Unpublished Disposition, 928 F.2d 1136 (9th Cir. 1987)

MEMORANDUM^** 

Lincoln Lane Addleman brought this action under 42 U.S.C. § 1983 against officers and employees of the prison where he has been incarcerated. Addleman also named as defendants two clerks of the Washington State Supreme Court. Addleman appeals pro se the district court's dismissal of his complaint. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

FACTS

In 1980, Addleman began serving a sentence of fifteen years to life for statutory rape. At his most recent parole hearing in July 1989, the Indeterminate Sentencing Review Board denied him parole, finding him to be "unrehabilitated and not a fit subject to be at large."

Addleman argues this decision means that if he does not get treatment as a sex offender, so that he can be rehabilitated, he won't be paroled. He contends that by denying him sex offender treatment, prison officials are wrongfully lengthening his sentence in violation of his civil rights under the federal Constitution. More generally, Addleman alleges all the defendants are part of a conspiracy to deny him parole.

Addleman also argues he has been denied equal protection of the laws because he has been treated differently from persons convicted of similar offenses after the date of his conviction. In addition to these claims, he contends he was transferred to Twin Rivers Correction Center without due process of law, and that two Washington state Supreme Court clerks have denied him access to that court.

DISCUSSION

A state may not keep a person in prison because of mental illness without providing adequate rehabilitative care. Ohlinger v. Watson, 652 F.2d 775, 778-79 (9th Cir. 1981). Addleman, however, is not being held in prison because of mental illness. He pleaded guilty to a single count of statutory rape in 1980 and was sentenced to a term of fifteen years to life. He was not convicted as a "sex offender." Thus, he has no constitutional right to receive treatment as a sex offender. Hoptowit v. Ray, 682 F.2d 1237, 1255 n. 8 (9th Cir. 1982). The denial of such treatment, therefore, is not a denial of any right protected by the Constitution or laws of the United States and cannot be the basis for a claim under 42 U.S.C. § 1983.

Addleman also claims he has been denied equal protection under the fourteenth amendment because Washington statute RCW 9.94A.120(7) (c) permits offenders convicted of a felony sex offense on or after July 1, 1987 to receive treatment. This, he argues, creates two classes of prisoners: those such as he, who were convicted before July 1, 1987, and those convicted on or after that date. He argues this classification violates his right to equal protection. We disagree. In Foster v. Washington State Bd. of Prison Terms and Parole, 878 F.2d 1233 (9th Cir. 1989), we held there is no equal protection violation when persons sentenced under one system for crimes committed before a certain date are treated differently from those sentenced after that date under a different system. Id. at 1235.

Addleman additionally argues that he was transferred to Twin Rivers Corrections Center from the Washington State Reformatory without due process of law. This argument is meritless. It is well settled that a prisoner has no constitutional right to be incarcerated in a particular prison absent a state law creating a "liberty" interest. Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haynes, 427 U.S. 236 (1976). Washington has not created such a liberty interest.

Finally, Addleman contends two of the defendants, Merritt and Crooks, clerks of the Washington Supreme Court, violated his constitutional rights by denying him access to that court. This argument also lacks merit. Judicial officers are absolutely immune to liability for acts done in their judicial duties. Pierson v. Ray, 386 U.S. 547, 554-5 (1967). This judicial immunity extends to court clerks performing their official duties. See Morrison v. Jones, 607 F.2d 1269, 1273 (9th Cir. 1979). Because the acts Addleman complains of were done within the scope of Merritt's and Crooks' official duties, these defendants are entitled to absolute immunity.

SANCTIONS FOR A FRIVOLOUS APPEAL

Appellees request an award of costs and attorney fees against Addleman for filing a frivolous appeal. See Fed. R. App. P. 38; Olson v. United States, 760 F.2d 1003, 1005 (9th Cir. 1985). An award of attorney fees to prevailing defendants in an action brought under 42 U.S.C. § 1983 is also authorized by 42 U.S.C. § 1988 when the action is groundless, without foundation, frivolous or unreasonable. See Hughes v. Rowe, 449 U.S. 5, 14 (1980).

Addleman's appeal is frivolous. The result is obvious and his arguments of error are wholly without merit. In view of Addleman's present circumstance, however, we decline to enter an order for sanctions at this time.¹ 

AFFIRMED.