Unpublished Disposition, 936 F.2d 579 (9th Cir. 1991)

MEMORANDUM^** 

* INVOLUNTARY DISMISSAL

The district court dismissed, with prejudice, Merle L. Royse's pro se complaint filed under 42 U.S.C. § 1983. Royse alleged the defendants seized and failed to return his law books, precluded him from calling witnesses and confronting a witness against him at his disciplinary hearing, and refused to reinstate him to his job as a law library clerk after infractions against him were dismissed.

We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand for further proceedings.

The district court granted the defendants' motion for summary judgment on Royse's seized law books claim. The court did not, however, inform Royse of the nature of the summary judgment procedure. As a result, we review the dismissal of this claim under Fed. R. Civ. P. 12(b) (6) as a dismissal for failure to state a claim. See Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).

Royse's complaint does not state a section 1983 claim for the seizure of his law books. He alleges only that the law books were not returned to him. This is insufficient. The question is, however, whether it is absolutely clear that the deficiencies of Royse's complaint could not be cured by amendment. Id. If Royse's books were permanently taken from him pursuant to an established state procedure, he would be entitled to due process. Quick v. Jones, 754 F.2d 1521, 1523-24 (9th Cir. 1985). In such event, the fact that a post-deprivation remedy might be available would not be dispositive. See id.; cf. Parratt v. Taylor, 451 U.S. 527, 541-42 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

We conclude it is not absolutely clear that the deficiencies of the seized law books claim could not be cured by amendment. Karim-Panahi, 839 F.2d at 623. Dismissal without leave to amend, therefore, was improper.

Royse alleges he was denied the right to call witnesses and to confront a witness at his disciplinary hearing. The district court dismissed this claim on the ground that it was moot, because the infractions against Royse were dismissed on administrative appeal.

Because Royse would be entitled to recover nominal damages if the disciplinary proceedings failed to comport with due process, this claim was not mooted by the subsequent dismissal of the infractions. See Carey v. Piphus, 435 U.S. 247, 266-67 (1978).

The defendants argue that, even if Royse was not allowed to call witnesses or confront them, there could be no procedural due process violation because he lost only his law library clerk job in the prison, and he had no protected liberty or property interest in that job. We reject this argument. Apart from whether Royse had a protected interest in his prison law library job, he faced other possible sanctions for the alleged disciplinary infractions. See Wash.Admin.Code Sec. 275-88-105 (1983). Accordingly, he was entitled to due process in his disciplinary hearing, and this included the right to call and confront witnesses.

The defendants argue that even if this is so, Royse was in fact allowed to call one witness, and that other witnesses he wanted to call were "unavailable." The defendants did not present this argument to the district court. Because the district court has not had an opportunity to consider the argument, we will not consider it in this appeal.

In sum, it is not clear that Royse could not state a section 1983 claim based upon allegations of a violation of procedural due process resulting from the defendants' alleged refusal to allow Royse to call certain witnesses and to confront an adverse witness in his disciplinary hearing.

Prisoners removed from prison jobs have no due process claim for reinstatement absent a liberty or property interest created by state law that uses unmistakable and explicit mandatory language. Lyon v. Farrier, 727 F.2d 766, 769 (8th Cir.), cert. denied, 469 U.S. 839 (1984). Royse argues Washington has created such a liberty or property interest by Wash.Admin.Code Sec. 275-88-095 (1983). This regulation provides:

Finding of no infraction. If the hearing committee determines that no infraction occurred the resident shall be reinstated to his previous status and all records pertaining to the charge shall be expunged.

Wash.Admin.Code Sec. 275-88-095 (1983) (emphasis added).¹ 

We understand Royse's argument but reject it. Washington has not, by unmistakable and explicit mandatory language, created a liberty or property interest entitling Royse to be restored to his Law Library Clerk job. At best, the language of Wash.Admin.Code Sec. 275-88-095 (1983) is ambiguous.

As an alternative ground in support of this claim, Royse argues that in the district court he contended the defendants refused to reinstate him to his law library clerk job in retaliation for legal actions which he instituted. It appears the district court did not consider this argument when it dismissed this claim. Royse may be able to amend his complaint to state a due process violation based upon the defendants' alleged retaliation, even though he has no constitutionally protected interest in reinstatement. See Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). He should be given the opportunity to do so.

II

VOLUNTARY DISMISSAL

At the time Royse moved for voluntary dismissal of his entire complaint under Fed. R. Civ. P. 41(a) (2), the district court had already dismissed two of the three claims Royse raises in this appeal. His motion, therefore, could only be directed to the third and last remaining claim: reinstatement to the law library job in the prison.

Ordinarily, a district court should grant a Fed. R. Civ. P. 41(a) (2) motion for voluntary dismissal unless a defendant is able to show prejudice will result. See Waller v. Financial Corp. of America, 828 F.2d 579, 583 (9th Cir. 1987). The district court did not consider the defendants' asserted prejudice. It denied Royse's motion on the ground that his claim lacked merit. However, as we have previously stated, it appears that Royse may be able to amend his complaint to state a section 1983 claim based upon the defendants' refusal, due to retaliation, to reinstate him to his prison job.

Because the district court did not consider the defendants' assertion of prejudice, and because we cannot say at this stage of the proceedings whether Royse's reinstatement claim, based on retaliation, is meritless, we remand to the district court for reconsideration of Royse's voluntary dismissal motion.

CONCLUSION

We reverse the district court's dismissal of Royse's complaint with prejudice.²  It is not absolutely clear that the deficiencies of the complaint could not be cured by amendment. We remand the case to the district court with directions to grant Royse leave to amend, and to permit the district court to reconsider Royse's motion for voluntary dismissal under Fed. R. Civ. P. 41(a) (2).

REVERSED and REMANDED.