Unpublished Disposition, 898 F.2d 156 (9th Cir. 1990)

MEMORANDUM^** 

Dennis Fixel, a Nevada state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291 and review de novo the district court's dismissal of a complaint as frivolous. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). A complaint is frivolous where it lacks an arguable basis in law or in fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). We affirm in part, reverse in part, and remand.

* Fixel contends the Nevada pardons board is unconstitutionally composed in violation of the federal doctrine of separation of powers.¹  The federal separation of powers doctrine has not been extended to the states under the fourteenth amendment, and thus the composition of the pardons board is not subject to attack under this doctrine. Bean v. Nevada, 410 F. Supp. 963, 966 (D. Nev. 1974), aff'd, 535 F.2d 542 (9th Cir. 1976). The district court's dismissal of this claim as frivolous was proper and is affirmed. See Neitzke, 109 S. Ct. at 1831.

II

Fixel next contends that by failing to provide him with reasons for denying his application for commutation, the Nevada pardons board deprived him of due process.

Because the due process clause creates no entitlement to specific treatment by prison authorities, a liberty or property interest may be created only through a state's enactment of statutory or regulatory measures that impose substantial limitations on the exercise of official discretion. Hewitt v. Helms, 459 U.S. 460, 469 (1983). When a state pardons board has complete discretion to grant pardons, a prisoner has no constitutionally protected interest beyond the right to seek commutation. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 466-67 (1981).

The Nevada state constitution provides that the state pardons board may commute punishments and grant pardons "subject to such regulations as may be provided by law relative to the manner of applying for pardons." Nev. Const. art. 5, Sec. 14(1) (1982). Under Nevada law, a pardon is the exercise of the sovereign's prerogative of mercy. Pinana v. State, 76 Nev. 274, 352 P.2d 824, 829 (1980). A Nevada prisoner has no constitutionally protected expectation of release before he completes his sentence. Niegarth v. State, 768 P.2d 882, 883 (Nev.1989) (no due process right to clemency); Severance v. Armstrong, 96 Nev. 836, 620 P.2d 369, 370 (1980).

Because the power vested in the pardons board to commute sentences confers no rights on Fixel other than the right to seek commutation, the board cannot be required to explain its reasons for denying Fixel's clemency application. See Dumschat, 452 U.S. at 467. The district court's dismissal of this claim as frivolous was proper and is affirmed. See Neitzke, 109 S. Ct. at 1831.

III

Finally, Fixel seeks to prevent state supreme court judges from reviewing his application for pardon because they previously ruled on the legality of his sentence and to prevent the state attorney general from sitting on the board because he defended the state in Fixel's previous actions.

An impartial decisionmaker is a fundamental requirement of due process. See, e.g., Morrisey v. Brewer, 408 U.S. 471, 489 (1972). Nevertheless, the decisionmaker need not be an uninvolved person from outside of the institution involved in the dispute. See Vitek v. Jones, 445 U.S. 480, 496 (1980); Jordan v. City of Lake Oswego, 734 F.2d 1374, 1376 n. 1 (9th Cir. 1984).

Fixel apparently contends that the board members are institutionally biased because they have a vested interest in denying his application for pardon. He does not allege any personal bias, and thus does not state a due process claim. See Vitek, 445 U.S. at 496. Nevertheless, the district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Here, Fixel may be able to cure the deficiencies of his complaint by amendment to show personal bias. Thus, the district court erred in dismissing Fixel's complaint without allowing him leave to amend.

AFFIRMED in part, REVERSED in part, and REMANDED.