Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1986)

MEMORANDUM^** 

Carl Dean Swift, an Arizona state prisoner, appeals the district court's sua sponte dismissal of his pro per and in forma pauperis 42 U.S.C. § 1983 action as frivolous under 28 U.S.C. § 1915(d).¹  We affirm.

Swift was transferred from a medium to a maximum security state prison in January of 1985. The Institutional Classification Committee ("ICC") which recommended the transfer explained that, on the basis of confidential information received, Swift was perceived as a threat to the safe and orderly administration of the medium security unit. The gravamen of Swift's complaint is that the revocation of his medium custody status, in the absence of substantiated acts of wrongdoing, constituted a deprivation of liberty without due process.

The threshold inquiry in this type of due process analysis is whether the plaintiff has shown entitlement to a protectible liberty interest. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). Swift argues that the state's actions implicated three such liberty interests. They are: (1) freedom from administrative transfer to a maximum custody prison; (2) freedom from disciplinary transfer to a maximum custody prison; and, (3) freedom from deprivation of good time credits.

Because we conclude that no protectible liberty interest was infringed, we never reach the question whether the process afforded was adequate. See Meachum v. Fano, 427 U.S. 215, 224 (1975).

I Freedom From Administrative Transfer To Maximum Security

The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment does not create a liberty interest to be free from transfer to a maximum security prison absent a state law or practice conditioning such transfers on substantiated acts of wrongdoing or the occurence of other events. Id. at 223-29. For purposes of this appeal, we consider Arizona's state laws and rules governing prisoner classification that were in effect at the time of Swift's transfer. Pursuant to state statute, they were found at Arizona Administrative Code (A.A.C.) R5 1-201 to 5-1-607 (revised August 28, 1986).² 

As we said in Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986), " [b]efore we will recognize a constitutionally protected liberty interest, state law must direct that a given action will be taken or avoided only on the existence or nonexistence of specified substantive predicates." Id. at 1094 (citations omitted).

Arizona has not placed such substantive restrictions on the Director's³  discretion. The regulations in effect at the time Swift was transferred (and the ones currently in effect) vest the Director with the power to reclassify a prisoner without regard to the suggested criteria or procedures when he determines "in his sole discretion, that adherence to the procedures ... may jeopardize the welfare or security of inmates, department of corrections staff or the public." Former Ariz.Comp.Admin.R. & Regs. R5-1-201 (1980); see also Ariz.Comp.Admin.R. & Regs. R5-1-206 (1986).

These regulations do not employ the "shall/unless" or other language of an unmistakably mandatory nature that we found dispositive in Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 845 (9th Cir. 1985) (Arizona has created no liberty interest in early release based on parole considerations) and in Toussaint, 801 F.2d at 1095 (California, through section 2931, has created a liberty interest in the "1 for 2" good-time credits). That the regulations do establish some particularized standards to guide the Director's discretion does not suggest a contrary conclusion as Swift urges. Hewitt v. Helms, 459 U.S. 460, 471 (1983); see Toussaint, 801 F.2d at 1094.

Thus, we conclude Arizona has not created by statute, rule, regulation or otherwise a liberty interest for its prisoners to be free from an administrative transfer from a medium security prison to a maximum security prison.

II Freedom From Disciplinary Transfer to Maximum Security

Swift learned through his appeal to the Classification Administrator that the basis of the ICC's decision was a confidential informant's report that Swift had been involved in an assault of a fellow inmate and had pressured other inmates to do involuntary acts. Based on this information, Swift contends that his transfer was in fact made for disciplinary reasons; he argues that the state cannot escape due process requirements by relabeling a transfer as administrative. Thus, he reasons the state's pre-transfer hearings infringed upon his liberty interest to be free from disciplinary transfers to a maximum security prison.

Although Swift's argument appears to find support in the Fifth Circuit's decision, Parker v. Cook, 642 F.2d 865 (5th Cir. 1981), it runs afoul of the Supreme Court's opinion in Montanye v. Haymes, 427 U.S. 236 (1975). In Montanye, the Court said no pre-transfer hearing is constitutionally required unless the state has created in its inmates the justifiable expectation that they would not be transferred unless found guilty of misconduct or on the occurrence of some event. The Court expressly held that where the state has not created a liberty interest in freedom from interprison transfers for any or no reason at all, it is immaterial whether punitive or disciplinary factors motivated the transfer. Id. at 242-43.

The Parker decision did not address Montanye. Relying instead on Wright v. Enomoto, 462 F.Supp 397 (N.D. Cal. 1967), summarily aff'd, 434 U.S. 1052 (1978), the Fifth Circuit said, "it [is] self-evident that the State of Florida cannot, by merely attaching the label of administrative segregation to its actions, transform what is in substance disciplinary action subject to due process restrictions into administrative action outside the purview of the due process clause." 642 F.2d at 875. Because the consequences of administrative segregation were found to be virtually identical to those of disciplinary segregation and because Florida had created a "liberty interest in being free from arbitrary transfers from the general population to disciplinary segregation", the court required the pre-segregation procedures to comport with those prescribed in Wolff v. McDonnell, 418 U.S. 539 (1974). 642 F.2d at 875-76.

The Parker court focused on one particular statement in Wright. Reading that statement in the context of the full opinion and reconciling it with Montanye leads us to read Wright more narrowly. We believe the finding that California prisoners have a liberty interest in freedom from administrative segregation was critical to its holding. See Wright, 462 F. Supp. at 402-03. The court's decision to require the same process due a disciplinarily segregated prisoner was only in answer to the next inquiry: what process was due. The court decided that because the conditions were the same for administratively segregated prisoners as for disciplinarily segregated prisoners, the same (if not more) process was due them regardless of the label attached to the transfer. Id. at 403-04; see also Sheley v. Dugger, 833 F.2d 1420, 1427 (11th Cir. 1987) (finding first that Florida state prisoners had a liberty interest in remaining in the general prison population and then citing Parker for proposition that procedures required for disciplinary segregation apply when the conditions in administrative segregation are as onerous, regardless of the label attached to the segregation).

As noted earlier, Arizona prisoners do not enjoy a liberty interest in being free from transfers to maximum security prisons for administrative reasons. Therefore, even if the ICC's decision to transfer Swift was motivated by punitive or disciplinary factors, no pre-transfer hearing was constitutionally required. Montanye, 427 U.S. at 242-43.

We note in passing that Swift has not alleged that the restrictions placed on prisoners transferred to maximum security prisons for administrative reasons are the same as those transferred for disciplinary reasons. In sum, we find "no support for [his] contention [s] that prison officials ... used the label 'administrative' to evade due process hearing requirements." Lucero v. Russell, 741 F.2d 1129, 1130 (9th Cir. 1984).

III Freedom from Deprivation of Good-Time Credits

We need not address Swift's last argument that his liberty interest in being free from deprivation of good-time credits was implicated because the record shows that he was not subjected to either the actual or potential deprivation of good-time credits when he went before the ICC.⁴  Although the Arizona regulations empowered the ICC to change a prisoner's parole class from Class I to Class IV, see former A.A.C. R5-1-403, the pre-transfer notice given Swift indicates the ICC was only to consider his possible transfer.⁵  Thus, when the ICC recommended Swift's parole status be changed from Class I to Class IV, it did so in error; the mistake was corrected by the Classification Administrator who assured Swift by letter that Swift had not been placed in Parole Class IV. Letter from Crist, Exhibit F to Complaint.

Whether a hearing in which a prisoner is subjected to the possible but does not suffer the actual deprivation of good-time credits must comport with due process⁶ , we do not decide. Because Swift was not subjected to that possibility, he has no standing to raise the issue.

CONCLUSION

The district court properly dismissed Swift's 1983 action. Swift's claim has no arguable basis in law or in fact: he cannot prove that the state's actions deprived him of any constitutional right.

AFFIRMED.