                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                     December 13, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    RICHARD TURAY,                                                 No. 47599-5-II

                       Respondent,

         v.                                                 UNPUBLISHED OPINION

    AL NERIO, MARY REGER, KRISTIN
    CARLSON, TODD DUBBLE, BYRON
    EAGLE, ELENA M. LOPEZ, HOLLY
    CORYELL, JOHN SCOTT,

                       Appellants.

        MAXA, A.C.J. – Eight employees at the Department of Social and Health Services Special

Commitment Center (SCC) appeal the trial court’s denial of their summary judgment motion in a

42 U.S.C. § 1983 lawsuit filed against them by Richard Turay, a detainee at the SCC. Turay’s

lawsuit alleged that the SCC employees had violated his constitutional rights by temporarily

restricting his use of SCC’s telephones based on an allegation that he was making harassing calls

to his mother.1




1
  While review was pending in this court, Turay passed away. Andre Young, as attorney in fact
for Turay, has been substituted as the respondent under RAP 3.2(a). We continue to refer to
Turay as the respondent. Under RCW 4.20.046(1), Turay’s 42 U.S.C. § 1983 claim survives his
death if he has a child. We will consider Turay’s appeal because the SCC employees do not
dispute that Turay has a child and do not argue that Turay’s claim does not survive.
No. 47599-5-II


       We hold that even if the SCC employees violated Turay’s constitutional rights, they are

entitled to qualified immunity from Turay’s lawsuit. We also decline to address Turay’s “cross-

appeal” identified in his brief regarding the trial court’s dismissal of his loss of consortium claim

because he failed to file a notice of discretionary review.2

       Accordingly, we reverse the trial court’s summary judgment order and remand for the

trial court to enter judgment in favor of the SCC employees on Turay’s constitutional claims and

dismiss those claims.

                                               FACTS

       Turay was detained at the SCC as a result of committing multiple sexually violent crimes.

In re Pers. Restraint of Turay, 153 Wn.2d 44, 46, 101 P.3d 854 (2004). He had been detained

there since 1994. Id.

Turay’s Contact with His Mother

       Turay frequently used the pay telephones provided for detainees at SCC to contact his

mother, Betty Turay. Mrs. Turay received care from her granddaughter Ingrid Hunter, who was

her court-appointed guardian.

       In April 2014, Hunter sent an email to Becky Denny, the legal coordinator at SCC, about

Turay’s contact with his mother. Hunter stated that Turay had begun repeatedly calling and




2
  Turay also argues that the SCC employees’ counsel violated the rules of professional conduct
by making material misrepresentations about the record in its opening appellate brief. Turay
claims that SCC’s counsel violated RPC 3.3, which provides that an attorney “shall not
knowingly: (1) make a false statement of fact or law to a tribunal . . . ; [or] (4) offer evidence that
the lawyer knows to be false.” However, this argument is not directly relevant to the issues in
this appeal, we have no authority to consider professional conduct rule violations, and Turay
does not request an award of sanctions. Therefore, we do not address it.


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No. 47599-5-II


harassing his mother. Hunter requested that Denny help prevent Turay from making any more

calls or otherwise contacting his mother.

       On April 15, SCC placed a temporary telephone use restriction on Turay pursuant to its

telephone access policy. The restriction prohibited Turay from using telephones at SCC other

than its legal phones. SCC also prohibited Turay from having any form of contact with his

mother, either personally or through a third party. The restriction lasted for one month, until

May 15.

       Beginning on May 1, Hunter obtained three successive restraining orders prohibiting

Turay or any third party from contacting Hunter or Mrs. Turay. The restraining orders expressly

authorized SCC staff to prevent contact between Turay and his mother. On May 27, SCC

imposed a second restriction, which prohibited Turay from having any contact with Mrs. Turay

personally or through a third party, including through SCC telephones. However, the second

restriction did not prevent Turay from using the facility’s telephones for other purposes.

Turay Lawsuit

       Turay filed a lawsuit against the SCC employees, alleging that the telephone restrictions

violated his telephone use rights and right of association,3 caused a loss of consortium, and

constituted slander and defamation. Turay alleged that, under the “Turay injunction,” he had a

right to adequate and unmonitored phone access, including making and receiving calls.4


3
 Although Turay did not state the legal basis for his constitutional claims, he had a right of
action for such claims only under 42 U.S.C. § 1983.
4
  The Turay injunction, imposed by a federal district court judge in 1994, was the result of prior
litigation between Turay and SCC. See Turay v. Seling, 108 F. Supp. 2d 1148, 1150 (W.D.
Wash. 2000) (providing a history). Among other matters, the injunction required SCC to
“[e]liminate the monitoring of residents’ telephone calls and the bar on outgoing calls (other than


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No. 47599-5-II


       The SCC employees filed a summary judgment motion, seeking dismissal of Turay’s

claims. The trial court granted summary judgment in favor of the SCC employees on Turay’s

loss of consortium, slander, and defamation claims. The trial court ruled that Turay did state a

claim for deprivation of telephone use rights, but required that he file an amended complaint

adequately pleading that claim and clarifying the appropriate dates of the alleged violations. In

response, Turay filed a second amended complaint stating that the challenged restrictions had

been imposed on April 15, 2014 and May 27, 2014.

       Turay and the SCC employees subsequently filed cross-motions for summary judgment.

Turay argued that there was no genuine issue of fact that the SCC employees had violated his

constitutional rights, including those protected in the Turay injunction. The SCC employees

argued that Turay’s constitutional rights had not been violated, that they had not violated a right

established in the Turay injunction, and that qualified immunity applied even if there was a

constitutional violation.

       The trial court denied both parties’ motions. The trial court ruled that there was a

question of material fact as to the reasonableness of SCC’s deprivation of telephone rights. It

also ruled that SCC’s claim of qualified immunity was “unavailable under these circumstances.”

Clerk’s Papers (CP) at 103.

       The SCC employees filed a notice of discretionary review regarding the trial court’s

denial of its summary judgment motion. A commissioner of this court granted review to resolve




collect).” Id. at 1157. In 2007, the district court found SCC to be in compliance and dissolved
the injunction. Turay v. Richards, No. C91-0664RSM, 2007 WL 983132, at *5 (W.D. Wash.
Mar. 23, 2007).


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No. 47599-5-II


both the constitutional and qualified immunity questions. Turay did not file his own notice for

discretionary review. After review was granted, Turay passed away.

                                            ANALYSIS

A.     STANDARD OF REVIEW

       When reviewing a denial of summary judgment, we engage in the same inquiry as the

trial court. Robb v. City of Seattle, 176 Wn.2d 427, 432, 295 P.3d 212 (2013). We review the

evidence and all reasonable inferences from the evidence in the light most favorable to the

nonmoving party. Id. at 432-33. We review issues of law de novo. Id. at 433.

       Summary judgment is appropriate where there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. CR 56(c); Keck v. Collins, 184

Wn.2d 358, 370, 357 P.3d 1080 (2015). “An issue of material fact is genuine if the evidence is

sufficient for a reasonable jury to return a verdict for the nonmoving party.” Keck, 184 Wn.2d at

370. “If reasonable minds can reach only one conclusion on an issue of fact, that issue may be

determined on summary judgment.” Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn. App. 859,

865, 324 P.3d 763 (2014).

B.     QUALIFIED IMMUNITY FROM § 1983 CLAIMS

       1.   Liability Under § 1983

       42 U.S.C. § 1983 provides a cause of action to citizens who have been deprived of their

rights under the constitution and laws by someone acting under the color of state law. It states:

       Every person who, under color of any statute, ordinance, regulation, custom, or
       usage, of any State or Territory or the District of Columbia, subjects, or causes to
       be subjected, any citizen of the United States or other person within the jurisdiction
       thereof to the deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured in an action at law, suit in
       equity, or other proper proceeding for redress.


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No. 47599-5-II


42 U.S.C. § 1983.

         A plaintiff may not bring suit under § 1983 in state court against the state or against a

state official acting in an official capacity because a state is not a “person” subject to suit within

the meaning of § 1983. Wash. State Republican Party v. Pub. Disclosure Comm’n, 141 Wn.2d

245, 285-86, 4 P.3d 808 (2000). Similarly, state agencies are not subject to § 1983 actions.

Hontz v. State, 105 Wn.2d 302, 309, 714 P.2d 1176 (1986). But a plaintiff may assert § 1983

claims against government officials in their individual capacities for actions taken under color of

state law. Republican Party, 141 Wn.2d at 286.

         Many of the cases addressing the constitutional rights of persons detained by the state

concern incarcerated criminal offenders. But Turay was civilly committed. Although those two

types of detainees have similar rights, “[p]ersons who have been involuntarily committed are

entitled to more considerate treatment and conditions of confinement than criminals whose

conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22,

102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982); see also Jones v. Blanas, 393 F.3d 918, 932 (9th Cir.

2004).

         2.   Application of Qualified Immunity

         The SCC employees argue that, regardless of whether they committed any constitutional

violations, they are entitled to qualified immunity because Turay cannot show that the rights he

asserted were clearly established. We agree.

              a.   Legal Principles

         Government officials are entitled to qualified immunity against constitutional claims

brought under § 1983 unless the official’s action violated a clearly established right. See, e.g.,



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No. 47599-5-II


Robinson v. City of Seattle, 119 Wn.2d 34, 64-65, 830 P.2d 318 (1992). Qualified immunity

“ ‘gives government officials breathing room to make reasonable but mistaken judgments about

open legal questions.’ ” Feis v. King County Sheriff’s Dep’t, 165 Wn. App. 525, 531, 267 P.3d

1022 (2011) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S. Ct. 2074, 179 L. Ed. 2d

1149 (2011)). Defendants may establish their entitlement to qualified immunity on a summary

judgment motion. Harrell v. Dep’t of Soc. & Health Servs., 170 Wn. App. 386, 405, 285 P.3d

159 (2012). The entitlement to qualified immunity is a question of law that we review de novo

on appeal. Feis, 165 Wn. App. at 538.

        Once a defendant asserts a qualified immunity defense, the plaintiff has the burden of

establishing the violation of a clearly established constitutional right. Robinson, 119 Wn.2d at

65-66. Specifically, the plaintiff must show that (1) the complaint alleged facts that, taken in the

light most favorable to the plaintiff, showed that an official’s conduct violated a constitutional

right, and (2) the asserted constitutional right was clearly established at the time of the alleged

violation. Feis, 165 Wn. App. at 539-40; see Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.

2151, 150 L. Ed. 2d 272 (2001). When appropriate, we have discretion to decide the issue based

on the second prong without determining whether the defendant has violated a constitutional

right. Feis, 165 Wn. App. at 540.

        Here, we elect to address the second prong of the qualified immunity analysis: whether

the constitutional right that Turay alleges the SCC employees violated was clearly established.

Therefore, we assume without deciding that Turay alleged facts showing that the SCC employees

violated a constitutional right.




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No. 47599-5-II


             b.   Identifying Specific Constitutional Right

       The first step in our qualified immunity analysis is to identify with specificity the

constitutional right at issue. See Feis, 165 Wn. App. at 541-43. “[P]laintiffs seeking to

overcome claims of qualified immunity [must] articulate with particularity the clearly established

right that they allege to have been violated.” Id. at 541. This articulation of a particularized

right must be clear enough that a reasonable official would understand that his or her conduct

would violate that right. Id.

       As a result, a plaintiff must do more than generally identify a broad constitutional

principle in order to avoid qualified immunity. See id. at 542. In Feis, officers searched the

plaintiff’s residence for firearms and seized several of them after the plaintiff was arrested on

domestic violence charges. Id. at 534-36. In a subsequent § 1983 action against the officers, the

plaintiff framed the constitutional right at issue as the general Fourth Amendment guarantee not

to have his home subjected to an unreasonable search. Id. at 542. The court stated that “the

particularized right allegedly violated must be far more specific than simply the right to be free

from unreasonable searches and seizures.” Id. Instead, the court reframed the constitutional

right as incorporating the specific facts of that particular case. Id.

       Here, Turay alleges that the SCC employees violated his First Amendment and

procedural due process rights by restricting his telephone access without notice, a hearing, or an

appeal process. Although this allegation is fairly specific, the articulation of the constitutional

right at issue must include the specific facts of the case. See Gallegos v. Freeman, 172 Wn. App.

616, 629, 291 P.3d 265 (2013) (requiring a “ ‘parallel or comparable factual pattern’ ” for a right

to be clearly established (quoting Fogel v. Collins, 531 F.3d 824, 833 (9th Cir. 2008)).



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No. 47599-5-II


Accordingly, we frame the constitutional right SCC allegedly violated as temporarily restricting

Turay’s telephone access for non-legal calls without notice, a hearing, or an appeal process based

on an allegation that Turay had been repeatedly calling and harassing his mother.5

            c.   Absence of Clearly Established Right

       A constitutional right is clearly established when “existing precedent has placed the

statutory or constitutional question raised by an alleged violation ‘beyond debate.’ ” Feis, 165

Wn. App. at 543 (quoting al-Kidd, 563 U.S. at 741). A clearly established right must be based

on (1) controlling authority from the United States Supreme Court, or (2) a robust consensus of

precedent from courts throughout the United States. Feis, 165 Wn. App. at 543, 549; see also al-

Kidd, 563 U.S. at 741. A “robust consensus of precedent” means more than a decision from a

single federal circuit court, even the Ninth Circuit Court of Appeals. Feis, 165 Wn. App. at 547.

       Here, Turay has failed to cite any controlling Supreme Court authority establishing that a

detainee’s telephone use cannot be temporarily restricted without notice, a hearing, or appeal

rights when imposed for the purpose of preventing that detainee from making harassing phone

calls. Therefore, the question is whether Turay can show a national consensus of precedent

regarding the right to telephone access under these circumstances.

       Turay has failed to show a robust consensus of precedent. First, Turay claims that the

1994 Turay injunction placed SCC officials on notice that civil detainees had a constitutional

right to telephone access. But the relevant portion of that injunction simply required SCC to stop

monitoring detainees’ telephone calls and to allow outgoing calls. Turay v. Seling, 108 F. Supp.


5
  We focus on the first restriction imposed on April 15, 2014, which was broader than the second
restriction imposed on May 27. If the first restriction did not violate a clearly established
constitutional right, the narrower second restriction necessarily did not as well.


                                                9
No. 47599-5-II


2d 1148, 1156-57 (W.D. Wash. 2000). The injunction did not address whether a temporary

telephone ban for non-legal calls intended to prevent harassing telephone calls violated the

detainees’ constitutional rights.

       Second, Turay relies on Keenan v. Hall, in which the Ninth Circuit stated that

“[p]risoners have a First Amendment right to telephone access, subject to reasonable security

limitations.” 83 F.3d 1083, 1092 (9th Cir. 1996). However, the statement was dicta and the

court in Keenan did not hold that a detention facility could not temporarily restrict a detainee’s

telephone access to address a harassment allegation. The two other Ninth Circuit cases Turay

cites also did not address a temporary telephone restriction under the facts of this case. See

Henry v. County of Shasta, 132 F.3d 512, 519, amended on denial of reh’g, 137 F.3d 1372 (9th

Cir. 1997); Carlo v. City of Chino, 105 F.3d 493, 496 (9th Cir. 1997).

       Further, the Ninth Circuit in Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir. 2002),

questioned the statement in Keenan and the two cases citing that statement upon which Turay

relies. The court stated:

       The genesis of this purported constitutional right to use a telephone is obscure. Our
       cases have not identified the source of the right, and our pronouncements of its
       existence have been conclusory and unnecessary to the decisions.

Id. at 1048 (citation omitted). The court held that the temporary restriction of the plaintiff’s

telephone access in that case did not violate the First Amendment. Id. at 1048-49.

       Third, even if the Ninth Circuit had adopted a rule that a detainee has a constitutional

right to telephone access under these circumstances, Turay has made no effort to show a national

consensus on this issue. Other than the three cases that Valdez arguably discredited, Turay cites

to no other authority to support his alleged constitutional right to unrestricted telephone access.



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No. 47599-5-II


          Finally, regarding the due process component of his claim, Turay cites no authority

establishing that a detainee has a constitutional right to notice, a hearing, or an appeal process

before his or her telephone access can be temporarily restricted in order to prevent harassing

telephone calls. Even if he could cite some authority for this proposition, he certainly has not

shown any national consensus of authority on this issue.

          We hold that Turay has not shown that there is a clearly established constitutional right

that prohibits a detention facility from temporarily restricting a civil detainee’s telephone access

without notice, a hearing, or an appeal process in order to address allegations of harassing

telephone calls. Accordingly, we hold that the SCC employees are entitled to qualified immunity

from Turay’s 42 U.S.C. § 1983 claims.

C.        TURAY’S CROSS APPEAL

          In a section of his brief entitled “cross appeal,” Turay argues that we should reverse the

trial court’s dismissal of his claim for loss of consortium. However, RAP 5.1(d) requires that a

party seeking cross review file a notice of appeal or notice for discretionary review to obtain

affirmative relief. Houk v. Best Dev. & Const. Co., 179 Wn. App. 908, 915, 322 P.3d 29 (2014).

Turay did not file a notice for discretionary review when SCC filed its notice of discretionary

review. Therefore, we do not consider Turay’s argument.

                                            CONCLUSION

          We reverse the trial court’s denial of summary judgment and remand for entry of

judgment in favor of the SCC employees on Turay’s constitutional claims and dismiss those

claims.




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No. 47599-5-II


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, A.C.J.


 We concur:




 JOHANSON, J.




 MELNICK, J.




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