Lonnie Kocontes v. Orange County Sheriff's Depart

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 5, 2022
• Docket: 21-55074
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 5 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LONNIE KOCONTES, No. 21-55074

Plaintiff-Appellant, D.C. No. 8:19-cv-01968-PSG-PLA v.

ORANGE COUNTY SHERIFF’S MEMORANDUM* DEPARTMENT; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding

Submitted December 7, 2021** Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and BENCIVENGO,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designation. Lonnie Kocontes appeals the district court’s order dismissing his complaint

for failure to state a claim without leave to amend. Kocontes sued Orange County

(“OC”), acting through the Orange County Sheriff’s Department, and Global

Tel*Link (“GTL”), alleging that they violated his constitutional and state law

privacy rights while he was incarcerated in Orange County Jail awaiting trial. We

have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Kocontes’s operative Second Amended Complaint (“SAC”) alleged eight

causes of action. His first claim alleged that OC and GTL violated the First, Fifth,

Sixth, and Fourteenth Amendments when they recorded his privileged confidential

phone calls with his attorneys and shared them with state prosecutors. His second

claim alleged that OC violated the First and Sixth Amendments when they opened

his privileged legal mail outside his presence and delayed its delivery. The district

court did not err in holding that these two claims, to the extent they were seeking

damages, were barred by Heck v. Humphrey because success on the merits would

necessarily impugn his first-degree murder conviction. 512 U.S. 477, 487 (1994).

Kocontes’s requests for injunctive relief under these claims are moot because he

2 has been sentenced to life in prison without the possibility of parole, and therefore

has no reasonable likelihood of returning to the custody of Orange County.1

The district court did not err in dismissing Kocontes’s claim that his sex

offender custody classification violated his constitutional right to due process.

Kocontes did not allege that he was required to engage in any required sex offender

treatment, and the other adverse consequences alleged were minimal. He therefore

did not state a plausible claim for relief under Neal v. Shimoda, 131 F.3d 818,

829–30 (9th Cir. 1997). The district court also did not err in dismissing

Kocontes’s claim that the jail’s disciplinary procedures violated his due process

rights. Kocontes alleged only a temporary loss of privileges, which does not

constitute a deprivation of a significant liberty interest in the jail environment

triggering the procedural due process requirements set forth in Wolff v. McDonnell,

418 U.S. 539, 572 n. 19 (1974).

The district court did not err in dismissing Kocontes’s claim that OC and

GTL violated the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code §§

636(a), 637.2(a), when they recorded his phone calls with his attorneys.

Kocontes’s allegations, when read in the light most favorable to him, provide only

1 We grant Orange County’s motion for judicial notice of the fact that Kocontes is now in the custody of the California Department of Corrections and Rehabilitation (Docket Entry No. 19). 3 a “conceivable” rather than a “plausible” account that the recordings of his

privileged conversations with his attorneys were made in violation of CIPA.

Ashcroft v. Iqbal, 556 U.S. 662, 678–81 (2009).

Kocontes’s additional state law claims against OC—alleging that its

recording of his phone calls violated the California Unfair Business Practices Act

and constituted common-law torts of fraudulent concealment and negligence—are

all barred because OC is a governmental entity. See Leider v. Lewis, 2 Cal. 5th

1121, 1132 n. 9 (2017); see also Miklosy v. Regents of California, 44 Cal. 4th 876,

899 (2008). Kocontes’s state law claims against GTL also fail because his SAC

does not allege any plausible factual or legal basis to show that GTL committed an

unfair business practice or had a duty to disclose the recordings to him.

The district court did not err in dismissing Kocontes’s SAC without leave to

amend. Kocontes filed his first and second amended complaints while represented

by counsel. Our de novo review uncovered no basis on which to find that further

amendment would not be futile. See Thinket Ink Info. Res., Inc. v. Sun

Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004); see also Chodos v. West

Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (noting that the district court’s

discretion to dismiss a complaint without leave to amend is particularly broad

where a plaintiff has previously been permitted leave to amend). Finally, the

4 district court did not abuse its discretion in not staying Kocontes’s case sua sponte

while he pursued a direct criminal appeal.

AFFIRMED.