FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALAN STEIN, AKA Allen Stein, 

Plaintiff-Appellant,

v.

CHARLES RYAN, Director of No. 10-16527

Arizona Department of

D.C. No. Corrections; MAGGIE URENA,

 2:09-cv-01505- Arizona Time Computation Unit

Supervisor; STATE OF ARIZONA; MHM

DORA SCHIRO; JANE DOE RYAN; OPINION

JOHN DOE SCHIRO; JOHN DOE

URENA; JOHN DOES I-X; JANE DOES

I-X; XYZ ENTITIES I-V,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

Mary H. Murguia, District Judge, Presiding

Argued and Submitted

October 13, 2011—San Francisco, California

Filed November 18, 2011

Before: J. Clifford Wallace and Sidney R. Thomas,

Circuit Judges, and Lloyd D. George,

Senior District Judge.*

Opinion by Judge Wallace

*The Honorable Lloyd D. George, Senior District Judge for the U.S.

District Court for Nevada, sitting by designation. 

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COUNSEL

Daniel Christopher Gregory, Esq., Gregory Law Firm, PC,

Surprise, Arizona; Thomas Norman O’Leary (argued), Phoenix, Arizona, for the plaintiff-appellant.

Daniel Patrick Schaack, Esq., Assistant Attorney General,

Arizona Attorney General’s Office, Phoenix, Arizona, for the

defendants-appellees.

OPINION

WALLACE, Senior Circuit Judge:

Alan Stein appeals from the judgment of the district court

dismissing his action against the State of Arizona and individual officials employed by the Arizona Department of Corrections (Department) for alleged negligence and alleged

violations of his civil rights. The district court held that Stein

failed to state a claim for which relief can be granted. We

have jurisdiction to review the district court’s judgment under

28 U.S.C. § 1291. We affirm.

I.

On August 1, 1997, Stein pleaded guilty in the Arizona

Superior Court to a felony charge of attempted sexual contact

20238 STEIN v. RYAN
with a minor. His offense occurred between October 15, 1995

and October 26, 1996. The judge suspended sentence, placed

Stein on lifetime probation, and ordered that he spend one

year in jail. Stein did not appeal his conviction or sentence.

On February 9, 2006, Stein appeared in Arizona Superior

Court to respond to a charge that he had violated the terms of

his probation. The court revoked Stein’s probation and sentenced him to ten years in prison. Stein did not appeal his sentence. However, he later filed a petition for post-conviction

relief.

On November 3, 2008, while Stein’s petition for postconviction relief was pending, the Arizona Supreme Court

issued State v. Peek, holding that the statutes in effect

between 1994 and 1997 authorized lifetime probation for certain completed offenses against children, but did not authorize

lifetime probation for attempted child molestation. 195 P.3d

641, 643 (Ariz. 2008). The parties agree that under Peek, the

maximum probationary period authorized for Stein’s 1997

conviction was five years. Thus, when Stein was sentenced in

February 2006, he had already been on probation longer than

authorized by statute. On February 23, 2009, the superior

court vacated Stein’s sentence, discharged him from probation, and ordered him released. In sum, Stein spent just over

three years in prison pursuant to an erroneous sentence.

Stein filed a complaint in Arizona Superior Court requesting the State of Arizona and certain individuals employed by

the Department to pay damages for the time he spent in prison

pursuant to an illegal sentence. The defendants removed the

action to the district court and moved to dismiss the case

under Federal Rule of Civil Procedure 12(b)(6). Stein filed an

amended complaint which prompted the defendants to again

move for dismissal. The district court dismissed all of Stein’s

claims with prejudice. It also held that Stein had failed to state

a claim of negligence against the State of Arizona because,

while the Department had a duty to ensure that his prison senSTEIN v. RYAN 20239
tence was calculated correctly, it had no duty to review the

legality of his sentencing order. It held that Stein had not

alleged facts to support a claim for infliction of emotional distress. With respect to Stein’s claim against the individual

defendants brought under 42 U.S.C. § 1983, the district court

concluded that they were protected by qualified immunity.

The district court also held in the alternative that Stein had

failed to allege that they were liable based on their own

actions.

Stein does not appeal from the dismissal of his claim for

infliction of emotional distress. Rather, he argues that the district court erred in dismissing his claims for negligence and

violation of his constitutional rights. We review the dismissal

of Stein’s claims de novo. Cousins v. Lockyer, 568 F.3d 1063,

1067 (9th Cir. 2009).

II.

[1] In order to recover on his state law negligence theory,

Stein needed to prove four elements: “(1) a duty requiring the

defendant to conform to a certain standard of care; (2) a

breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury;

and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230

(Ariz. 2007). Stein’s theory was that, upon receiving him into

custody, the Department had a duty to identify the statute

under which Stein had been sentenced and compare it to the

sentencing order to ensure that his sentence was legal. Stein

alleged that the Department failed to make this inquiry, causing him to spend three years in prison pursuant to an illegal

sentence. 

The district court rejected Stein’s contention that the

Department has a duty to review the legality of sentencing

orders. Under Arizona law, the authority to control a sentence

is distributed “so that the court, the department of corrections

and the parole board each serves its purpose, and within its

20240 STEIN v. RYAN
specified sphere of competence, individualizes the sentence.”

State v. Harris, 648 P.2d 145, 146 (Ariz. Ct. App. 1982).

Courts impose the sentence, and the parole board or the

Department (as the case may be) determine whether or not a

prisoner is eligible for release. Id. While the Department must

determine whether a prisoner is eligible for release pursuant

to the terms of a sentencing order, that does not mean that it

must review the legality of the prisoner’s sentencing order.

Just as a court has no authority to order the Department to

release a prisoner prior to the expiration of the sentence, “but

could only sentence him to a definite term of years in prison,”

id., the Department has no authority to refuse to enforce a

sentence issued by a competent court. The review of sentencing orders is a judicial function, and the Arizona Constitution

gives the authority to perform judicial functions exclusively

to Arizona’s judicial department. Ariz. Const. art. 3.

[2] Stein’s theory is that the Department had a duty to discover that the superior court imposed an illegal sentence and

that the Department’s failure caused him damage. We do not

believe that the Arizona Supreme Court would hold that the

Department—an agency within Arizona’s executive

department—has the authority, much less the duty, to ensure

that judicial orders comply with the law. The district court

properly dismissed Stein’s negligence claim.

III.

Stein also sought recovery under 42 U.S.C. § 1983 for

alleged violations of his Eighth Amendment right to be free

from cruel and unusual punishment and his Fourteenth

Amendment right to due process. Stein’s theory is that the

defendants subjected him to cruel and unusual punishment

and deprived him of liberty without due process by imprisoning him pursuant to an illegal sentencing order. According to

Stein, if the defendants had properly calculated his sentence,

they would have been obliged to release him immediately

rather than hold him for three years.

STEIN v. RYAN 20241
Under certain circumstances, wrongful imprisonment may

support a claim under 42 U.S.C. § 1983. An action under section 1983 has two essential elements: “(1) the defendants

acted under color of law, and (2) their conduct deprived [the

plaintiff] of a constitutional right.” Haygood v. Younger, 769

F.2d 1350, 1354 (9th Cir. 1985). Obviously, officers of a

state’s department of corrections who imprison a person in the

state’s prison do so under color of law. Such imprisonment

violates the prisoner’s rights under the Fourteenth Amendment if the prisoner does not first receive due process of law.

Since imprisonment is punitive, officials who detain a person

may violate that person’s rights under the Eighth Amendment

if they act with deliberate indifference to the prisoner’s liberty

interest. Id.

The district court held that the individual defendants were

entitled to qualified immunity and, in the alternative, that

Stein failed to state a claim because he did not allege any personal involvement by the individual defendants. Because we

hold that the district court properly concluded that the defendants enjoy qualified immunity, we need not decide whether

the claim was properly dismissed for failure to allege that the

defendants were liable based on their own actions.

[3] A public official is immune from an action under 42

U.S.C. § 1983 “[u]nless the plaintiff ’s allegations state a

claim of violation of clearly established law.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982) (qualified immunity applies if official’s conduct “does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known”). In order to determine whether the defendants

are immune from an action, the court must answer two questions: (1) whether Stein alleged the violation of a constitutional right, and (2) whether that right was clearly established.

Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (leaving

the courts to decide, in their sound discretion, which question

to answer first). A right is “clearly established” if its contours

20242 STEIN v. RYAN
are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). Also, the right must be

defined “at the appropriate level of specificity.” Cousins, 568

F.3d at 1070, quoting Wilson v. Layne, 526 U.S. 603, 615

(1999).

Defining his claims at the appropriate level of specificity,

Stein asserts a constitutional right not to be incarcerated pursuant to a sentencing order if that order is later determined to

be invalid. It is undisputed that, in light of Peek, Stein’s sentencing order was invalid. However, we hold that he did not

have a constitutional right to be released prior to the time his

sentence was vacated.

[4] Stein did not allege a violation of his rights under the

Fourteenth Amendment. The Constitution permits states to

deprive a person of liberty as long as the person first receives

due process. See Haygood, 769 F.2d at 1357 (“Process which

precedes a loss of liberty obviously prevents a constitutional

violation”). “The fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319,

333 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965).

[5] Stein had an opportunity to be heard before he was

convicted and placed on probation. He also could have

appealed the order that erroneously set the term of his probation for the rest of his life. He had another opportunity to be

heard before the court sentenced him to ten years imprisonment. He then could have appealed that order. He was

afforded the opportunity to seek post-conviction relief and

ultimately secured his release. Stein did not allege that he was

ever denied an opportunity to be heard at a meaningful time

and in a meaningful manner. Under Mathews, he received all

the process that was due to him.

STEIN v. RYAN 20243
[6] Stein argues, however, that the process he received was

not enough. He contends that the defendants—members of the

executive branch—should have reviewed his sentence sua

sponte and concluded that his detention was illegal. Stein

offers no authority requiring prison officials to review sentencing orders independently to make sure the court got it

right. Prison officials may properly assume that they have the

authority to execute the sentencing orders delivered to them

by the court without fear of civil liability. Thus, Stein did not

allege any violation by the defendants of his rights under the

Fourteenth Amendment.

[7] Stein’s Eighth Amendment claim fares no better. His

allegation that prison officials should have discovered that his

sentence was illegal does not establish that they acted with

deliberate indifference to his liberty interest. Prison officials

have the duty to execute the sentencing orders delivered by

the courts. They may have a duty to calculate accurately the

prisoner’s release date according to the terms of a sentencing

order, but no reasonable prison official would understand that

executing a court order without investigating its potential illegality would violate the prisoner’s right to be free from cruel

and unusual punishment.

The district court reasoned that “an official would not have

known that a term of lifetime probation for the crime of

attempted sexual assault with a minor was unlawful as there

was no clearly established law so holding until Peek.” Stein

v. State of Arizona, No. CV 09-1505-PHX-MHM, 2010 WL

2541136, at *6 (D. Ariz. June 18, 2010). This reasoning does

not mean that defendants may have violated Stein’s rights by

detaining him for the nearly four months between the time the

Arizona Supreme Court issued Peek and the time Stein’s sentence was vacated.

[8] Peek made clear that Stein was entitled to have his sentence vacated as a matter of Arizona law. However, prison

officials have a duty to enforce a sentencing order until the

20244 STEIN v. RYAN
order is vacated or the prisoner otherwise becomes eligible for

release. To say that defendants should have released Stein as

soon as the Arizona Supreme Court decided Peek (or at any

time prior to the court’s order vacating sentence) would be to

impose on them the judicial responsibility of reviewing the

legality of a sentencing order. In other words, Peek may have

given Stein the right to have his sentence vacated, but it was

the vacatur of his sentence by the court hearing his case that

gave him the right to be released. Even if Peek made it clear

that Stein’s sentence was erroneous, defendants did not violate his constitutional rights by holding him in prison while

the sentencing order remained in force. Because Stein did not

allege a violation of his Eighth or Fourteenth Amendment

rights by defendants, they are immune from an action.

IV.

Stein failed to state a claim upon which relief can be

granted. The district court, therefore, properly dismissed the

action. The judgment of the district court is AFFIRMED.

STEIN v. RYAN 20245