Roy Lee Byrd, Plaintiff-appellant, v. Pete Wilson; State of California, Defendants-appellees, 956 F.2d 274 (9th Cir. 1992)

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U.S. Court of Appeals for the Ninth Circuit - 956 F.2d 274 (9th Cir. 1992) Submitted Feb. 26, 1992. *Decided March 2, 1992

Before CANBY, WILLIAM B. NORRIS and LEAVY, Circuit Judges.


Roy Lee Byrd, a California state prisoner, appeals pro se the district court's sua sponte dismissal before service of process of his 42 U.S.C. § 1983 action. In his complaint, Byrd asserts that he has an entitlement under California law to a prison job that entitles him to earn work credits toward early release. We construe the district court's dismissal prior to service as a dismissal under 28 U.S.C. § 1915(d), and we review de novo. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). We affirm.

The district court properly determined that Byrd has no constitutional right to a prison job or to earn work credits and that California has not created any protected interest. See California Penal Code § 2933; Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir. 1989); Touissant v. McCarthy, 801 F.2d 1080, 1095 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987); Hoptowit v. Rhay, 682 F.2d 1237, 1254-55 (9th Cir. 1982). Because Byrd's complaint is frivolous, the district court properly dismissed it before service of process. See Neitzke v. Williams, 490 U.S. 319, 324 (1989); Jackson, 885 F.2d at 640.



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