Myron v. Tehrune , 457 F.3d 996 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES MICHAEL MYRON, 
Plaintiff-Appellant,
and
JAMES M. LANDSBERGER; DWAYNE
DELUNA; RICK CESARO,
Plaintiffs,
v.
CAL TERHUNE; GARY LINDSEY; G.E.
HARRIS; EDWARD L. YLST; ALFONSO
K. FILLION; D.A. MAYLE; CARL No. 04-15770
LARSEN; A.A. LAMARQUE; P.
HAMILTON; A. SOLIS; J. BASSO; P.
MANDEVILLE; P. CARILLO; A.
 D.C. No.
CV-99-21265-JW
ALEXANDER; R. PADILLA; S. OPINION
SHIPMAN; P. MARRIOTT; DON
CHESTERMAN; JOHN H. BURK; R.
PERALEZ; B. WHITE; BURKE; C.
PICKERING; DUCK; RITA CLAYTON; J.
THOMPSON; SMITH; C. MORENO;
TANN; V. BARRON; RINGS; HILL;
DAVIS; KILPATRICK; E. DONNELLY;
PUIG; DAVIS, Dr.; M.S. MADISON;
KUENZI, Dr.; PARKINSON, Dr.;
WITTENBERG, Dr.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
8925
8926 MYRON v. TERHUNE
Argued and Submitted
February 17, 2006—San Francisco, California
Filed August 7, 2006
Before: J. Clifford Wallace, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Wallace
8928 MYRON v. TERHUNE
COUNSEL
Sanford Svetcov and Maria V. Morris, Appointed Pro Bono
Counsel, San Francisco, California, for plaintiff-appellant
James Myron.
James Myron, Corcoran, California, pro se.
Thomas S. Patterson, Supervising Deputy Attorney General,
and Jennifer G. Perkell, Deputy Attorney General, San Fran-
cisco, California, for the defendants-appellees.
Barbara L. Herwig and Teal Luthy Miller, Attorneys, Appel-
late Staff Civil Division, United States Department of Justice,
Washington, District of Columbia, for intervenor United
States of America.
OPINION
WALLACE, Senior Circuit Judge:
James Myron appeals from the district court’s sua sponte
MYRON v. TERHUNE 8929
dismissal of his 42 U.S.C. § 1983 prison condition claims.
Myron argues that state regulations governing prison adminis-
tration create enforceable Fourteenth Amendment liberty
interests, and that dismissal on that basis was therefore erro-
neous. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.1
I.
Myron, a California state prisoner, filed this 42 U.S.C.
§ 1983 action along with other plaintiffs in December 1999.
The complaint named several correctional officers and medi-
cal personnel at the Salinas Valley State Prison as defendants.
The district court, after conducting its mandatory sua sponte
review of the complaint pursuant to 28 U.S.C. § 1915A, dis-
missed most of plaintiffs’ claims. In doing so, the district
court held that prison regulations governing inmate classifica-
tion, prison publications, and law library access did not create
cognizable Fourteenth Amendment liberty interests. Myron
takes this appeal alone, arguing that these determinations
were erroneous.
II.
Each of Myron’s claims depends on the existence of a fed-
eral liberty interest. We review the district court’s determina-
tion that no such interest exists de novo. See Perez-Gonzalez
v. Ashcroft, 379 F.3d 783, 786 (9th Cir. 2004).
[1] “Protected liberty interests ‘may arise from two sources
— the Due Process Clause itself and the laws of the States.’ ”
Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989),
quoting Hewitt v. Helms, 459 U.S. 460, 466 (1983). “The Due
Process Clause standing alone confers no liberty interest in
freedom from state action taken within the sentence
1
Myron’s other claims are addressed by the accompanying memoran-
dum disposition.
8930 MYRON v. TERHUNE
imposed.” Sandin v. Conner, 515 U.S. 472, 480 (1995) (inter-
nal quotation marks and citation omitted); see also Hernandez
v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (“[A] pris-
oner has no constitutional right to a particular classification
status”). Thus, any possible liberty interest would have to
arise from state law.
[2] “[A] State creates a protected liberty interest by placing
substantive limitations on official discretion.” Olim v.
Wakinekona, 461 U.S. 238, 249 (1983). We have refined this
test and held that:
A state law must satisfy two requirements in order to
create a liberty interest protected by the Constitution.
First, the law must set forth “ ‘substantive predi-
cates’ to govern official decision making” and, sec-
ond, it must contain “explicitly mandatory
language,” i.e., a specific directive to the decision-
maker that mandates a particular outcome if the sub-
stantive predicates have been met.
Valdez v. Rosenbaum, 302 F.3d 1039, 1044 (9th Cir. 2002),
quoting Thompson, 490 U.S. at 462-63. “[T]hese interests will
be generally limited to freedom from restraint which . . .
imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin, 515
U.S. at 484.
We considered similar issues in Hernandez, where we held
that Washington state law governing inmate classification sta-
tus did not create a federal liberty interest. 833 F.2d at 1318.
We specifically held that “[m]ere guidelines do not create a
protected liberty interest.” Id. at 1318. Instead, we held that
the applicable provisions “must eliminate all discretion.” Id.,
quoting Baumann v. Ariz. Dep’t of Corr., 754 F.2d 841, 844
(9th Cir. 1985).
With this framework in mind, we turn to the applicable
California regulations.
MYRON v. TERHUNE 8931
III.
[3] Myron argues that certain California regulatory provi-
sions, Cal. Admin. Code tit. 15, §§ 3375-3375.5 (2006),
which govern the security classification of inmates, create an
enforceable federal liberty interest. These provisions comprise
a system for calculating “placement scores,” which affect the
security classifications of inmates. See id. §§ 3375.3-3375.5.
The placement scores are used to determine to which security
level facility inmates are assigned. See id. § 3375.1. Myron
has alleged that prison officials violated his constitutional
rights by placing him in a “level four” facility.
[4] The California provisions do contain some mandatory
language: “The classification process shall be uniformly
applied . . . . Each inmate shall be individually classified in
accordance with this article.” Id. § 3375(a). However, the reg-
ulations also contain ample language retaining discretion for
prison officials making placement decisions. For example,
one section provides:
An inmate approved for transfer to a subfacility of a
complex may be received and processed through a
facility with a security level higher than that which
is consistent with the inmate’s placement score. Such
cases shall be transferred to the subfacility when bed
space allows or, when appropriate, recommended for
an administrative determinant which prohibits move-
ment to the lower security level facility.
Id. § 3375.1(b) (emphasis added). Furthermore, prison offi-
cials need only “take into consideration the inmate’s needs,
interests and desires, his/her behavior and placement score” in
classifying prisoners. Id. § 3375(b) (emphasis added). Later
language provides that “[a]n inmate meeting one or more of
the following administrative or irregular placement condi-
tions, known as administrative determinants, may be housed
in a facility with a security level which is not consistent with
8932 MYRON v. TERHUNE
the inmate’s placement score.” Id. § 3375.2(a). That section
provides twenty-seven discretionary grounds that prison offi-
cials may use “to override the placement of an inmate at a
facility according to his/her placement score.” Id. § 3375.2(b).
The only mandatory language in that section provides that
certain prisoners may not be placed in lower security facili-
ties. See id. § 3375.2(a).
[5] We conclude that these regulations have not “elimi-
nate[d] all discretion” of the prison officials. Hernandez, 833
F.2d at 1318 (internal quotation marks and citation omitted).
Furthermore, the regulations do not “mandate[ ] a particular
outcome if the substantive predicates have been met” because
prison officials retain discretion to place inmates not in accor-
dance with their placement scores. See Valdez, 302 F.3d at
1044. In any event, placement in a level four facility does not
“impose[ ] [an] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life,”
Sandin, 515 U.S. at 484, as thousands of other inmates are
also placed in similar facilities. Therefore, the regulations do
not give rise to a Fourteenth Amendment liberty interest. The
district court properly dismissed Myron’s fourth claim.
IV.
[6] Myron next argues that a California regulation govern-
ing prison publications, Cal. Admin. Code tit. 15, § 3250
(2006), creates a Fourteenth Amendment liberty interest. That
provision states that “[i]nmates may participate in the publica-
tion and distribution of an inmate publication only with the
institution head’s specific approval.” Id. § 3250(b) (emphasis
added). Far from limiting discretion, the provision appears to
grant unfettered discretion to prison officials to restrict pris-
oner publications. This provision does not impose “substan-
tive predicates” or contain “explicitly mandatory language,”
see Valdez, 302 F.3d at 1044 (internal quotation marks and
citation omitted), and certainly does not “eliminate all discre-
tion.” Hernandez, 833 F.2d at 1318 (internal quotation marks
MYRON v. TERHUNE 8933
and citation omitted). Therefore, section 3250 does not create
a federal liberty interest.
V.
[7] Myron also contends that prison officials violated his
constitutional rights by “den[ying] [him] access to all library
services during periods of lockdown” and “curtail[ing] the
hours of library services due to a lack of staffing, space, and
resources.” Myron contends that these actions violate his
Fourteenth Amendment rights created by 15 Cal. Admin.
Code tit. 15, § 3120 (2006). That regulation provides: “Each
warden shall ensure a library, law library and related services
are maintained for the benefit of all inmates in their facility,
including those inmates confined to segregated housing units.
A library access schedule shall be approved by the warden
and posted throughout the facility.” Id. § 3120(a). This provi-
sion might create a liberty interest by requiring that prison
officials must have a law library and must set a schedule. The
same provision, however, affirmatively invests discretion in
the warden to regulate access to library facilities. Because of
this discretion, we conclude that this regulation creates no
Fourteenth Amendment liberty interest in library access
hours. See Hernandez, 833 F.2d at 1318.
AFFIRMED.