Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

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

Diaz v. State, Dept. of Corrections (10/1/2010) sp-6516, 239 P3d 723

       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 

                                                 -2-                                            6516
 

----------------------- Page 3-----------------------

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). 

                                             -3-                                          6516 

----------------------- 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. 

                                                   -4-                                               6516 

----------------------- Page 5-----------------------

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...) 

                                                    -5-                                                 6516 

----------------------- Page 6-----------------------

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. 

                                                   -6-                                             6516
 

----------------------- Page 7-----------------------

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...) 

                                               -7-	                                          6516 

----------------------- Page 8-----------------------

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...) 

                                                   -8-                                                6516 

----------------------- Page 9-----------------------

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)). 

                                                -9-                                           6516
 

----------------------- Page 10-----------------------

"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). 

                                                   -10-                                              6516
 

----------------------- Page 11-----------------------

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. 

                                                  -11-                                            6516
 

----------------------- Page 12-----------------------

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). 

                                                   -12-                                              6516
 

----------------------- Page 13-----------------------

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...) 

                                                   -13-	                                              6516 

----------------------- Page 14-----------------------

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."). 

                                                    -14-                                              6516
 

----------------------- Page 15-----------------------

"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. 

                                                  -15-                                             6516
 

----------------------- Page 16-----------------------

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...)
 

                                                  -16-                                              6516 

----------------------- Page 17-----------------------

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...) 

                                                  -17-	                                               6516 

----------------------- Page 18-----------------------

       47      (...continued) 

under      1983   or   the   DOC   officers'   argument   that   they   were   entitled   to   qualified 
immunity. 

                                                  -18-                                              6516 
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC