Unpublished Disposition, 931 F.2d 897 (9th Cir. 1991)

MEMORANDUM^** 

This is a pro se appeal by an Oregon state prisoner. His civil rights action under 42 U.S.C. § 1983 was dismissed by summary judgment when the district judge approved the findings and recommendation of a magistrate judge.

Tedder was sentenced to a term of years for sex offenses. He has served about 10 years of his sentence and sought in this action a recommendation from prison officials to the Board of Parole for early release and a 20% reduction in his term. Our de novo review of the summary judgment requires that we determine whether there are genuine issues of material fact and whether the district court correctly applied the relative substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

Tedder raises these issues:

(1) Was there error in finding that Tedder has no liberty interest in receiving a recommendation for a reduction in his prison term?

(2) Was Tedder's right against self-incrimination violated by the prison's requirement that he participate in a sex offender program as a precondition for recommendation for a reduction in his prison term?

(3) Did prison officials conspire to violate Tedder's civil rights?

(4) Was the reduction of the prison term denied in retaliation for Tedder's filing other civil rights actions?

For the Board of Parole to consider an inmate's request for early release, the inmate must receive a positive recommendation from the institution. Tedder does not challenge the Board of Parole's refusal to grant him a reduction in sentence. Instead he challenges the failure of prison officials to issue a favorable recommendation to the Board.

Tedder has no constitutional or inherent right to be conditionally released before the expiration of his valid sentence. Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989).

Applicable state administrative rules with reference to reductions in prison terms provide:

(a) In accordance with OAR 255-40-025, institution superintendents may recommend parole release date reductions in those cases where an inmate has completed a 5-year period of good conduct and has made demonstrable achievement in dealing with problems present at the time of incarceration.

(b) Self-improvement programs and achievements:

(A) Demonstrable achievements dealing with problems present at the time of incarceration and associated with criminal conduct: the following criteria shall be used to determine if the inmate has made demonstrable achievement:

(i) The inmate should have participated in one or more self-improvement programs appropriate to their need as determined by social services staff (to the extent these programs are available to the inmate) and this participation should have resulted in favorable reports.

Or.Admin.R. 291-44-015(1) (1988).

It is conceded that sex offender treatment programs were available at the Oregon State Penitentiary. Tedder was told by prison officials that he must participate in such a program to be considered for a reduction in his sentence. He failed to participate. He has failed to establish a genuine issue of material fact with reference to the discretionary granting of prison term reductions and summary judgment was proper. Tedder has no liberty interest that was violated.

Tedder's Fifth Amendment claim lacks merit. He contends that his right against self-incrimination was violated by the requirement that he participate in a sex offender program.

Any admissions that he may make during treatment would be privileged under Rule 504 of the Oregon Evidence Code, Or.Rev.Stat. Sec. 40.230, which deals with psychotherapist-patient communications.

An inmate patient's disclosures to a treating therapist are unavailable to the state or federal government to use in a court proceeding. If he chose to undergo treatment, Tedder would not be providing the state with incriminating evidence. See United States v. Harrington, 923 F.2d 1371, 1377 (9th Cir. 1991).

Tedder's claim of retaliation lacks merit. There is no showing that his "writ writing" at the Oregon State Penitentiary was considered in the decision not to recommend him for early release. He does not allege that the requirement that he participate in a treatment program as a prerequisite to receiving a recommendation for early release does not advance legitimate goals of the institution.

We dismiss summarily the conspiracy claim. There has been no showing that there was an agreement to accomplish an illegal objective.

There is absolutely no merit in Tedder's contention that the district judge was biased against him.

AFFIRMED.