United States District Court, D. Alaska
RICHARD I. MILLER, Plaintiff,
Commissioner RONALD TAYLOR, Director GARLAND ARMSTRONG ret., Superintendent ROBERT HIBPSHMAN, Asst. Superintendent SHANNON MCCLOUD, & Security Sgt. DAVID CLEVELAND, individually and in their capacities as employees of the Department of Corrections Defendants.
ORDER GRANTING SUMMARY JUDGMENT IN PART
RALPH R. BEISTLINE UNITED STATES DISTRICT JUDGE
Richard Miller, representing himself, has filed a Prisoner’s Civil Rights Complaint under 42 U.S.C. § 1983. Docket 1-1. This matter was removed from the Alaska Superior Court in Kenai. Docket 1. The Assistant Attorney General, representing all Defendants, has filed an Answer and a Motion for Summary Judgment. Docket nos. 15 & 67. The Court has reviewed the Motion, as well as Miller’s response and the Defendants’ Reply. Docket nos. 80 & 81.
The facts in this matter are generally undisputed. Defendant was an inmate at Wildwood Pre-trial Facility in Kenai, Alaska, in early April 2008. Miller contends that his constitutional rights were violated when his phone calls with his attorney were recorded by Sergeant David Cleveland pursuant to Cleveland’s duties as a Correctional Officer. While notice was provided and Department policy required monitoring inmate phone calls, it is undisputed that attorney phone calls should not have been monitored or recorded. Nevertheless, several phone calls between Miller and his attorney were recorded. Docket 67 at 3-5. Sergeant Cleveland states that, once informed of the mistake, he took steps to block recording of future calls from the attorney’s phone number. Id. at 5. There is no allegation, however, that the attorney-client phone calls which were recorded played any role in Plaintiff’s ultimate conviction for child pornography and evidence tampering, and it is unclear what damages, if any, Plaintiff suffered as a result of the recordings. Miller brings a number of constitutional and state claims against State Department of Corrections employees, and requests declaratory relief and compensatory and punitive damages. Docket 1-1 at 10-15.
B. Standard of Review
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party bears the initial burden of proof for showing that no fact is in dispute. If the moving party meets that burden, then it falls upon the non-moving party to refute with facts that would indicate a genuine issue of fact for trial. Summary judgment is appropriate if the facts and allegations presented by a party are merely colorable, or are not significantly probative. The Court is mindful that it must liberally construe a self-represented plaintiff’s pleadings and give the plaintiff the benefit of the doubt.
C. Lack of Personal Participation
As a preliminary matter, Plaintiff does not allege personal participation by Hibpshman, McCloud or the Commissioner. None of these defendants were involved in the recording of Miller’s phone calls.
Liability under section 1983 arises only upon a showing of personal participation by the defendant. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.1979). A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under section 1983. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir.1984).
The lack of allegation of facts which show personal participation in an alleged civil rights violation warrants dismissal of Hibpshman, McCloud and Taylor. Accordingly, Sgt. Cleveland is the only remaining Defendant.
D. Challenging State Court Conviction
This Court is not a court of appeals for final state court decisions. The majority of Miller’s Opposition (Docket 80) is devoted to arguing against the validity of his convictions for possession of child pornography and tampering with evidence. Miller attaches a number of letters proclaiming his innocence. This Court may not decide “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.”
Moreover, Heck v. Humphrey bars section 1983 claims challenging a conviction or sentence, unless the conviction or sentence has been reversed. To the extent Miller may be challenging the fact or duration of his confinement, he may not do this through a civil rights action, unless and until his conviction has been reversed. In Heck v. Humphrey, the Supreme Court explained:
[A] § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a ...