Unpublished Disposition, 935 F.2d 274 (9th Cir. 1983)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1983)

Raymond Wayne HOWELL, Jr., Plaintiff-Appellant,v.Gregory ROBERDS, et. al, Defendants-Appellees.

No. 90-16806.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM** 

Raymond Wayne Howell, Jr., a former Arizona state prisoner, appeals pro se the district court's dismissal under Fed. R. Civ. P. 12(b) (6) of his 42 U.S.C. § 1983 action for damages against the director, assistant director, and time computation officers at the Arizona Department of Corrections. We review de novo, Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987), and we affirm.

While still in prison, Howell filed a petition for post-conviction relief in Maricopa Superior Court, alleging that the court had imposed his sentence erroneously in its sentencing order dated February 9, 1983. The sentencing order stated that Howell had been found guilty of theft in violation of various Arizona statutes and Arizona Rev.Stat. Sec. 13-604.01 (now renumbered 13-604.02), which provides that a person who is convicted of a felony while on parole is not eligible for parole. Although Howell apparently had been on parole for a previous offense, he had been discharged from parole some time before he was convicted of the offense of theft. Accordingly, the court granted his petition and deleted the reference to section 13-604.01. As a result, Howell was released from prison after having served three months more than he should have under the terms of his correct sentence.

Howell then filed this section 1983 action against the prison officials, seeking damages for their failure to "correct the error in plaintiff's time computation." He alleged that he told the prison officials well in advance of his proper release date that his sentence was improperly calculated and that he had not been on parole at the time he committed the theft. He asserted that their own records showed he had been discharged from parole at the time he was convicted of theft and that they had a duty to contact the Superior Court to clarify what his correct sentence should be.

When prison officials use an incorrect method to compute a prisoner's sentence and, after being put on notice of their computation error, refuse to investigate a prisoner's claim of error, the prisoner states a cause of action under section 1983. See Haygood v. Younger, 769 F.2d 1350, 1355 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986).

Here, however, the sentencing court, rather than the prison officials, erroneously imposed Howell's sentence. Unlike the prison officials in Haygood, the defendants calculated Howell's sentence in accordance with the Superior Court's sentencing order and did not have the power to correct his sentence until the court deleted the reference to section 13-604.01. This court's decision in Alexander v. Perrill, 916 F.2d 1392 (9th Cir. 1990) is not to the contrary. There, the computational error was an administrative error by prison officials higher up in the chain of command. Accordingly, the district court properly dismissed Howell's action for failure to state a claim.1 

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision 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

 1

The state argues that because the prison officials are state officials acting in their official capacities, they are not "persons" under section 1983 and therefore cannot be sued for damages under Will v. Michigan Dep't of Corrections, 109 S. Ct. 2304, 2311-12 (1989). Howell, however, also named the prison officials in their individual capacities. Neither Will nor the eleventh amendment bars actions for damages against officials in their individual capacities. Price v. Akaka, 928 F.2d 824, 828-29 (9th Cir. 1991)