Arthuro Q. Bermudez v. Edward T. Duenas, Chief Parole Officer, Guam Parole Services Division

936 F.2d 1064, 91 Cal. Daily Op. Serv. 4621, 91 Daily Journal DAR 7190, 19 Fed. R. Serv. 3d 1443, 1991 U.S. App. LEXIS 12337, 1991 WL 102976
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 18, 1991
Docket89-16486, 90-15198
StatusPublished
Cited by87 cases

This text of 936 F.2d 1064 (Arthuro Q. Bermudez v. Edward T. Duenas, Chief Parole Officer, Guam Parole Services Division) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arthuro Q. Bermudez v. Edward T. Duenas, Chief Parole Officer, Guam Parole Services Division, 936 F.2d 1064, 91 Cal. Daily Op. Serv. 4621, 91 Daily Journal DAR 7190, 19 Fed. R. Serv. 3d 1443, 1991 U.S. App. LEXIS 12337, 1991 WL 102976 (9th Cir. 1991).

Opinion

PER CURIAM:

Arthuro Q. Bermudez, a prisoner incarcerated under the laws of Guam, appeals pro se the district court’s dismissal of his 42 U.S.C. § 1983 action against members of the Guam Territorial Parole Board (“Board”), his social worker at the prison, and other prison officials in their individual and official capacities. Bermudez contends that the district court erred in dismissing this action under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. We review de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). We affirm the dismissal of all of the plaintiff’s claims except his claim that his denial of parole was a denial of due process. As to this claim, the district court erred in holding *1066 that the plaintiff lacked any protected liberty interest under the Guam parole statutes. See Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).

I

Bermudez’s contention that the district court erred in dismissing the defendants named in their official capacities lacks merit.

To state a section 1983 claim, a plaintiff must allege facts which show a deprivation of a right, privilege, or immunity secured by the Constitution or federal law by a person acting under color of the laws of any state or territory. 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Neither the territory of Guam nor its employees acting in their official capacities are persons under section 1983. See Ngiraingas v. Sanckez, — U.S. —, 110 S.Ct. 1737, 1743, 109 L.Ed.2d 163 (1990). Accordingly, the district court properly dismissed the action against the defendants acting in their official capacities for failure to state a claim. Id.

II

Bermudez contends that the district court erred in dismissing his claims for damages against the parole board members acting in their individual capacities. This contention lacks merit. Although a section 1983 action may be maintained against officials acting in their individual capacities, see Ngiraingas v. Sanchez, 858 F.2d 1368, 1372-1373 (9th Cir.1988), aff'd, — U.S. —, 110 S.Ct. 1737, 109 L.Ed.2d 163 (1990), parole board officials are entitled to absolute immunity from liability for damages for their actions taken when processing parole applications. Sellars v. Procunier, 641 F.2d 1295, 1302 (9th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 678, 70 L.Ed.2d 644 (1981). Accordingly, the district court properly dismissed the claims.

III

Bermudez also alleges that (1) parole officers Edward Dueñas and Joseph Chargualaf failed to advise him of what records would be reviewed by the Board at his hearing; (2) he was entitled to review the records contained in his files; and (3) the Board failed to provide reasons for its rejection of his parole application. These contentions lack merit.

Inmates are not entitled to be apprised of all the evidence relied upon by a parole board in rendering its decision. Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 15-16, 99 S.Ct. 2100, 2107-08, 60 L.Ed.2d 668 (1979). Due process requires no more than an opportunity to be heard and notification of the parole board’s reasons for denying parole. Id. at 16, 99 S.Ct. at 2108; Reynolds v. McCall, 701 F.2d 810, 812 (9th Cir.1983). Here, Bermudez was provided with the opportunity to be heard and the reasons for the Board’s decision. Bermudez admits he waived his right to appear at the hearing. Therefore, Bermudez received all the process he was due. Id.

IV

Bermudez also contends that the parole board members impermissibly delayed his parole hearing. Any delay resulted from Bermudez’s late filing of his parole application, received one day before his eligibility date, which did not contain sufficient information about his proposed home placement, and which contained some incorrect information. Accordingly, the district court properly dismissed this claim.

Bermudez also contends he sent letters to the Correctional Director, the Correctional and Associate Wardens, and his social worker/case worker in November and December 1988 requesting that they inform him of any action taken on his parole application. He further contends that they either failed to respond or failed to respond in a timely fashion. Nevertheless, *1067 Bermudez concedes he was informed by the parole board by letter dated January 27, 1989 that he was being denied parole. The prison officials’ alleged failure to respond to Bermudez’s letters does not rise to the level of a constitutional violation. See Parratt, 451 U.S. at 535, 101 S.Ct. at 1912.

V

Bermudez next contends that the district court erred in determining that he did not have a liberty interest in parole. As to this claim, controlling Supreme Court precedent requires reversal. See Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987).

A prisoner has no federal constitutional right to parole. Greenholtz, 442 U.S. at 7-11, 99 S.Ct. at 2103-06; Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir.1989). Nevertheless, early release statutes can create “a liberty interest protected by due process guarantees.” Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106. “A state [or territory] may create a constitutionally protected liberty interest by establishing regulatory measures that impose substantive limitations on the exercise of official discretion.” Baumann v. Arizona Dept. of Corrections,

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936 F.2d 1064, 91 Cal. Daily Op. Serv. 4621, 91 Daily Journal DAR 7190, 19 Fed. R. Serv. 3d 1443, 1991 U.S. App. LEXIS 12337, 1991 WL 102976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arthuro-q-bermudez-v-edward-t-duenas-chief-parole-officer-guam-parole-ca9-1991.