Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990)

MEMORANDUM^** 

Plaintiff alleges violations of his constitutional rights and of Oregon law because of a two-month delay in his parole revocation hearing and because of alleged denial of access to the courts. The district court dismissed the action on summary judgment.

We review de novo the district court's grant of summary judgment. Gibson v. Prudential Insurance Co., No. 88-6628, slip op. 3369, 3373 (9th Cir. April 23, 1990).

While plaintiff was on parole, a warrant was issued against him on the grounds that he had violated various parole provisions. He was detained and held at the Washington County, Oregon jail from August 18, 1987, until October 22, 1987. On October 16, a parole revocation hearing was held, and the Oregon State Board of Parole recommended revocation. Plaintiff has since remained incarcerated.

Plaintiff sued under 42 U.S.C. § 1983 alleging that his due process rights were violated by the two-month delay in his revocation hearing, and that the warrant for his detention while on parole was invalid. Plaintiff named six defendants in the action: William R. Probstfield, Sheriff of Washington County, Oregon; Jean Bonnie, a deputy sheriff; Sy Kornbrodt, a parole officer employed by the Washington County Department of Corrections; Larry Rutter, a parole hearings officer; Dennis Erickson, a parole hearings officer; and Vern Faatz, chair of the Oregon State Board of Parole.

Although the district court issued summonses and ordered the U.S. Marshal to make service on all of the named defendants, only two--Kornbrodt and Faatz--responded. The district court's dismissal of this action, set forth in its Orders dated November 9, 1988 and April 21, 1989, simply adopted the Findings and Recommendations of a Magistrate, dated August 5, 1988 and January 10, 1989. Those Findings and Recommendations were based solely on Kornbrodt and Faatz' response, and did not address the remaining defendants' failure to respond.

The Magistrate's analysis of the Sec. 1983 claims against Kornbrodt and Faatz was correct: "In order to make out a constitutional claim, [petitioner] must show that the delay in the parole revocation hearing was both unreasonable and prejudiced his rights." Hopper v. United States Parole Com'n, 702 F.2d 842, 845 (9th Cir. 1983). As the Magistrate noted, the Supreme Court has found a delay of two months not unreasonable. Morrissey v. Brewer, 408 U.S. 471, 488 (1972).

While the Magistrate's reasoning may apply equally to some of the other defendants, it is inappropriate to dismiss an action for failure to state a claim when defendants have not responded. See Franklin v. State of Oregon, State Welfare Division, 662 F.2d 1337, 1341-1342 (9th Cir. 1981) ("Franklin I"); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) ("Franklin II"). As we stated in Franklin II, " [t]he defendants have made no response at this point. The IFP [in forma pauperis] plaintiff's sworn allegations are thus uncontroverted and entitled to the usual presumption of truth." Id. Since there is no reference to the non-responding defendants in either the Magistrate's findings or the District Court's orders, we cannot determine the basis for the dismissal. Although plaintiff did not raise the remaining defendants' lack of response below, it is within our discretion to consider the issue, see Community Elec. Service of Los Angeles, Inc. v. National Elec. Contractors Ass'n, Inc., 869 F.2d 1235, 1241 (9th Cir.), cert. denied, 110 S. Ct. 236 (1989). Except where claims are clearly frivolous, Franklin II, supra, we disapprove of sua sponte dismissals, Franklin I, supra, and must ensure that pro se defendants have leave to amend their claims. Eldridge v. Block, 832 F.2d 1132, 1135-1136 (9th Cir. 1987). We therefore remand to the district court for consideration of the claims against the remaining defendants.

We note that the pendent state law claims were dismissed by the district court without prejudice to the cause being refiled alleging violation of Oregon law.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.