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Wenona Diaz v. State of Alaska


October 1, 2010


Supreme Court No. S-13151 Superior Court No. 3AN-05-7914 CI Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Michael Spaan, Judge.

The opinion of the court was delivered by: Winfree, Justice.

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


Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen, Justices. [Eastaugh, Justice, not participating.]


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 detective and his agency are not liable for conspiring with state officials to violate Diaz's constitutional rights because no such violation occurred.


A. Facts*fn1

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 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.*fn2 Immediately following the search, the DOC officers took Diaz 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.*fn3 Summary judgment was granted in November 2006 as to Bivens claims against Parlier and his agency under the United States and Alaska Constitutions*fn4 and § 1983 claims against Parlier's agency premised on respondeat superior.*fn5 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.*fn6 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.*fn7

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.


We review the grant of summary judgment de novo.*fn8 "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."*fn9 We apply de novo review and our independent judgment to constructions of the United States Constitution.*fn10


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."*fn11 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,*fn12 escorted her 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.*fn13 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.*fn14 If Diaz was already 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 guarantee*fn15 or the Eighth Amendment's protection against cruel and unusual punishment.*fn16 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 "follow[ing] the rules of the correctional facility in which the prisoner is confined."*fn17 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."*fn18 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.*fn19 Diaz therefore was in DOC custody while serving her sentence in the electronic monitoring program.*fn20

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.*fn21 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 persons convicted of a crime."*fn22 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.*fn23

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.*fn24

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,*fn25 but rather that she was unlawfully seized and interrogated in violation of the Fourteenth Amendment. Fourteenth Amendment substantive due process rights are violated when police misconduct in pursuit of incriminating statements "shocks the conscience."*fn26

Conscience-shocking interrogations typically involve physical or psychological abuse.*fn27 An illustration of potentially conscience-shocking interrogation conduct occurred in Chavez v. Martinez,*fn28 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."*fn29

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 appropriate Miranda 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 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."*fn30

The Fourteenth Amendment protects against the deprivation of "life, liberty, or property" without adequate process of law.*fn31 It applies to "the deprivation of an individual interest of sufficient importance to warrant constitutional protection."*fn32 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.*fn33 For example, due process 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.*fn34 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.*fn35

A liberty interest that is protected by the United States Constitution may also be created by state law.*fn36 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 "impos[e] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."*fn37

DOC's policies and procedures manual describes the electronic monitoring program as "[a] form of incarceration for offenders"*fn38 that provides "a cost effective alternative to the use of hard correctional facility beds for appropriate prisoners."*fn39 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.*fn40 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.*fn41

Although Diaz argues her removal from the electronic monitoring program deprived her of her liberty interest in rehabilitation as created by article I, section 12 of the Alaska Constitution,*fn42 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.*fn43 Nor did segregating Diaz from the general prison population for less than a day*fn44 or restricting her telephone privileges for two days*fn45 create 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.*fn46


For the reasons stated above, we AFFIRM the summary dismissal of Diaz's claims.*fn47

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