKS.

Before: D.W. NELSON, THOMPSON and PAEZ, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge.

In this civil rights action, Juan Valdez alleges that his constitutional rights were violated during his pretrial detention in the Alaska Cook Inlet Pretrial Facility ("CIPT"). Valdez was a federal detainee who was held in CIPT pursuant to an agreement between the state of Alaska and the U.S. Marshal Service. After he was convicted in federal court, Valdez filed this suit against Assistant U.S. Attorney Mark A. Rosenbaum ("Rosenbaum") and various Alaska state officials and CIPT administrators ("state officials"), alleging that they had imposed unlawful restrictions on his telephone access during four-and-a-half months of his pretrial detention. Valdez invokes the First, Sixth, and Fourteenth Amendments to the United States Constitution. We hold that there was no deprivation of Valdez's constitutional rights and, therefore, affirm the district court's grant of summary judgment in the defendants' favor.

I. Factual and Procedural Background

Valdez was the leader of a drug smuggling conspiracy that brought large amounts of cocaine into Alaska. He was tried and convicted in federal court of various drug trafficking charges and sentenced to thirty years in prison. This court affirmed his conviction on May 7, 2001. United States v. Marin, 8 Fed.Appx. 815 (9th Cir.2001).¹

This lawsuit arises from the conditions of Valdez's pretrial detention in CIPT which began on or about September 23, 1998. While in detention, Valdez was initially placed in the jail's general population where he shared access to four telephones. However, on October 20, 1998, Rosenbaum, the federal prosecutor on the case, sent a letter to the U.S. Marshal requesting that Valdez's telephone access be suspended. The letter stated in pertinent part:

Tomorrow, it is anticipated that the present indictment will be superceded to add five new defendants, none of whom are presently in custody. In order to further insure the safety of law enforcement personnel who will be seeking to serve arrest warrants on the new codefendants, we are requesting that Mr. [Valdez's] telephone privileges be suspended until all have been apprehended. Since Mr. [Valdez] will know about the superceding indictments before the warrants can be served, I am sure you can readily see how telephone notice to these other individuals in advance could present a potentially dangerous situation to those seeking to execute the warrants.

In response to this request, the state officials placed Valdez in administrative segregation. While in administrative segregation, Valdez was not permitted to make or receive any telephone calls, save a daily telephone call with his attorney. In order to call his attorney, Valdez had to submit a written request. Notwithstanding these restrictions, Valdez was still permitted to confer with his attorney in person at the jail and receive in-person visits by friends and family.

The day after the telephone restriction was imposed, two of Valdez's five co-defendants were arrested. A third co-defendant was arrested approximately two months later in December, 1998. The other two remained fugitives during the relevant times of this case. Valdez's telephone restriction continued for approximately four-and-a-half months until about a week after one of the captured co-conspirators, Susana Cruz, was released on bail on February 24, 1999. On March 1, 1999 Rosenbaum mailed a letter to the U.S. Marshal requesting that the telephone restriction be lifted. In the letter, Rosenbaum stated that: "although two co-defendants remain in a fugitive status, the fact that another has been released on bail renders the restriction of Mr. [Valdez's] telephone privileges moot." Valdez's telephone privileges were restored on March 4, 1999.

After he was convicted, Valdez filed this pro se civil rights action against Rosenbaum and the state officials. His claims against the state officials were brought under 42 U.S.C. § 1983, and his claims against Rosenbaum were brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). He alleged that the pretrial telephone restriction violated his constitutional rights to (1) procedural due process, (2) substantive due process, (3) freedom of speech, (4) effective assistance of counsel, and (5) equal protection.

The district court, adopting the recommendations of the magistrate judge, determined there was no genuine issue of material fact in dispute and concluded that, although Valdez's constitutional rights had been violated, the defendants were entitled to qualified immunity. The court entered judgment in favor of the defendants and Valdez filed this timely appeal. We have jurisdiction under 28 U.S.C. § 1291. We affirm on the ground that Valdez's constitutional rights were not violated.

II. Standard of Review

We review de novo the district court's grant of summary judgment. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 816, 151 L.Ed.2d 700 (2002). We are governed by the same standard used by the district court under Rule 56(c) of the Federal Rules of Civil Procedure. Id. Thus, we must determine, viewing the evidence in the light most favorable to Valdez, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. We may affirm the district court's judgement on any basis supported by the record. Venetian Casino Resort, L.L.C. v. Local Joint Executive Bd. of Las Vegas, 257 F.3d 937, 941 (9th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1204, 152 L.Ed.2d 142 (2002).

III. Discussion

A. The Sequence of Analysis

Our discussion begins with the two-step sequence of analysis set forth by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, we ask whether the facts Valdez alleged show that the defendants violated his constitutional rights. Id. at 207, 121 S.Ct. 2151 (instructing federal courts not to assume the existence of a constitutional right even if it is clear that the defendants would be entitled to qualified immunity). If we answer that question in the negative, no further analysis is necessary. If, on the other hand, we answer that question in the affirmative, we then consider whether the defendants are entitled to qualified immunity. See id. at 201, 207, 121 S.Ct. 2151; Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir.2002) (en banc) (explaining that "we must ask first whether the facts taken in the light most favorable to the plaintiff would establish a [constitutional] violation.... Only if the answer is in the affirmative should we address the immunity issue.").

Valdez attempts to short-circuit this analysis by arguing that the only issue on appeal is whether the defendants are entitled to qualified immunity. He contends the defendants' failure to cross-appeal precludes them from challenging the district court's conclusion that they violated his constitutional rights. That is incorrect. As the prevailing parties, the defendants need not have filed cross-appeals in order to correct errors in the district court's reasoning nor to preserve alternative grounds for affirming the judgment. Lee v. Burlington N. Santa Fe Ry. Co., 245 F.3d 1102, 1107 (9th Cir.2001); Rodrigues v. Herman, 121 F.3d 1352, 1355 n. 2 (9th Cir.1997). Accordingly, we consider the merits of Valdez's claims and conclude that the defendants did not violate any of his constitutional rights. We do not reach the qualified immunity issue.

B. Procedural Due Process

Valdez contends that the telephone restriction violated his constitutional right to procedural due process because Alaska law creates a constitutionally-protected liberty interest in a prisoner's access to a telephone.² We disagree.

A state law must satisfy two requirements in order to create a liberty interest protected by the Constitution. First, the law must set forth "`substantive predicates' to govern official decision making" and, second, it must contain "explicitly mandatory language," i.e., a specific directive to the decisionmaker that mandates a particular outcome if the substantive predicates have been met. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 462-63, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)).³

The applicable Alaska statute provides:

A prisoner shall have reasonable access to a telephone except when access is suspended as punishment for conviction of a rule infraction or pending a hearing for a rule infraction involving telephone abuse. A suspension under this subsection must be reasonable in length and may not prohibit telephone communication between the prisoner and an attorney or between the prisoner and the office of the ombudsman.

Alaska Stat. § 33.30.231(a) (2000). This statute does not mandate a particular outcome. It merely entitles a prisoner to "reasonable access" to a telephone, and provides prison officials with discretion to determine what is reasonable access under the circumstances....