Wallace v. Maricopa County Office of the County Attorney

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT THOMAS SAMUEL WALLACE, No. 24-6905 D.C. No. 2:23-cv-01148-SRB-- Plaintiff - Appellant, MTM v. MEMORANDUM* MARICOPA COUNTY OFFICE OF THE COUNTY ATTORNEY, State Agency Phoenix AZ Maricopa County; Maricopa County 4TH AVENUE JAIL, named as: 4th Ave Jail Facility; STATE OF ARIZONA; RACHEL MITCHELL; JAMES H. BAUMAN; TREENA KAY; DAVID FOSTER; PAUL PENZONE, AKA Paul Pensone; BM WILLIAMS, Captain A6290; UNKNOWN GONZALEZ, Detention Officer B1855; MARICOPA COUNTY SHERIFF'S OFFICE, named in caption of Second Amended Complaint as: Maricopa County Sheriff's Department; UNKNOWN MILLER, CBIU #B4897, Defendants - Appellees. Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Submitted July 15, 2025** Before: SILVERMAN, TALLMAN, and BUMATAY, Circuit Judges. Arizona state prisoner Thomas Samuel Wallace appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional violations related to his telephonic and electronic communications while he was a pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We affirm. The district court properly dismissed Wallace’s Fourth Amendment claim because Wallace failed to allege facts sufficient to show that he had a reasonable expectation of privacy in his outbound communications. See United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996) (explaining that “any expectation of privacy in outbound calls from prison is not objectively reasonable and . . . the Fourth Amendment is therefore not triggered by the routine taping of such calls”); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (explaining that although pro se pleadings are to be liberally construed, a plaintiff must present factual allegations sufficient to state a plausible claim for relief). The district court properly dismissed Wallace’s First and Fourteenth ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 24-6905 Amendment claims because Wallace failed to allege facts sufficient to show any violation of his rights. See Wilkinson v. Austin, 545 U.S. 209, 221, 223 (2005) (a state-created liberty interest arises only when the restraint “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”); Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (explaining that the use of a telephone is “a means of exercising” prisoners’ First Amendment “right to communicate with persons outside prison walls”); see also Castro v. County of Los Angeles, 833 F.3d 1060, 1067-68, 1071 (9th Cir. 2016) (holding that pretrial detainees may sue prison officials for injuries under the Fourteenth Amendment and setting forth objective deliberate indifference standard for Fourteenth Amendment claims); Hebbe, 627 F.3d at 341-42. We do not consider arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Wallace’s motion for appointment of counsel (Docket Entry No. 6) is denied. AFFIRMED. 3 24-6905