Unpublished Disposition, 931 F.2d 61 (9th Cir. 1987)

MEMORANDUM^** 

Leo Victoria, a Washington state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

We review de novo the dismissal of a complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6). Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). The complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Victoria contends the district court erred in determining he did not have a liberty interest in his parole and in failing to hold an evidentiary hearing on this issue. There is no federal constitutional right to parole. Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7-11 (1979). Although a state may create a protected liberty interest in parole, Washington has not done so. In re Ayers, 105 Wash. 2d 161, 162-64, 713 P.2d 88, 89 (1986) (en banc) (Washington Supreme Court held that there is no protected liberty interest in a prisoner's parole release at the expiration of the inmate's minimum term); see also Wash.Rev.Code Sec. 9.95.115. Thus, because Victoria has no liberty interest in being paroled, it was not necessary for the district court to hold an evidentiary hearing on this issue.

Victoria next contends he was denied due process when the Washington state prison officials deprived him of good time credits without notice and a hearing before the Board of Prison Terms and Paroles. Furthermore, he contends that he was denied due process when, as a result of losing good time credits, the Washington state prison officials extended his mandatory minimum expiration date without notice and a hearing. Victoria argues that only the Board of Prison Terms and Paroles can extend his mandatory minimum sentence, and this is an act not within the province of Washington state prison officials.

Prisoners have a liberty interest in good behavior time credits, provided they have earned the credits under applicable state statutes and procedures. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974); Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989). Once the credits are earned, they cannot be denied without the benefit of minimal due process protections. Wolff, 418 U.S. at 557; Bergen, 881 F.2d at 721.

Under Washington law, every prisoner with a favorable record of conduct, and in whose behalf the superintendent files a report certifying that the prisoner's conduct and work have been meritorious and recommending allowance of time credits to him, shall, upon adoption of the recommendation, be allowed time credit reductions. Wash.Rev.Code Sec. 9.95.070. The mandatory language used in section 9.95.070 creates a liberty interest in receiving good time credits once the prisoner has earned those credits. See Bergen, 881 F.2d at 721-22.

Here, the record indicates that Victoria first became eligible for parole on approximately August 19, 1987. This date was determined by computing 20 consecutive years of confinement since Victoria's date of incarceration, less all good time that Victoria could possibly have earned during that period of incarceration. As of that date, however, the prison superintendent had not recommended Victoria for parole because he had not earned all of his good time for which he was eligible during his period of incarceration. As a result, Victoria's date for parole eligibility was pushed back several months. Based on the Washington statutes, it is clearly within the province of the prison superintendent to recommend or not recommend prisoners receive credit for good behavior, and to recommend or not recommend the prisoner for parole. See In re Piercy, 101 Wash. 2d 490, 681 P.2d 223, 225 (1984) (en banc); see also Wash.Rev.Code Secs. 9.95.070, 9.95.115. It is not a constitutional violation that the superintendent's recommendations may result in a change in the prisoner's eligibility for parole. See In re Ayers, 713 P.2d at 91.

Moreover, an inmate is not entitled to a hearing before the Board if the prison superintendent does not recommend to the Board of Paroles that an inmate receive good time credit for a period of incarceration. See Bergen, 881 F.2d at 722 (discussing In re Piercy, 681 P.2d at 226). An inmate is not entitled to a hearing because " [t]he Board automatically denie [s] ... good time credits in accordance with the prison superintendent ['s] recommendations...." Bergen, 881 F.2d at 722 (quoting In re Piercy, 681 P.2d at 226.) The right to a hearing before the Board attaches only when it revokes good time credits which the inmate has already earned, or could have earned in the future. See Wash.Rev.Code Sec. 9.95.080; see also In re Piercy, 681 P.2d at 226.

In this case, Victoria was charged with several disciplinary infractions of which he was found guilty following disciplinary hearings. These infractions resulted in the superintendent recommending Victoria not receive good time credits for specified periods of his incarceration, and the Board automatically denied good time credits in accordance with the recommendation. The recommendations were made only after Victoria had been given hearings before disciplinary committees and convicted of disciplinary violations. Because Victoria was afforded due process at the disciplinary hearings, the Board was not required to hold a second hearing. See In re Piercy, 681 P.2d at 226. Thus, because Victoria's eligibility for parole was determined in accordance with Washington state law, the district court properly determined that he was not denied due process of law.

AFFIRMED.