Unpublished Disposition, 855 F.2d 862 (9th Cir. 1987)

No. 88-1538.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and POOLE, Circuit Judges, and DAVID W. WILLIAMS,^**  Senior District Judge.

MEMORANDUM^*** 

While serving a term of imprisonment in the Arizona Corrections System, Mann corresponded with certain prison officials (Appellees) to demand that they furnish him with all the calculations they had used in computing his release date. Appellees, in their capacity as record officers, sent Mann citations to pertinent Arizona law and other information that they felt would answer his inquiry. Mann contended that there were no guidelines that set policy for computing the length of terms prisoners must serve in the Arizona Department of Corrections, but Appellees referred him to Policy 4-2.10.22 issued in 1978. Even this failed to satisfy the inmate, and he filed a complaint in pro se under 42 U.S.C. Section 1983 alleging that he had a liberty interest in being provided all the calculations used to compute the length of his term. He then filed a motion for summary judgment and Appellees filed a cross-motion for summary judgment. On December 22, 1987, the trial judge denied plaintiff's motion, but granted defendant's cross-motion and dismissed the action. This appeal followed.

STANDARD OF REVIEW

We review, de novo, the trial court's grant of summary judgment. Nevada v. United States, 731 F.2d 633, 635 (9th Cir. 1984). Hope v. International Brotherhood of Electrical Workers, 785 F.2d 826, 828 (9th Cir. 1986). This action is properly brought under 42 U.S.C. Section 1983 because it alleges a deprivation of a constitutional liberty right (not to be subject to cruel and unusual punishment in violation of the Eighth Amendment), and Appellees are acting under color of law, Monroe v. Pape, 365 U.S. 167, 172-87 (1961).

When reviewing a grant of summary judgment, an appellate court must determine whether there is any genuine issue of material fact. Ferguson v. Flying Tiger Line, 688 F.2d 1320, 1322 (9th Cir. 1982). The court must also decide whether the district court correctly applied the substantive law in ruling on the motion. Summary judgment is proper when, viewing the evidence in the light most favorable to the party opposing the motion, the movant is entitled to judgment as a matter of law. Id. Moreover, an appellate court can affirm a grant of summary judgment on any ground that appears from the record, even if that ground differs from the one used by the district court. Paskaly v. Seale, 506 F.2d 1209, 1211 n. 4 (9th Cir. 1974).

STATEMENT OF THE CASE

At the outset it should be noted that Appellant does not allege that Appellees have held him in confinement beyond his release date, nor does he dispute the accuracy of the actual time computation prepared by prison officials. There is, therefore, no due process issue before us. Mann's complaint seems to be that the Corrections System has prepared no guideline policy that would standardize calculations of release dates, and that this precludes him from auditing his release date and makes it impossible for other prisoners to do the same.

This Court has not directly addressed this issue in prior decisions. However, in Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1986), similar issues were raised. Haygood was serving two prison terms in the California Corrections System and he quarreled with prison officials as to whether they should be served consecutively or concurrently. The officials took the position that his term for escape should not begin until he had completed his robbery term, but the California Supreme Court later held that this determination was incorrect. The Court cited Section 4531 of the Penal Code and ruled that he should have been released in 1970 rather than 1975. He brought an action under 42 U.S.C. Section 1983 in federal court and recovered judgment against the record officers whose error caused him to be detained overtime. We affirmed this decision en banc holding that Haygood suffered an injury under color of law cognizable under Section 1983, because there was a violation of his liberty which subjected him to cruel and unusual punishment in violation of the Eighth Amendment.

Nothing in Haygood gives Appellee in the instant case a right of access to all of the calculations and computations that Arizona prison officials have used in computing the length of his term. Haygood did not seek an accounting from prison officials of the manner in which his term had been calculated, and the due process right was not raised until Haygood challenged the authorities' claim that his sentences were to run consecutively.

In the present case, we must reject Mann's claim that the failure to furnish him with all of the calculations used to compute his sentence made it impossible for him to compute his release date himself. The evidence shows that the Appellees furnished Mann with all pertinent citations to Arizona law which was used by the System as their guidelines, including reference to Policy 4-2.10.22 (issued in 1978). The Fourteenth Amendment does not guarantee state prisoners a particular method of calculating prison sentences. Wolff v. McDonnell, 418 U.S. 539 (1974); Haygood, supra. But when the state itself creates a statutory right to release from prison, the state also creates a liberty interest and must follow minimum due process appropriate to the circumstances to ensure that liberty is not arbitrarily abrogated. Vitek v. Jones, 445 U.S. 480 (1980). Therefore, if the record officers had made their calculations in a manner which denied Mann his statutory right to liberty without due process of law, a constitutional violation would exist and a cause of action would be available under Section 1983. However, Mann does not claim that he has been denied his liberty. In fact, Mann claims no harm at all.

Appellant's true mission seems to be a crusade to permit him to serve as a monitor to keep the prison recordkeepers' feet to the fire lest they err in future computations of other prisoners' release dates. This noble motive gives Appellant dubious standing before this Court.

AFFIRMED.