Unpublished Disposition, 912 F.2d 471 (9th Cir. 1990)

No. 90-15005.

United States Court of Appeals, Ninth Circuit.

Before ALARCON, POOLE, Circuit Judges, and SPENCER M. WILLIAMS^** , District Judge

MEMORANDUM^*** 

Edward Wills, a Nevada prisoner, appeals pro se from the district court's decision to grant appellees' motion for summary judgment filed in response to Wills' 42 U.S.C. § 1983 civil rights complaint. Wills contends that his classification as a sex offender is based upon false information and violates his due process rights. We affirm.

FACTS AND PROCEDURAL HISTORY

In April 1976, Wills was convicted on two counts of first degree murder and sentenced to two consecutive life sentences without possibility of parole. As recited in the presentence report, Wills and his co-defendant, not party to this appeal, in August 1974 took a 13 year old girl and a 15 year old girl to a secluded road. Both girls were raped and then shot. It is unclear from the presentence report whether Wills raped either girl. Wills' co-defendant admitted to raping one of them. On the basis of the report, Wills has been classified as a sex offender and denied transfer to a medium security prison and certain unspecified privileges unrelated to parole and good time credit.

In 1986, Wills filed a complaint alleging that his classification as a sex offender violated his due process rights because he had not been convicted of a sexual offense and had committed no sexual offenses. The district court dismissed his complaint without prejudice as frivolous within the meaning of 28 U.S.C. § 1915(d). In June 1988, Wills refiled his complaint. Appellees responded by filing a motion to dismiss or in the alternative for summary judgment. Having allowed Wills the opportunity to file a brief in opposition to appellees' motions and file additional evidence or affidavits in support of his brief, the district court adopted the magistrate's report and recommendation and report for summary judgment for appellees. This appeal timely follows.

DISCUSSION

The district court's decision to grant summary judgment is reviewed de novo. Travelers v. Budget Rent-A-Car Systems, 901 F.2d 765, 766 (9th Cir. 1990).

On appeal, Wills argues that he never committed, been charged, or convicted of a sexual offense. He argues that the presentence report which implies that he committed a sexual offense is false, and therefore violates his due process rights because it has been relied upon to classify him as a sex offender.

As a general rule, absent a state regulatory system which imposes particularized classification standards or criterion, a prisoner has no constitutional right to a particular classification. Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir. 1985). Wills does not argue a right to a particular classification; he argues for a liberty interest in expunging the false information upon which appellees have based his classification from his presentence report. He cites Paine v. Baker, 595 F.2d 197 (4th Cir.), cert. denied, 444 U.S. 925 (1979), as authority that the due process clause grants him a constitutional right to a corrected presentence report. He also argues that Nevada Revised Statute (NRS) 179 A. 150, which allows a person whose criminal history record contains information relating to sexual offenses to correct that record, provides him a state created liberty interest to a corrected presentence report.

In Paine, the Fourth Circuit held that due process provides a right to have a prisoner's record expunged of incorrect information when the prisoner alleges "(1) that such information is in his file, (2) is false, and (3) that it is relied on to a constitutionally significant degree." 595 F.2d at 201. Paine is not yet accepted as controlling precedent in this circuit. Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987). Nor have we or Nevada yet read NRS 179 A. 150 as creating a liberty interest. See id. at 1318-19 (holding that a similar Washington statute creates a liberty interest in accurate prison records). Nevertheless, even assuming that Paine is cogent authority, and that NRS 179 A. 150 may be argued as creating a liberty interest in accurate prison records, Wills has failed to prove that the information contained in his presentence report is false.

The district court provided Wills ample opportunity to submit additional evidence that this information was false. He did not do so. That Wills believes this information is prejudicial or disagrees with the way in which this information has been evaluated does not prove its falsity. See Paine, 595 F.2d at 201. Uncontroverted is the fact that both girls were raped then murdered. Furthermore, the presentence report contains additional information indicating another sexual offense unrelated to the murder for which Wills was convicted, and this offense Wills does not challenge. Finally, that Wills was not convicted for rape or any sexual offense is irrelevant. Quoting the district court, State of Nevada Department of Prisons Administrative Regulation Number 522 defines sex offender as " [i]nmates serving a sentence for any sexual assault, lewdness, indecent exposure or infamous crime or who have a history of committing such offenses. Conviction of such offenses is not a necessary prerequisite for an inmate's inclusion in this category."

Wills next contends that the grant of summary judgment was premature because he had requested discovery pursuant to Fed. R. Civ. P. 56(f). The record does not clearly show that Wills ever made such a request. However, even assuming that he did, the denial of the request is not grounds for reversal. A simple request for discovery is not enough. Hall v. State of Hawaii, 791 F.2d 759, 761 (9th Cir. 1986). Wills did not state what information he sought and how it would preclude summary judgment. Id.; Garrett v. City and County of San Francisco, 818 F.2d 151, 1518 (9th Cir. 1987).

CONCLUSION

Wills has presented no evidence supporting his argument that the information contained in his presentence report is false. Nor has he shown that he had additional information which would preclude summary judgment although the district court gave him an opportunity to do so. We affirm.

AFFIRMED.