                           NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 24 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
DONALD YORK EVANS,                               No. 13-17361

              Plaintiff,                         D.C. No. 3:08-cv-00353-RCJ-VPC

  And
                                                 MEMORANDUM*
JOHN WITHEROW,

              Plaintiff - Appellant,

 v.

HOWARD SKOLNIK; DON HELLING;
WILLIAM DONAT; BRIAN HENLEY;
LEA BAKER; I. CONNALLY; INMATE
CALLING SOLUTIONS; EMBARQ;
GLOBAL TEL LINK,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                      Argued and Submitted December 8, 2015
                             San Francisco, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW, W. FLETCHER, and MURGUIA, Circuit Judges.

      Plaintiff John Witherow appeals the dismissal of his claims under Federal

Rule of Civil Procedure 12(b)(6), the district court’s grant of summary judgment in

favor of the defendants, the district court’s decision to exclude certain testimony at

trial, and the district court’s jury instructions. We affirm on most grounds, but

reverse the district court’s grant of summary judgment on Witherow’s Fourth

Amendment and supervisory claims and remand for further proceedings.

      1.     The district court did not err in dismissing Witherow’s claims against

the three private telecommunications companies. The three companies were not

state actors, and thus Witherow did not state a cognizable § 1983 claim against

them. See Kirtley v. Rainey, 326 F.3d 1088, 1092–96 (9th Cir. 2003). He also did

not state a Wiretap Act claim against the three companies because he did not allege

intentional interception or that the companies were operating outside the ordinary

course of their businesses. See 18 U.S.C. §§ 2510(5)(a), 2511(1)(a), 2520.

      2.     The district court did not abuse its discretion in denying Witherow

leave to amend his complaint against the three private telecommunications

companies. A district court does not abuse its discretion in denying leaving to

amend when “amendment would be futile.” Leadsinger, Inc. v. BMG Music

Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). Because the three companies were not


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state actors, Witherow could not state a § 1983 claim against them. Additionally,

Witherow’s proffered third amended complaint did not cure the deficiencies of his

second amended complaint, showing that amendment of his Wiretap Act claim

would also have been futile.

      3.     The district court did not err in concluding that the Nevada

Department of Corrections’ (“NDOC”) practice of initially screening and

occasionally checking in on inmates’ attorney-client phone conversations fell

within the law enforcement exception to the Wiretap Act. The state laws and

regulations cited by Witherow do not clearly prohibit the NDOC’s practice in Unit

13, and the Institutional Procedure and Post Order provided by the government

authorize it. Thus, the correctional officers were acting “in the ordinary course of

[their] duties” when they screened Witherow’s attorney-client calls. 18 U.S.C.

§ 2510(5)(a).

      4.     The district court did not err in dismissing Witherow’s Fourteenth

Amendment claims. Witherow has failed to provide sufficient evidence that he has

a substantive due process right to private attorney-client calls separate from his

Fourth Amendment claim. Additionally, the district court properly rejected

Witherow’s procedural due process claim under Sandin v. Conner, 515 U.S. 472

(1995).


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      5.     Any error in the district court’s decision to exclude certain aspects of

Evans’ testimony at Witherow’s trial was harmless. See Harper v. City of Los

Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008). Witherow was able to provide the

testimony of two other witnesses — his own and that of Evans’ legal secretary —

on the same issues about which Evans would have testified.

      6.     The district court’s jury instructions were not in error. As explained

above, the district court did not err in its interpretation of the Wiretap Act and the

application of the law enforcement exception.

      7.     The district court erred in concluding that Witherow’s Fourth

Amendment rights were not implicated by the NDOC’s practice of screening and

monitoring inmates’ attorney-client calls. Contrary to the district court’s

conclusion, the fact that Witherow was subjectively “aware” that the NDOC was

screening his calls does not defeat his Fourth Amendment claim. This is a case in

which the “normative inquiry” — not the subjective expectation of privacy —

governs the extent of the Fourth Amendment’s protection. See Smith v. Maryland,

442 U.S. 735, 740 n.5 (1979); United States v. Scott, 450 F.3d 863, 867 (9th Cir.

2005) (citation omitted). Nevada cannot defeat an inmate’s constitutional right to

confidential attorney-client communications simply by informing him that his

communications will no longer be confidential. See Scott, 450 F.3d at 867


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(“[W]here an individual’s subjective expectations had been conditioned by

influences alien to well-recognized Fourth Amendment freedoms, those subjective

expectations obviously could play no meaningful role in ascertaining what the

scope of Fourth Amendment protection was.”) (quoting Smith, 442 U.S. at 740

n.5).

        Because this is a prisoners’ rights case, the fact that the NDOC’s practice

implicated the Fourth Amendment does not mean that Witherow’s constitutional

rights were necessarily violated. See Hrdlicka v. Reniff, 631 F.3d 1044, 1048 (9th

Cir. 2011) (outlining the “two-step analysis” for prisoner constitutional claims).

Rather, Witherow’s Fourth Amendment rights were violated only if the NDOC’s

practice of initially screening and occasionally “checking in” on his legal calls was

not “reasonably related to legitimate penological interests.” Turner v. Safley, 482

U.S. 78, 89 (1987); see also Hrdlicka, 631 F.3d at 1049. We remand for the

district court to address this question in the first instance, giving particular

attention to whether there are “alternative prison policies that could satisfy [the

NDOC’s] objective[s]” in screening the calls. See Demery v. Arpaio, 378 F.3d

1020, 1028 n.2 (9th Cir. 2004).

        8.    The district court may have erred in dismissing Witherow’s claim

alleging that certain higher-level NDOC officials were liable for “their conduct in


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the grievance process.” An allegation that a prison official inappropriately denied

or failed to adequately respond to a grievance, without more, does not state a claim

under § 1983. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing

Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Although the denial of

Witherow’s grievance was not itself a constitutional violation, the grievance may

have put the supervisory officials on notice that officers were violating the Fourth

Amendment. On remand, if the district court determines that officers violated

Witherow’s Fourth Amendment rights, the court should also consider whether the

supervisory officials are liable for their failure to intervene. See Maxwell v. County

of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013).

      AFFIRMED in part, REVERSED in part, and REMANDED.

             Each side is to bear its own costs.




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