878 F.2d 1439
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Albert O'Neal SCOTT, Plaintiff-Appellant,
Bryn ARMSTRONG, Ed Henderson, Nevada Board of State Prison
Commissioners, Nevada Department of Parole and
Probation, Patricia Chambers; State of
Nevada, Michael O'Callahan,
United States Court of Appeals, Ninth Circuit.
Submitted June 7, 1989.*
Decided July 7, 1989.
Before FARRIS, DAVID R. THOMPSON and TROTT, Circuit Judges.
Albert O'Neal Scott brought a civil rights action under 42 U.S.C. Sec. 1983 against the State of Nevada, the Nevada Department of Parole and Probation, the Nevada Board of Parole Commissioners, and various state employees. Before service of process, the district court dismissed sua sponte Scott's pro se complaint as frivolous under 28 U.S.C. Sec. 1915(d). Scott appeals. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part, reverse in part and remand for further proceedings.
On March 20, 1984, Scott was released on parole from Nevada State Prison. On February 14, 1987, while on parole, Scott was arrested and jailed on suspicion of committing twenty-two "new" state felony violations. On May 5, 1987, while in custody on the new felony charges, Scott was booked on a "no-bail" parole violator warrant. On June 11, 1987, the parole violator warrant was withdrawn. Scott remained in jail.
On July 7, 1987, following a plea bargain on the new felony charges, Scott was sentenced to a three-year prison term. On July 13, he was transferred to the state prison to serve this new term of imprisonment. However, on July 15, the prison decided it could not accept Scott for confinement on the new felony convictions because his new three-year term was to run consecutively to his original sentence, and Scott was still on parole for that. Scott was thereupon returned to the detention center. The same day, July 15, 1987, Scott was rebooked on the original parole violator warrant. A final parole revocation hearing was held July 27, 1987, and Scott's parole was revoked.
In his section 1983 complaint, Scott alleged that his due process rights were violated because, under Nevada law, he was entitled to a preliminary hearing within fifteen days of his May 5, 1987 booking as a parole violator, and a final hearing within sixty days. The preliminary hearing was never held, and the July 27 final revocation hearing was held more than sixty days after the May 5 booking. Scott also alleged that at the time of the July 27 hearing some of the defendants falsely represented to the parole board that Scott had stipulated to revocation of his parole as part of the plea bargain he entered with the state on the new felony charges. Scott alleged this was a lie. He further alleged that he was denied the opportunity to confront the witnesses who had told this lie, and that he was precluded from presenting evidence to rebut their representations, all in violation of his federal constitutional rights under the fifth, sixth and fourteenth amendments.
Scott also alleged he was denied due process and equal protection under the Constitution because, without notice to him, his inability to post bail on the new felony charges, due to his poverty, was considered by the board in revoking his parole. Finally, he alleged that his parole had been revoked in retaliation for the plea bargain he had made with the state prosecutor.
The district court granted Scott permission to proceed in forma pauperis. However, before process was issued and served, the court dismissed Scott's action as frivolous.
An in forma pauperis action may be dismissed sua sponte prior to service of process if the action is frivolous. 28 U.S.C. Sec. 1915(d) (as amended, 1949); Neitzke v. Williams, 57 U.S.L.W. 4493 (May 1, 1989); Franklin v. Murphy, 745 F.2d 1221 (9th Cir.1984). A complaint is frivolous if it lacks arguable substance in law or fact. Neitzke, 57 U.S.L.W. at 4495; Franklin, 745 F.2d at 1225.
In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court held that a parolee has a protected liberty interest in retaining his conditional freedom. Thus, the question we confront is whether the procedures afforded Scott in depriving him of this freedom were constitutionally sufficient.
1. The Timing of the Revocation Hearing
Scott contends he had a state protected right to both a preliminary and a final parole revocation hearing within the time limits specified by Nevada state law. See Nev.Rev.Stat. Secs. 213.157 2. (1) and 3. He argues that when he was first booked as a parole violator on May 5, 1987, these rights were triggered.
State procedural requirements do not define the procedural protections required under the federal Constitution. See, e.g., Cleveland Board of Education v. Laudermill, 470 U.S. 532 (1985); Brandon v. District of Columbia Board of Parole, 823 F.2d 644, 649 (D.C.Cir.1987); Rogers v. Okin, 738 F.2d 1, 7-8 (1st Cir.1984). State law may establish procedures which rise above the minimum required by the due process clause, but a state's failure to follow such procedures may still provide sufficient process to survive federal constitutional scrutiny. Rogers, 738 F.2d at 8; Brandon, 823 F.2d at 649. Therefore, in analyzing Scott's due process claims, the relevant focus is on the process required under the federal Constitution. These protections were articulated in Morrissey. Under Morrissey, the revocation hearing must be tendered within a reasonable time after a parolee is taken into custody for violation of parole.
Scott was taken into custody February 14, 1987. He was not jailed as a parole violator. He was jailed on the new felonies. While in jail, he was booked May 5 on the "no-bail" parole violator warrant; this warrant was withdrawn June 11. Scott remained incarcerated until his final revocation hearing July 27.
As the district court noted in its Memorandum Decision and Order filed October 26, 1987,
In Moody v. Daggett, 429 U.S. 78 (1976), the United States Supreme Court held that a federal parolee imprisoned for a crime committed while on parole is not constitutionally entitled to a prompt revocation hearing when a parole violator warrant is issued. The Court distinguished the Moody situation from Morrissey v. Brewer, 408 U.S. 471 (1972), which requires a prompt probable cause type hearing when a parolee is incarcerated solely on the basis of an alleged parole violation as opposed to an independent offense. The Court noted that in the Morrissey situation, the incarceration is based only on the parole violation charges, whereas in the Moody situation the parolee would be incarcerated regardless of the parole violation warrant. Id. at 87. The Court concluded that "[w]ith only a prospect of future incarceration [because of the parole hold] which is far from certain, we cannot say that the parole violator warrant has any present or inevitable effect upon the liberty interests which Morrissey sought to protect." Id.
Scott v. Armstrong, No. CV-S-87-776 PMP, Memorandum Decision and Order p. 5 (D.C.Nev. Oct. 26, 1987).
Here, Scott's loss of liberty would have been the same even if the preliminary and final revocation hearings had been held within the state statutory time periods for which he argues. He was in custody anyway on the new felony charges, and he remained in custody in connection with those charges until he was rebooked on the parole violator warrant on July 15. His parole revocation hearing was held twelve days later. Under these circumstances, no constitutional violation occurred. See United States v. Wickham, 618 F.2d 1307, 1309 (9th Cir.1979).
We conclude that Scott's section 1983 claim based on the timeliness of his parole revocation hearing is not a cognizable federal claim. The claim lacks arguable substance in law or fact. As such, it is frivolous. Neitzke v. Williams, 57 U.S.L.W. 4493, 4495 (May 1, 1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir.1984). The district court did not err in dismissing this claim sua sponte prior to service of process pursuant to 28 U.S.C. Sec. 1915(d).
2. The Parole Revocation Proceedings
Scott also contends that his due process rights were violated by the board's failure to allow him to present evidence on his behalf and cross-examine witnesses against him at the final parole revocation hearing.
In Morrissey, the Court held that a parolee is entitled to "(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; [and] (d) the right to confront and cross-examine adverse witnesses....", inter alia. Morrissey, 408 U.S. at 489.
Here, treating the allegations of Scott's complaint as true and giving those allegations a liberal construction, Scott alleges the board revoked his parole based upon the false representation, which he challenges, that he had stipulated to revocation of parole as part of his plea bargain on the new felony charges. Scott alleges he was not permitted to cross-examine the persons who made these representations, nor was he permitted to present evidence to refute the representations. The district court, however, determined that Scott's parole had been revoked because he had suffered a conviction as a result of the new felony charges. This may well be the case, but it is not disclosed by Scott's complaint. To the contrary, Scott alleges in his complaint that his parole was revoked because of the false representation to the parole board that he had stipulated to revocation of his parole. Accordingly, this portion of Scott's claim cannot be disposed of as frivolous under 28 U.S.C. Sec. 1915(d). See Neitzke v. Williams, 57 U.S.L.W. 4493 (May 1, 1989).
3. Scott's Inability to Post Bail
Scott alleged the parole board concluded that because he was indigent and could not have made bail anyway, his liberty interest had not been adversely affected by the May 5 parole violator booking. He alleged his due process rights were violated because he was given no notice that his inability to post bail would be considered at his parole revocation hearing. He also alleged the board's consideration of this factor, which resulted from his poverty, violated his right to equal protection, because persons who could make bail were not subjected to this kind of disabling analysis.
These claims are frivolous. Regardless of Scott's allegations, the fact remains that he was incarcerated due to the new felony charges from the date of his February 14 arrest until his final revocation hearing July 27. Moreover, Scott's complaint is devoid of any factual allegation suggesting that were it not for the parole violator booking of May 5, his liberty interest would not have been infringed. He has alleged nothing more than bare legal conclusions and legal arguments unsupported by any factual allegations which suggest a constitutional violation. See Neitzke, 57 U.S.L.W. at 4495; Franklin, 745 F.2d at 1228.
4. Retaliatory Parole Revocation Claim
Scott's allegations in support of his claim that his parole was revoked in retaliation for having made his plea bargain are similar to those in support of his claim relating to his ability to post bail. The allegations are nothing more than bare legal conclusions, and the claim is frivolous.
The district court did not err in dismissing Scott's claims that his parole revocation hearing was untimely, that the parole board improperly considered his inability to post bail, and that his parole was revoked in retaliation for entering the plea bargain. These claims are frivolous and were properly dismissed under 28 U.S.C. Sec. 1915(d) sua sponte by the court prior to service of process. Neitzke v. Williams, 57 U.S.L.W. 4493 (May 1, 1989); Franklin v. Murphy, 745 F.2d 1221 (9th Cir.1984).
With regard to Scott's due process claim based upon his allegations that the parole board revoked his probation based upon the false representation that he had stipulated to revocation of his parole, that the board denied him the opportunity to confront and cross-examine persons who made this alleged misrepresentation, and that the board refused to let him present evidence to support this contention, we cannot say this claim so lacks an arguable basis in law or fact as to be frivolous under 28 U.S.C. Sec. 1915(d). See Neitzke, 57 U.S.L.W. at 4495. It may well be that these allegations, even if true, had nothing to do with the parole board's decision to revoke Scott's parole, and that his parole was revoked solely because of his conviction arising out of the new felony charges. This, however, does not appear from Scott's complaint.
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings consistent with his disposition.