Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 940 F.2d 1535 (9th Cir. 1989)

Martin K. MAURER, Plaintiff-Appellant,v.Ron KOENIG, Defendant-Appellee.

No. 89-16744.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 11, 1990.* Decided July 31, 1991.

Before POOLE, CANBY and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Martin Maurer, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. Maurer sought declaratory and injunctive relief and monetary damages in his complaint alleging that his due process rights were denied by the Board of Prison Term's ("BPT") failure to set a uniform parole release date for him during his initial and subsequent appearances before the state parole board. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse and remand the case for further proceedings.

BACKGROUND

On January 24, 1989, Maurer filed a pleading he characterized as a complaint for damages and declaratory and injunctive relief under 42 U.S.C. § 1983 in the district court. On June 13, 1989, defendant Koenig filed a notice of motion and motion to dismiss under Fed. R. Civ. P. 12(b) (1) and (b) (6). On June 28, 1989, Maurer filed an opposition to the motion to dismiss.

On November 8, 1989, the district court, after construing Maurer's request for declaratory relief and injunctive relief as a petition for a writ of habeas corpus, denied the petition and denied Maurer's request for damages under 42 U.S.C. § 1983.1  Maurer timely appeals.

ANALYSIS

Maurer claims that California Penal Code Sec. 3041 creates a liberty interest in parole that is protectable under the due process clause of the fourteenth amendment.2  This contention has merit.

A prisoner has no constitutional or inherent right to be conditionally released before the expiration of a valid sentence. Greenholz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979); Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989). However, state early release statutes can create a liberty interest protected by due process guarantees. Bergen v. Spaulding, 881 F.2d at 721. "Whether a state statute provides such a protectable entitlement depends on the structure and language of the statute, as well as the state court's interpretation of the scope of the interest." Id.

Maurer specifically contends that because Cal.Penal Code Sec. 3041 provides that the BPT "shall normally set a parole release date" at the initial parole suitability hearing a due process right is created. A board charged with deciding a prisoner's early release may be delegated significant discretion in making its decision, and yet may be constrained by legal standards in excerising that discretion. Board of Pardons v. Allen, 482 U.S. 369, 375-76 (1987); Bergen, 881 F.2d at 721. If a statutory scheme requires the board to release a prisoner once the board determines that certain necessary prerequisites exist, that scheme may give rise to a liberty interest in early release. Allen, 482 U.S. at 375-76; Bergen, 881 F.2d at 721. Significant to the determination of whether parole or other early release statutes create such a protectable liberty interest is their use of mandatory language, including the use of the commanding term "shall." Allen, 482 U.S. 377-81 (liberty interest created by statute granting mandatory early release subject only to certain requisite conditions); Bergen, 881 F.2d at 721.

In the present case, the California statute contains mandatory language, commanding that:

[t]he panel or board shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of the current or past-convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.

California Penal Code Sec. 3041(b) (emphasis added). Such mandatory language supports Maurer's position. See Allen, 482 U.S. at 375-76 (finding similar mandatory language in Montana statute); Greenholtz, 442 U.S. at 11-12 (finding similar mandatory language in Nebraska statute).

This mandatory language, however, is qualified by Sec. 2281(a) of the California Code of Regulations which provides that " [r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." Cal.Admin. code tit. 15 Sec. 2281 (1991). Thus, it appears that the mandatory language of California Penal Code Sec. 3041(b), as qualified by Sec. 2281(a) of the Cal.Code of Regulations, "provides an expectation of parole no greater than that provided by the Nebraska statute [in Greenholtz ]." See Bowles v. Tennant, 613 F.2d 776, 778 (9th Cir. 1980) (applying same analysis to mandatory language of federal parole statute as qualified by other statutory language). Therefore, we conclude that, at most, Sec. 3041(b) "creates a liberty interest entitled to the limited protection of due process held by the majority in Greenholtz to apply to parole procedures under the Nebraska statute." See id. In Greenholtz, the court noted that procedures allowing for some written notice reasonably in advance of a parole hearing, an opportunity to be heard, and when parole is denied, that the inmate is informed in what respects he falls short of qualifying for parole, were constitutionally adequate. Greenholtz at 16.

Here, however, it is unclear whether Maurer was afforded the due process requirements of Greenholtz. Maurer alleged below that he was deprived of due process of law because the parole board and sections 2280, 2281 and 2282 of the California Regulations Code failed to provide for parole hearings at a reasonable time and in a reasonable manner. However, the district court did not address these issues in its order and the appellee only summarily concludes that Maurer received "the full measure of process due him under California law," explains what process is due at parole proceedings under California law, but does not specify exactly what happened at the parole proceedings in this case.

The record indicates that the BPT found Maurer unsuitable for parole after granting Maurer four parole hearings. Neither party explains exactly why the BPT found Maurer unsuitable for parole. Moreover, the record does not reveal and the district court did not address whether Maurer had a hearing with written advance notice of the date and time, he had an opportunity to be heard or had all materials considered by the BPT. See Greenholtz at 16. Cf. Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987) (court, in considering Greenholz factors, held that board afforded prisoner all process due in parole proceedings); Bergen, 881 F.2d at 722 (court held that due process violation may exist where board decided without a hearing that a prisoner should remain in prison beyond his good time release date).

We cannot determine whether or not Maurer received all the process due at his parole proceedings. Accordingly, we remand the case to the district court for further proceedings. See Bergen, 881 F.2d at 722.

REMANDED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 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

Maurer contends the district court erred by treating his requests for declaratory and injunctive relief as a petition for a writ of habeas corpus. However, the district court's construction of the claims as a habeas corpus petition did not prohibit the district court from considering its merits. In reviewing the claims, the district court noted that Maurer had exhausted state remedies, heeded Maurer's pro se status and construed his complaint liberally when addressing its merits. Moreover, the district court added a section to its order specifically discussing whether Maurer was entitled to monetary damages pursuant to 42 U.S.C. § 1983 in light of his claims. Accordingly, we conclude that the district court did not err by using this procedure. See Preiser v. Rodriguez, 411 U.S. 475, 489-90, 500 (1973) (where a prisoner challenges the fact or duration of his confinement, his sole federal remedy is a writ of habeas corpus)

 2

The district court concluded that because Maurer's allegation is that the BPT failed to properly interpret its own rules as to the determination of his parole release date, he is raising a state law claim which is not cognizable in federal court. The appellee concedes and we hold, however, that, following the Supreme Court's decision in Greenholz v. Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979), federal courts may examine the particular provisions in state parole statutes on a case-by-case basis to see if a statute creates a protected liberty interest. See Greenholz v. Nebraska Penal Inmates, at 7-8; 12. See also Toussaint v. McCarthy, 801 F.2d 1080, 1097 (9th Cir. 1986)