Alberto Vega and Rosario Heras, Plaintiffs-appellants, v. Jim Gomez, Director, California Department of Corrections,defendant-appellee, 141 F.3d 1182 (9th Cir. 1998)

Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding.

Before FERGUSON and THOMAS, Circuit Judges, and MOLLOY,^**  District Judge.

MEMORANDUM^* 

Appellants son, Mario Heras, died following an operation to remove a tumor from his brain. Heras was a prisoner in the custody of the California Department of Corrections when he died. California Penal Code section 5022 imposes a duty on the Director of Corrections to obtain from each prisoner the name of a person or persons to be notified if the prisoner dies, suffers serious illness, or suffers serious injury.

Appellants claim that their son Mario had a liberty interest in the mandatory notification procedures set forth in section 5022. They argue that because the Department of Corrections did not notify Heras' designee when he became seriously ill, it deprived Mario of his statutorily created liberty interest, in violation of the Fourteenth Amendment.

The dispositive question on this appeal is whether section 5022 creates the liberty interest claimed by appellants. We hold that it does not. The Department of Correction's failure to notify the persons designated by Mario Heras prior to his death is not an "atypical and significant hardship ... in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). Failure to notify Heras' designee of his illness does not present "the type of atypical, significant deprivation in which a State might conceivably create a liberty interest." Id. at 486.

In the absence of a protected liberty interest, appellants claim cannot stand.

AFFIRMED.