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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Diaz v. State, Dept. of Corrections (10/1/2010) sp-6516
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
WENONA DIAZ, )
) Supreme Court No. S-13151
Appellant, )
) Superior Court No. 3AN-05-7914 CI
v. )
) O P I N I O N
)
STATE OF ALASKA, DEPARTMENT ) No. 6516 - October 1, 2010
OF CORRECTIONS; JENNIFER )
CHRISTENSEN; JAMES BOWERS; )
McHENRY DETECTIVE AGENCY; )
WILLIAM PARLIER; PROBATION )
OFFICER BROWN; PROBATION )
OFFICER III McCARRON; and )
PROBATION OFFICER L. )
WILLIAMSON, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Michael Spaan, Judge.
Appearances: Kenneth W. Legacki, Anchorage, for
Appellant. Ruth Botstein, Assistant Attorney General,
Anchorage, and Daniel S. Sullivan, Attorney General, Juneau,
for Appellees Officers Conrad Brown, Terry McCarron, and
Loyd Williamson. Timothy M. Lynch, Lynch & Associates,
P.C., Anchorage, for Appellees McHenry Detective Agency
and William Parlier.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Christen, Justices. [Eastaugh, Justice, not participating.]
----------------------- Page 2-----------------------
WINFREE, Justice.
I. INTRODUCTION
While serving a sentence in the Alaska Department of Corrections's (DOC)
electronic monitoring program, Wenona Diaz worked for a time at a travel agency.
Shortly after Diaz stopped working at the travel agency, DOC probation officers brought
Diaz to her former employer's office. There the former employer and the former
employer's private detective questioned Diaz about alleged criminal conduct. The DOC
officers then returned Diaz to a correctional center for the remaining four weeks of her
sentence, where she was briefly segregated from the general population and had her
telephone privileges restricted for a few days.
After Diaz's former employer was convicted of defrauding her own
customers and the accusations against Diaz were abandoned, Diaz sued those involved
in her interrogation and return to jail. The superior court granted summary judgment in
favor of the DOC officers and the private detective and his agency. Diaz appeals only
the superior court's ruling that these defendants did not violate her rights under the
Fourth or Fourteenth Amendments to the United States Constitution.
We affirm the superior court's decision because: (1) Diaz's officer-escorted
trip to and interrogation at the travel agency did not implicate her Fourth Amendment
rights as she was already in DOC custody when the DOC officers "seized" her; (2) the
DOC officers' actions, although disturbing, did not "shock the conscience" as required
for a violation of the Fourteenth Amendment; (3) Diaz's return to prison, her day of
segregation from the general population, and the two days of telephone restrictions did
not deprive her of a liberty interest in violation of the Fourteenth Amendment because
her freedom was not restrained in excess of her sentence and she did not experience an
atypical or significant hardship in comparison to ordinary prison life; and (4) the private
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detective and his agency are not liable for conspiring with state officials to violate Diaz's
constitutional rights because no such violation occurred.
II. FACTS AND PROCEEDINGS
A. Facts1
In late May 2003 Diaz had about one month of a felony sentence left to
serve in DOC's electronic monitoring program. On May 21 private detective William
Parlier called DOC to report that his client Jennifer Christensen had that day fired Diaz
as an employee of her travel agency. Parlier reported that when Diaz was hired she had
not told Christensen she was on felony supervision and that Diaz had since been taking
files home, diverting clients' emails to outside accounts, charging items to clients' credit
cards, and interrogating other employees for "dirt." The DOC officer who took Parlier's
call provided the telephone number of the electronic monitoring department, which was
supervised at that time by DOC Officer Terry McCarron.
On May 22 Christensen called Officer McCarron and alleged that Diaz stole
from her while employed at her travel agency. Officer McCarron later testified at his
deposition that Christensen's allegation on its own was sufficient to transfer Diaz from
the electronic monitoring program to jail. Parlier went to Officer McCarron's office to
coordinate an opportunity to ask Diaz questions, and Parlier there met DOC Officers
Loyd Williamson and Conrad Brown. Officer McCarron directed the two DOC officers
to investigate.
Officers Williamson and Brown contacted Diaz by telephone at her new
place of employment and requested she meet them at her house as soon as possible, but
1 We accept the facts as alleged by Diaz and make all reasonable inferences
in her favor because this case was resolved against her on summary judgment. See
Trombley v. Starr-Wood Cardiac Group, PC, 3 P.3d 916, 918 n.1 (Alaska 2000).
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----------------------- Page 4-----------------------
did not explain why. Diaz complied by leaving work and taking a cab home. The DOC
officers met her in her driveway and walked inside with her, where they informed her she
had to go to Christensen's travel agency because there was a "concern about missing
files." The DOC officers escorted Diaz to their van and put her in the caged-in back seat.
Officers Williamson and Brown took Diaz to the travel agency and escorted
her inside. She waited in an office, guarded by one of the DOC officers, for somewhere
between one and one-and-one-half hours. The DOC officer was between her and the
door at all times, such that Diaz inferred she "was not to leave the room or be away from
him."
Diaz then was taken into another office in which Parlier's videocamera and
several chairs were arranged. At some point that morning, Parlier, Christensen, and
Officers Williamson and Brown had consulted and decided to videotape the questioning.
Present in the office with Diaz were Christensen; her husband, James Bowers; Parlier;
and Officers Williamson and Brown. Parlier directed the interrogation and asked
prepared questions regarding embezzlement and theft of money and documents.
Christensen and Bowers also asked Diaz questions in accusatory tones. Parlier
videotaped the interrogation, but later lost the videotape. During the approximately
30-minute interrogation, Diaz denied all of the allegations against her and accused
Christensen of being responsible for the embezzlement.
After the interrogation at the travel agency, Officers Williamson and Brown
escorted Diaz back to her house. They searched her house and computer, but found no
incriminating evidence.2 Immediately following the search, the DOC officers took Diaz
2 As a participant in DOC's electronic monitoring program, Diaz had
consented to searches of her residence for the presence of contraband or to verify
compliance with the program's terms and conditions.
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to the Anchorage jail. Within an hour of Diaz's transfer to jail, Christensen called Officer
McCarron and alleged that Diaz was calling Christensen's clients from jail. Diaz's
telephone access was then restricted so she could call only her lawyer. At the same time
Diaz's cellmate was removed, and Diaz was segregated from the rest of the jail
population. Prison records show Diaz was placed in segregation on May 22 at 5:00 p.m.
and removed from segregation the following morning at 9:35 a.m. - almost 17 hours.
Diaz remained at the Anchorage jail for two days before being transported to Hiland
Mountain Correctional Facility, where she was able to place calls to her family. Diaz
served the time remaining on her sentence, about three weeks, in an institutional prison.
Christensen was indicted in April 2004 for defrauding her travel agency's
clients and a credit card processing company of nearly $250,000, and later pled guilty to
20 counts of wire fraud and one count of credit card fraud.
B. Proceedings
In May 2005 Diaz filed suit against DOC, Christensen, Bowers, Parlier and
his detective agency, and DOC Officers McCarron, Williamson, and Brown, asserting 42
U.S.C. § 1983 claims under the United States Constitution, among other claims.3
Summary judgment was granted in November 2006 as toBivens claims against Parlier and
his agency under the United States and Alaska Constitutions4 and § 1983 claims against
3 42 U.S.C. § 1983 allows for a direct action against persons who have
violated federal constitutional or statutory rights while acting under color of law. State,
Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. v. Native Vill. of Curyung,
151 P.3d 388, 392 (Alaska 2006) (citingMaine v. Thiboutot, 448 U.S. 1 (1980)).
4 A "Bivens claim," named for Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 397 (1971), is a direct cause of action for
compensatory damages against an individual federal official who violates federal
constitutional rights. Id. (concerning action for violation of Fourth Amendment); Bush
(continued...)
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Parlier's agency premised on respondeat superior.5 At the same time, the § 1983 claim
against DOC was dismissed, and Diaz conceded she was not suing the DOC officers in
their official capacities.6 The superior court later granted summary judgment as to the
remaining § 1983 claims against the DOC officers in their individual capacities and against
Parlier and his detective agency for lack of constitutional violation upon which to base
conspiracy. Final judgment dismissing all claims against DOC, the DOC officers, and
Parlier and his detective agency was entered in May 2008.7
Diaz appeals the dismissal of her § 1983 claims against the DOC officers in
their individual capacities and her § 1983 claims against Parlier and his detective agency,
premised on conspiracy, all based on alleged violations of her rights under the Fourth and
Fourteenth Amendments to the United States Constitution.
4 (...continued)
v. Lucas, 462 U.S. 367, 376-78 (1983) (discussing Bivens actions for violation of the
First Amendment, the Due Process Clause of the Fifth Amendment, and the Eighth
Amendment). The superior court determined that a federal Bivens claim cannot be
brought without the involvement of a federal officer, and that a state Bivens claim will
not be recognized when alternative statutory or common law remedies exist. We have
stated "we will not [allow] a private cause of action for damages under the Alaska
Constitution 'except in cases of flagrant constitutional violations where little or no
alternative remedies are available.' " Hertz v. Beach, 211 P.3d 668, 677 n.12 (Alaska
2009) (quotingLowell v. Hayes, 117 P.3d 745, 753 (Alaska 2005)). Diaz does not pursue
an appeal of this ruling.
5 The superior court concluded the respondeat superior doctrine does not
apply in § 1983 cases, citing to Prentzel v. State, Dep't of Pub. Safety, 53 P.3d 587, 595
n.46 (Alaska 2002). Diaz does not pursue an appeal of this ruling.
6 See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("[N]either
a State nor its officials acting in their official capacities are 'persons' under § 1983.").
Diaz does not pursue an appeal of this ruling.
7 The final judgment did not address Diaz's claims against Christensen and
Bowers except to note that defamation claims were dismissed by stipulation.
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III. STANDARD OF REVIEW
We review the grant of summary judgment de novo.8 "Drawing all
reasonable inferences in favor of the nonmoving party, we will uphold summary judgment
if no genuine issue of material fact exists and the moving party is entitled to judgment as
a matter of law."9 We apply de novo review and our independent judgment to
constructions of the United States Constitution.10
IV. DISCUSSION
An essential element to a § 1983 action is "conduct [that] deprived a person
of rights, privileges, or immunities secured by the Constitution or laws of the United
States."11 Diaz argues that the DOC officers and Parlier and his detective agency violated
her rights under the Fourth and Fourteenth Amendments to the United States Constitution.
A. The Officer-Escorted Trip To And Interrogation At The Travel Agency
Did Not Violate Diaz's Federal Constitutional Rights.
Diaz asserts that her Fourth and Fourteenth Amendment rights were violated
when the DOC officers, without giving her appropriate Miranda warnings,12 escorted her
8 Sowinski v. Walker, 198 P.3d 1134, 1143 (Alaska 2008).
9 Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303 (Alaska 2000)
(citing Shade v. CO & Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995)).
10 State, Dep't of Revenue v. Andrade, 23 P.3d 58, 65 (Alaska 2001) (citing
Waiste v. State, 10 P.3d 1141, 1144 (Alaska 2000)).
11 Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds
by Daniels v. Williams, 474 U.S. 327, 330-31 (1986). The other essential element is that
"the conduct complained of was committed by a person acting under color of state law."
Id. at 535.
12 Under Miranda v. Arizona, law enforcement officers are required prior to
interrogating a suspect in custody to give a warning about the right to remain silent, the
(continued...)
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to and held her at her former place of employment for a custodial interrogation conducted
by private citizens.
The Fourth Amendment, made applicable to the states through the Due
Process Clause of the Fourteenth Amendment, guarantees against unreasonable searches
and seizures.13 But the constitutionality of Diaz's officer-escorted trip to and interrogation
at the travel agency is evaluated under the Fourth Amendment's protection against
unreasonable seizures only if Diaz was not already in DOC custody.14 If Diaz was already
12 (...continued)
right to the presence of a retained or appointed attorney, and the possibility that any
statements made may be used as evidence. 384 U.S. 436, 444 (1966); accord State v.
Salit, 613 P.2d 245, 257 (Alaska 1980).
13 U.S. CONST. amend. IV;Lemon v. State, 514 P.2d 1151, 1157 n.13 (Alaska
1973) (citingMapp v. Ohio, 367 U.S. 643 (1961)).
14 See generally U.S. v. Childs, 277 F.3d 947, 950 (7th Cir. 2002) ("[A]n
officer may interrogate a person in prison on one offense about the possibility that the
inmate committed another. This is normal and, as far as we can tell, of unquestioned
propriety as far as the fourth amendment is concerned, whether or not the officer has
probable cause to believe that the inmate committed any other crime . . . . [t]he idea that
the police could violate a prisoner's [F]ourth amendment rights by asking questions in
search of information about other offenses has no basis in the language of that
amendment or the Supreme Court's cases.");Johnson v. City of Cincinnati, 310 F.3d 484,
491 (6th Cir. 2002) (remarking that "[t]he Fourth Amendment does not apply post-
conviction" and that, whatever the duration of the Amendment's protections, the relevant
analytical period exists "along the pretrial continuum" after which eventually "the Fourth
Amendment's protection gives way to the protection of another Amendment"); Riley v.
Dorton, 115 F.3d 1159, 1163-64 (4th Cir. 1997) (holding that analysis of seizures under
the Fourth Amendment applies only to an initial seizure, and subsequent conditions of
detention are properly examined under the Fourteenth Amendment), abrogated by
Wilkins v. Gaddy, 130 S. Ct. 1175, 1177 (2010) (overrulingRiley on Eighth Amendment
grounds); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996) ("Claims involving
the mistreatment of arrestees or pretrial detainees in custody are governed by the
(continued...)
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in DOC custody when the DOC officers escorted her to the travel agency, the incident is
instead evaluated under either the Fourteenth Amendment's substantive due process
guarantee15 or the Eighth Amendment's protection against cruel and unusual
punishment.16 Diaz never asserted a violation of her Eighth Amendment rights.
1. Fourth Amendment analysis
Under Alaska law a prisoner must be in DOC custody to earn good time
credit - the statutory one-third reduction of a prisoner's term of imprisonment earned by
14 (...continued)
Fourteenth Amendment's Due Process Clause instead of the Eighth Amendment's Cruel
and Unusual Punishment Clause, which applies to such claims by convicted prisoners.");
Wilkinsv. May, 872 F.2d 190, 192-93 (7th Cir. 1989) (noting that, upon conviction, the
"the fact, manner, or duration of" a prisoner's "continued confinement is unconstitutional
passes over from Fourth Amendment to . . . the Eighth Amendment"); Williams v. Boles,
841 F.2d 181, 183 (7th Cir. 1988) (holding that, against Fourth Amendment challenge,
a "judgment convicting [a criminal] extinguish[es], for the duration of his sentence, his
interest in privacy and personal mobility . . . the applicable provision is the Cruel and
Unusual Punishments Clause of the [E]ighth [A]mendment"); Rizzo v. Dawson, 778 F.2d
527, 530 (9th Cir. 1985) (dismssing a prisoner's objection to transfer within a prison
system as against the Fourth Amendment as having "no basis in law").
15 See Chavez v. Martinez, 538 U.S. 760, 779-80 (2003) (remanding for a
determination whether officer's misconduct in pursuit of a confession was so egregious
that it violated the Fourteenth Amendment's substantive due process guarantee);see also
id. at 773 (Thomas, J., plurality) (noting that police torture or other abuse resulting in
a confession is evaluated under the Fourteenth Amendment's Due Process Clause).
16 The Eighth Amendment, through the Due Process Clause of the Fourteenth
Amendment, forbids state prison officials from imposing "cruel and unusual
punishments." U.S. CONST. amend. VIII;Farmer v. Brennan, 511 U.S. 825, 832 (1994).
"[T]he less protective Eighth Amendment standard applies 'only after the State has
complied with the constitutional guarantees traditionally associated with criminal
prosecutions.' " Graham, 490 U.S. at 398-99 (quotingIngraham v. Wright, 430 U.S. 651,
671 n.40 (1977)).
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"follow[ing] the rules of the correctional facility in which the prisoner is confined."17 A
correctional facility is defined as "a prison,jail, camp, farm, half-way house, group home,
or other placement designated by the commissioner for the custody, care, and discipline
of prisoners."18 Diaz was designated to serve her sentence at home in the electronic
monitoring program, and she received good time credit for the time she spent in the
program.19 Diaz therefore was in DOC custody while serving her sentence in the
electronic monitoring program.20
Diaz also was in DOC custody in the sense that she could have been
prosecuted for escape had she removed the monitoring device or traveled outside
permitted locations.21 In holding that a sentenced prisoner had committed escape when
he removed his electronic monitoring device and visited a tavern outside the area
permitted by the conditions of his release, an Ohio appellate court stated that
electronically monitored house arrest "constitutes confinement in a facility for custody of
17 AS 33.20.010(a); State v. Bourdon, 193 P.3d 1209, 1210 (Alaska App.
2008).
18 AS 33.30.901(4); Bourdon, 193 P.3d at 1210.
19 Diaz's March 11, 2003, sentencing preceded the effective date of ch. 24, §
31, SLA 2007 (codified at AS 33.20.010(c)), which provides that prisoners cannot
receive good time credit for time spent under electronic monitoring.
20 See Matthew v. State, 152 P.3d 469, 473 (Alaska App. 2007) (citing AS
33.30.065) (referring to sentenced prisoners assigned to serve part of their terms of
imprisonment in electronic monitoring as "already in the custody of the Department of
Corrections").
21 AS 11.56.310(a)(3) (providing that a person serving a felony sentence in
an electronic monitoring program commits the crime of escape in the second degree if,
without lawful authority, that person "removes, tampers with, or disables the electronic
monitoring equipment" or leaves the places designated for service of that sentence).
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persons convicted of a crime."22 In Lock v. State we similarly reasoned that the fact that
a probationer had committed escape when he left a court-ordered residential rehabilitation
program indicated that he had been "subjected to severe restraints on his freedom of
movement" and therefore was in custody for purposes of entitlement to day-for-day
credit.23
Because Diaz earned good time credit and was subject to prosecution for
escape while in the electronic monitoring program, she was already in DOC custody when
she was "seized" by the DOC officers. Therefore her officer-escorted trip to and
interrogation at the travel agency cannot have violated her Fourth Amendment guarantee
against unreasonable seizures.24
2. Fourteenth Amendment analysis
Diaz asserts she was "subjected to interrogation without any due process,
and without any advisement of her constitutional rights." She clarifies her argument is
not that she was forced to testify against herself in violation of the Fifth Amendment,25 but
rather that she was unlawfully seized and interrogated in violation of the Fourteenth
Amendment. Fourteenth Amendment substantive due process rights are violated when
22 State v. Long, 611 N.E.2d 504, 505-06 (Ohio Ct. App. 1992) (emphasis
added).
23 609 P.2d 539, 545-47 (Alaska 1980).
24 We express no opinion whether we would reach the same conclusion had
Diaz been sentenced after the effective date of AS 33.20.010(c). See note 19, above. Our
conclusion does not suggest that a prisoner in Diaz's situation would not have Fourth
Amendment protection against seizures by law enforcement officers other than DOC
officers.
25 During the interrogation Diaz did not give any statement that was used
against her in any proceeding.
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police misconduct in pursuit of incriminating statements "shocks the conscience."26
Conscience-shocking interrogations typically involve physical or
psychological abuse.27 An illustration of potentially conscience-shocking interrogation
conduct occurred in Chavez v. Martinez,28 where a police officer "made no effort to dispel
[a man's] perception that medical treatment [for his facial gunshot wound would be]
withheld until [he] answered the questions put to him."29
Taking the evidence in the light most favorable to Diaz, the DOC officers
subjected her to a custodial interrogation by civilians at her former place of employment
without giving her an appropriateMiranda warning. But Diaz has not alleged or provided
evidence suggesting she was mentally or physically coerced or abused during the
interrogation. Although we certainly do not condone the DOC officers' decision to make
26 Crowe v. Cnty. of San Diego, 608 F.3d 406, 431 (9th Cir. 2010) (quoting
Rochin v. California, 342 U.S. 165, 172 (1952)); accord Church v. State, Dep't of
Revenue, 973 P.2d 1125, 1130 (Alaska 1999) ("A [substantive] due process claim will
only stand if the state's actions 'are so irrational or arbitrary, or so lacking in fairness, as
to shock the universal sense of justice.' ") (quoting Application of Obermeyer, 717 P.2d
382, 386-87 (Alaska 1986)).
27 See Crowe, 608 F.3d at 431-32; see also McConkie v. Nichols, 446 F.3d
258, 261 (1st Cir. 2006) ("Conscience-shocking conduct usually entails physical or
psychological abuse, or significant interference with a protected relationship, such as the
parent-child relationship."); Cooper v. Dupnik, 963 F.2d 1220, 1223, 1248-50 (9th Cir.
1992) (noting "brutality by police or prison guards is one paradigmatic example of a
substantive due process violation, [but] does not exhaust the possibilities" and holding
it was conscience-shocking when police tried to extract a confession through
"sophisticated psychological torture" with the "purpose of making it difficult, if not
impossible, for [a charged] suspect to take the stand in his own defense" and of
"curtailing [his] right to present an insanity defense"), overruled on other grounds by
Chavez, 538 U.S. at 773 (Thomas, J., plurality).
28 538 U.S. at 779-80.
29 Id. at 798 (Kennedy, J., concurring in part and dissenting in part).
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Diaz available for interrogation in this manner by her civilian accusers - in other
circumstances such a decision could lead to unfortunate acts of vigilantism - the DOC
officers' conduct bothers the conscience but does not shock it as required for a Fourteenth
Amendment violation.
B. The Transfer To Prison, Day Of Segregation From The General
Population, And Two Days Of Telephone Restrictions Did Not Violate
Diaz's Federal Constitutional Rights.
Diaz asserts that she was deprived of a liberty interest without due process
when "she was remanded to the institutional jail, put in solitary confinement," and
"denied access to a telephone to call her family."30
The Fourteenth Amendment protects against the deprivation of "life, liberty,
or property" without adequate process of law.31 It applies to "the deprivation of an
individual interest of sufficient importance to warrant constitutional protection."32 The
point at which restraints on a convicted prisoner's freedom implicate a federal-
constitution-based liberty interest requiring due process of law is when her freedom is
restrained in excess of her sentence in an unexpected manner.33 For example, due process
30 Diaz also argues that she had a property interest in the right to participate
in the electronic monitoring program. Because she raised this issue for the first time in
her reply brief, we deem it waived. See Maines v. Kenworth Alaska, Inc., 155 P.3d 318,
326 (Alaska 2007) (citing Crittell v. Bingo, 83 P.3d 532, 536 n.19 (Alaska 2004)).
31 Zinermon v. Burch, 494 U.S. 113, 125 (1990).
32 Larson v. Cooper, 90 P.3d 125, 135 (Alaska 2004) (quoting Matson v.
Commercial Fisheries Entry Comm'n, 785 P.2d 1200, 1206 (Alaska 1990)).
33 See Sandin v. Conner, 515 U.S. 472, 484 (1995) (noting the Due Process
Clause of its own force protects an interest in freedom from restraint exceeding the
sentence in an unexpected manner);see also Larson, 90 P.3d at 134 ("[U]nder the federal
constitution's Fourteenth Amendment, '[a]s long as the conditions or degree of
(continued...)
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requirements apply to parole revocations if a parolee returned to prison does not receive
credit against her sentence for time spent subject to the conditions of parole.34 In contrast,
the time Diaz spent in the DOC's electronic monitoring program counted against her
sentence. Therefore her transfer to the Anchorage jail, her segregation from the general
population, and her telephone restrictions did not implicate a liberty interest based in the
Fourteenth Amendment because they did not prolong her sentence.35
A liberty interest that is protected by the United States Constitution may also
be created by state law.36 In Sandin v. Conner, a civil rights suit brought by a prisoner,
the United States Supreme Court held that generally the only state-created liberty interests
protected by the Fourteenth Amendment are those in freedom from restraints which
33 (...continued)
confinement to which the prisoner is subjected is within the sentence imposed upon him
and is not otherwise violative of the Constitution, the Due Process Clause does not in
itself subject an inmate's treatment by prison authorities to judicial oversight.' ")
(quoting Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460-61 (1989)).
34 See Morrissey v. Brewer, 408 U.S. 471, 480-82 (1972). This is the case in
Alaska, where "the time [a] parolee was at liberty on parole does not alter the time the
parolee was sentenced to serve." AS 33.16.240(f). In Young v. Harper, the United States
Supreme Court held convicts in Oklahoma's pre-parole program had the same liberty
interest as those in its parole program because the two programs were distinct in name
only. 520 U.S. 143, 144-45 (1997). In that program both parolees and pre-parolees were
eligible for deductions against their sentences for time spent on parole. Id. at 149.
35 See Sandin, 515 U.S. at 476, 484, 487 (rejecting argument that prisoner had
a liberty interest under the Due Process Clause in remaining free from disciplinary
segregation because the underlying record of misconduct would not inevitably affect
sentence duration); Larson, 90 P.3d at 134 (citing Hewitt v. Helms, 459 U.S. 460, 468
(1983)) ("[T]he guarantee of due process does not provide . . . a right to avoid
segregation from the general prison population.").
36 Sandin, 515 U.S. at 483-84 ("States may under certain circumstances create
liberty interests which are protected by the Due Process Clause.").
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"impos[e] atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life."37
DOC's policies and procedures manual describes the electronic monitoring
program as "[a] form of incarceration for offenders"38 that provides "a cost effective
alternative to the use of hard correctional facility beds for appropriate prisoners."39 To
participate in the electronic monitoring program a prisoner must meet certain criteria,
including being within two years of a projected release date and being assigned to either
the minimum or medium custody level.40 The DOC manual provides that if a participant
does not comply with program requirements, she will be returned to a correctional center
or community residential center and reassigned to a new custody level through a
designation process.41
Although Diaz argues her removal from the electronic monitoring program
37 Id. at 484; accord Larson, 90 P.3d at 135.
38 State of Alaska Department of Corrections Policies and Procedures (P&P)
Definition 818.14(B).
39 P&P Purpose 818.14.
40 P&P Procedure 818.14(A)(4).
41 P&P Procedure 818.14(G). We also note that AS 33.30.065(c) provides:
A decision by the commissioner to designate a prisoner to
serve a term of imprisonment or a period of temporary
confinement, or a part of the term or period, by electronic
monitoring does not create a liberty interest in that status for
the prisoner. The prisoner may be returned to a correctional
facility at the discretion of the commissioner.
This statutory provision, although not determinative in our independent review, indicates
that the legislature did not intend to create a liberty interest in participation in the
electronic monitoring program.
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deprived her of her liberty interest in rehabilitation as created by article I, section 12 of
the Alaska Constitution,42 transferring Diaz back to an institutional prison did not create
an atypical or significant hardship in comparison to ordinary prison life because it was
simply a return to ordinary prison life.43 Nor did segregating Diaz from the general prison
population for less than a day44 or restricting her telephone privileges for two days45 create
42 Article I, section 12 of the Alaska Constitution identifies the principle of
reformation as one basis of criminal administration. See, e.g., Ferguson v. State, Dep't
of Corr., 816 P.2d 134, 139-40 (Alaska 1991) (holding prisoners have protected liberty
interest in continued participation in rehabilitation programs based on the reformation
clause); Rathke v. Corr. Corp. of Am., Inc., 153 P.3d 303, 306-09 (Alaska 2007)
(deeming colorable an inmate's claim that he was entitled to due process before he could
be placed in punitive segregation for 30 days because of his state-constitutional interest
in rehabilitation).
43 See, e.g., Dominique v. Weld, 73 F.3d 1156, 1159-61 (1st Cir. 1996)
(holding removal of convicted prisoner from community work release program did not
implicate a state-created liberty interest because "his transfer to a more secure facility
subjected him to conditions no different from those ordinarily experienced by large
numbers of other inmates serving their sentences in customary fashion").
44 Sandin, 515 U.S. at 484, 486 (holding 30 days in administrative segregation
"did not present the type of atypical, significant deprivation in which a State might
conceivably create a liberty interest" protected by the federal constitution). Because Diaz
confined her arguments on appeal to her § 1983 claims under the United States
Constitution, whether a prisoner's freedom from punitive segregation is a liberty interest
protected by the due process clause of the Alaska Constitution has no bearing on this
appeal. See Brandon v. State, Dep't of Corr., 73 P.3d 1230, 1234 (Alaska 2003) (noting
that due process guarantee of Alaska Constitution applies more broadly than identical
provision of the United States Constitution and that "under the Alaska Constitution
punitive segregation of a prison inmate following a major disciplinary infraction is a
deprivation of liberty sufficient to trigger the right to due process.") (citing McGinnis v.
Stevens, 543 P.2d 1221, 1236-37 (Alaska 1975)).
45 Tanney v. Boles, 400 F. Supp. 2d 1027, 1040 (E.D. Mich. 2005) (holding
telephone restriction for disciplinary reasons is not an "atypical and significant hardship"
(continued...)
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an atypical or significant hardship. Therefore Diaz did not have a state-law-based liberty
interest protected by the federal constitution in continued participation in an electronic
monitoring program, in not being placed in segregated confinement, or in enjoying full
telephone privileges.
C. Parlier And His Detective Agency Are Not Liable Under § 1983 For
Conspiring To Violate Diaz's Fourth And Fourteenth Amendment
Rights Because Those Rights Were Not Violated.
Diaz asserts that private parties "are liable under 42 U.S.C. § 1983 . . . if they
willfully participate in a joint action with State officials to deprive another of . . .
constitutional rights." Parlier responds that "[a]ny claim for damages under § 1983
requires a violation of a constitutionally protected right." We agree that Parlier and his
detective agency were entitled to summary judgment because they could not have
conspired with state actors to deprive Diaz of her constitutional rights, given that the
officer-escorted trip to and interrogation at the travel agency, the transfer back to jail, the
temporary segregated confinement, and the telephone restrictions did not deprive her of
those rights.46
V. CONCLUSION
For the reasons stated above, we AFFIRM the summary dismissal of Diaz's
claims.47
45 (...continued)
and therefore did not implicate liberty interest protected by the Fourteenth Amendment).
46 See Adickes v. S. H. Kress & Co., 398 U.S. 144, 150-52 (1970) (noting §
1983 recovery against a private entity for conspiracy requires proof of a deprivation of
a right secured by the Constitution or laws of the United States).
47 Having determined that Diaz's Fourth and Fourteenth Amendment rights
were not violated, we do not reach her argument that the defendants were strictly liable
(continued...)
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47 (...continued)
under § 1983 or the DOC officers' argument that they were entitled to qualified
immunity.
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