Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1988)

MEMORANDUM^** 

This appeal stems from a suit alleging civil rights violations by Idaho state prison officials. Affirmed.

Richard Lambert was sentenced to the Idaho State Correctional Institution. A tentative parole date was canceled for disciplinary violations. He filed a successful state habeas corpus action challenging the procedures used in the disciplinary hearings.

Lambert was offered parole again under an Intensive Supervision Program (ISP) approved by the executive director of the Commission of Probation and Parole. Lambert refused to accept the conditions and filed a second state habeas corpus action protesting that the Commission had not delegated properly its authority. The court agreed. The Commission reevaluated the parole recommendation and itself imposed the intensive parole conditions. Lambert refused to accept the conditions and completed his sentence in custody.

After his release, Lambert sued state correctional agencies and correctional officials, both in their official and individual capacities. The complaint alleged violation of his civil rights, 42 U.S.C. § 1983, the RICO Act, 18 U.S.C. §§ 1961-68, and Idaho law. An amended complaint added his father, E. Vern Lambert, as a party plaintiff. The district court granted summary judgment to eight of the ten defendants, and partial summary judgment to the remaining two.

The district court refused initially to exercise pendent jurisdiction over some state claims. Later it reinstated them, analyzed them on the merits and dismissed them.

The Lamberts allege that the court exceeded its authority in refusing to exercise jurisdiction. This challenge fails. The court accepted pendent jurisdiction eventually. That decision was within its discretion. See In re Nucorp Energy Securities Litigation, 772 F.2d 1486, 1491 (9th Cir. 1985). It dismissed for failure to state a claim. That decision was within its power, Fed. R. Civ. P. 12(b) (6), and is not appealed.

A. Commission of Probation and Parole and Board of Corrections

The district court ruled that the Idaho Commission of Probation and Parole and the Board of Corrections were immune from prosecution under the Eleventh Amendment. The Lamberts argue that these agencies are prison officials and have only qualified immunity.

Absent Idaho's unequivocal consent, federal courts may not entertain suits against the state, its agencies, or departments. U.S. Const. Amend. XI; see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984); Hall v. State of Hawaii, 791 F.2d 759, 761 (9th Cir. 1986).

The Commission and the Board of Corrections are state agencies. Both are authorized and established by state law. The Board is authorized to control, direct and manage the Idaho state penitentiary. Idaho Const. art. 10, Sec. 5. The Commission is a subdivision of the Board of Correction, an executive department. Idaho Code Sec. 20-201(3) (1987).

Both agencies are immune from prosecution under the Eleventh Amendment because the state has not consented to suit.

The district court ruled that the individual defendants were immune from prosecution in their official capacities and all, except Turner and House, were not liable in their individual capacities.

Its rulings with regard to official immunity and denial of summary judgment for Turner and House are not challenged. The Lamberts contend, however, that the court erred by extending Eleventh Amendment immunity to the six other defendants in their "individual capacities."

They misunderstand the court's decision. It did not extend immunity. It granted summary judgment for the six because the complaint failed to state a claim upon which relief could be granted. See infra sections III and IV.

The complaint alleged that the Commission imposed conditions of parole without due process. The court dismissed this claim after ruling that Idaho's parole statute does not create a liberty interest in parole.

To prevail, Richard was required to establish that the defendants deprived him of a constitutional right. See Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc), cert. denied, 106 S. Ct. 333 (1986). He has not sustained that burden.

States may create a liberty interest in parole that is protected by the Fourteenth Amendment. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). We need not decide if such an interest exists because the defendants were not responsible for Lambert's continued incarceration.

He was granted tentative parole, contingent on good behavior in prison, and imposition of appropriate parole conditions. He refused to accept the conditions. He is not entitled to relief because the deprivation, if any, was self-inflicted. See McDonald v. Schweiker, 698 F.2d 361, 361 (8th Cir. 1983).

The defendants' actions here were limited to denying him unconditional parole. To prevail on his claim, Lambert would have to establish a liberty interest in parole without limitation or conditions. He has failed to identify Idaho statutory or regulatory provisions that suggest, let alone create, a liberty interest in unconditional parole. On the contrary, Idaho law recognizes expressly the Commission's power to impose conditions of parole. Idaho Code Secs. 20-223(a), -228 (1987). No process is due when Idaho allows such conditions.

The court ruled that the parole conditions did not violate the constitutional rights to association, freedom of expression, freedom from unreasonable search and seizure, and freedom from deprivation of property without due process.

The sole challenge to these rulings rests on the court's analysis of the liberty interest. Without reaching that question, we conclude that summary judgment for the defendants was proper. The Lamberts failed to state a claim. Fed. R. Civ. P. 12(b) (6).

Lambert's lawful incarceration was not an impermissible interference with his right to free association. " [I]ncarceration itself entails a restriction on the freedom of inmates to associate with those outside of the penal institution." Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 126 (1977). For the duration of his sentence, the Board and Commission had authority to determine the period of incarceration and conditions of parole. Idaho Code Secs. 20-101, -101A, -101B, -101C, -101D, -223(a) (1987). Nothing in the conditions would have inhibited his associational rights. Even if they had, because Lambert could have been kept incarcerated for the full term of his sentence, the decision to grant him conditional parole did not interfere impermissibly.

Other than a conclusory allegation, Lambert has failed to establish a causal connection between the parole conditions and interference with his right to free speech.

Lambert refused to accept the ISP conditions. He was not paroled, and was not subjected to the conditions and defendants did not act pursuant to them. Without a causal connection to the violation of Lambert's constitutional rights, the conditions cannot be the basis for claims of unlawful search and seizure and deprivation of property without due process. See Brower v. Inyo County, 817 F.2d 540, 547 (9th Cir. 1987).

Vern Lambert, Richard's father, protests that the court erred in finding that he lacked standing. The court did not discuss standing. It decided on the merits that his right to association was not violated.

A parent may have a protected liberty interest in the companionship of a child. Smith v. Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), cert. denied, 108 S. Ct. 311 (1987). The state, however, may interfere with the parent-child relationship by "fundamentally fair procedures" and if the interference furthers legitimate state interests. Id. at 1419.

The interference, if any, with Richard and Vern's relationship was caused by Richard's conviction and resulting imprisonment, lawfully imposed by the state court. That interference is not challenged here.

Vern Lambert's present right to association, if any, would derive from his son's right to parole. Richard had no right to unconditional parole. The Commission offered him parole subject to the ISP restrictions, and it had the authority to do so. Idaho Code Secs. 20-223(a), -210 (1987). He refused to accept the conditions, and that decision alone continued Idaho's lawful interference with the father-son relationship. The defendants did not interfere impermissibly with Vern's right of association. The court dismissed his claim properly.

The court dismissed Richard's claim that the Intensive Supervision Program was an ex post facto law. It stated that the conditions were merely alternatives to further incarceration and would not have extended the duration of the sentence.

The ex post facto clause forbids laws that punish acts which were not unlawful when committed or that impose additional punishment to that prescribed. Weaver v. Graham, 450 U.S. 24, 28 (1981). Parole commission guidelines are not laws and are not subject to the ex post facto clause. Roth v. United States Parole Comm'n, 724 F.2d 836, 840 (9th Cir. 1984); Rifai v. Parole Comm'n, 586 F.2d 695, 698 (9th Cir. 1978).

The Commission's guidelines formed the basis for its decision to impose intensive supervision parole. When Lambert was convicted the Commission had broad discretion to impose conditions of parole. Idaho Code Secs. 20-210, -223(a) (1987). The conditions would not have extended the sentence. No ex post facto violation occurred.

Idaho law required that the Lamberts file a notice of claim before pursuing state claims against the state and its employees. Idaho Code Sec. 6-905 (Supp.1988). Richard argues that the court erred by concluding that he was required to file the notice when a state statute precluded him from doing so.

He says he was barred by Idaho statute, id. Sec. 5-230. It is a tolling statute. It allowed him to extend the limitation while he was in prison. It did not restrict his ability to file a notice.

The statute of limitation for filing a claim against a state agency or employee is 180 days from the time the claim arose or should reasonably have been discovered. Id. Sec. 6-905. Lambert had six months after release from prison to file. He did not meet that deadline. The court did not err.

VIII. Collateral Estoppel and Full Faith and Credit

The Lamberts argue that the court should not have allowed relitigation of those issues and legal questions resolved in state habeas actions. The defendants respond that the court's refusal to apply collateral estoppel offensively was proper because most of the defendants and one plaintiff were not parties to the state actions.

The term "collateral estoppel" is often used interchangeably with the term "issue preclusion." Restatement (Second) of Judgments Sec. 27 (1980). It precludes relitigation of issues in a subsequent action between the same parties or those in privity with them. A & A Concrete v. White Mountain Apache Tribe, 781 F.2d 1411, 1417 (9th Cir.), cert. denied, 476 U.S. 1117 (1986). Collateral estoppel, however, cannot be used "offensively against a non-party to the prior action by one who was a party." Id.

Issue preclusion is inapplicable here because the parties and issues were different. Many defendants in the civil rights case were not parties to the habeas actions and had no opportunity to defend. The issues were not the same. In the habeas actions the court decided only that Richard had not been given the process due him at the disciplinary proceeding and that the Commission had not delegated its authority properly. The proof required to sustain the Lamberts' action here is different from that decided in state court.

The court's refusal to apply collateral estoppel was proper.

The Lamberts assert that the court did not grant full faith and credit to the state habeas rulings. The record does not support them. In fact, the court acknowledged the state decisions in its opinion. This allegation has no merit.

The judgment is AFFIRMED.