Appeal from the United States District Court for the District of Arizona Mary H. Murguia, District Judge, Presiding D.C. No. 2:09-cv-01505-
The opinion of the court was delivered by: Wallace, Senior Circuit Judge:
Argued and Submitted October 13, 2011-San Francisco, California
Before: J. Clifford Wallace and Sidney R. Thomas, Circuit Judges, and Lloyd D. George, Senior District Judge.*fn1
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.
On August 1, 1997, Stein pleaded guilty in the Arizona Superior Court to a felony charge of attempted sexual contact 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 post-conviction 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 sen-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 ...