Unpublished Disposition, 899 F.2d 19 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1988)

James PARHAM, Plaintiff-Appellant,v.ARIZONA BOARD OF PARDONS AND PAROLES, Defendant-Appellee.

No. 89-15616.

United States Court of Appeals, Ninth Circuit.

Submitted March 16, 1990.* Decided March 21, 1990.

Before JAMES R. BROWNING, ALARCON and POOLE, Circuit Judges.


James Parham appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 as frivolous. We review de novo, Jackson v. State of Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm.

Parham's complaint alleged that he became eligible for work furlough on November 1, 1988, but for reasons not part of the eligibility criteria, his application for the furlough was denied. The district court dismissed the complaint sua sponte because it found that Parham had no constitutionally protected liberty interest in work furlough.

Parham contends that the district court erred in dismissing his complaint because the language of Ariz.Rev.Stat. Sec. 31-233(c) and Arizona's Department of Corrections Internal Management Policy 303.7 created a protected liberty interest. This contention fails.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989).1  A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Id. Generally, the district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). However, if it is absolutely clear that the deficiencies of the complaint cannot be cured, the district court may dismiss the complaint without granting leave to amend. Id.

The district court was correct in dismissing Parham's complaint without allowing him leave to amend. A prisoner has no liberty interest in being conditionally released from prison before the expiration of his valid sentence. See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). Moreover, the statute and Internal Management Policy create no liberty interest because their standards are discretionary rather than mandatory. See Hewitt v. Helms, 459 U.S. 460, 472 (1983). Section 31-233(c) provides, " [t]he board of pardons and paroles ... may authorize the release of an inmate on work furlough" (emphasis added). Arizona Department of Correction Internal Management Policy 303.7, 1.0 provides, " [i]nmates who meet statutory requirements and specific eligibility criteria may be granted a work furlough by the Arizona Board of Pardons and Paroles" (emphasis added). Policy 303.7, 4.0 defines work furlough as " [a] conditional, discretionary release granted to eligible inmates by the Arizona Board of Pardons and Paroles" (emphasis added). Finally, because Parham can allege no facts to show he had a liberty interest in a furlough, the deficiencies of the complaint are not curable by amendment. See Noll, 809 F.2d at 1448.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The district court dismissed Parham's complaint sua sponte before service of process. We interpret this dismissal as a dismissal under 28 U.S.C. § 1915(d). See Jackson, 885 F.2d at 640