Unpublished Disposition, 902 F.2d 1578 (9th Cir. 1990)

MEMORANDUM^** 

After pleading guilty to three counts of attempted sexual assault in 1985, Cassle was sentenced to three consecutive ten year terms. He is a prisoner of the state of Nevada.

His application for parole was denied by the Nevada Board of Parole Commissioners. They gave sound and appropriate reasons for their action. The commissioners have not had custody of Cassle, under the provisions of Nevada law.

Cassle's civil rights complaint against the parole commissioners asserts that he was wrongfully denied parole and that the commissioners failed to provide him with psychiatric treatment. The district court dismissed the complaint with prejudice.

Parole commissioners have "absolute immunity" from suits for damages by prisoners for actions taken when processing parole applications. Sellars v. Procunier, 641 F.2d 1295, 1302-03 (9th Cir.), cert. denied, 454 U.S. 1102 (1981). The district judge was correct in dismissing the parole claim. Cassle has other claims, however.

We construe liberally his pro se complaint and brief on appeal, which includes a prayer that he should be provided with psychological treatment or transfer to a location where he can receive it. He seems to contend that failure to provide such treatment would constitute deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. Under Nevada law, the parole commissioners have no power to provide Cassle with psychiatric care. Nor are they empowered to require his transfer to a location where he can get treatment. Therefore, his complaint failed to state a claim upon which relief can be granted because he failed to name the proper defendant or defendants.

However, the district court erred in dismissing the medical treatment claim with prejudice. Cassle may be entitled to medical treatment if he sues the proper defendants. We vacate the dismissal of this claim, granting Cassle leave to amend.

Cassle's section 1983 complaint also challenges the fact or duration of his confinement. We will treat his complaint to that extent as a habeas petition. See Franklin v. Oregon, 662 F.2d 1337, 1347 n. 13 (9th Cir. 1981). Because he failed to allege that he has exhausted his state remedies, the district court did not err in dismissing this claim, but erred in dismissing it with prejudice. We vacate the dismissal of this claim, granting Cassle leave to amend to demonstrate exhaustion of state remedies.

AFFIRMED in part; VACATED and REMANDED in part.