James Michael Myron v. Cal Terhune

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
No. 04-15770 K. FILLION; D.A. MAYLE; CARL
LARSEN; A.A. LAMARQUE; P. D.C. No.
HAMILTON; A. SOLIS; J. BASSO; P. CV-99-21265-JW MANDEVILLE; P. CARILLO; A. ORDER ANDALEXANDER; R. PADILLA; S. OPINIONSHIPMAN; 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
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Argued and Submitted
February 17, 2006—San Francisco, California
Filed February 7, 2007
Before: J. Clifford Wallace, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Wallace
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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.
ORDER
The petition for rehearing is granted. Our opinion filed
August 7, 2006 is withdrawn and the opinion filed with this
order shall be filed.
OPINION
WALLACE, Senior Circuit Judge:
James Myron appeals from the district court’s sua sponte
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. He also asserts an Eighth Amendment claim. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1
1Myron’s other claims are addressed by the accompanying memoran-
dum disposition.
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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 did not create cognizable Eighth or Fourteenth Amend-
ment liberty interests, nor do prison publications import the
Fourteenth Amendment. Myron takes this appeal alone, argu-
ing that these determinations were erroneous.
II.
[1] The test used to determine whether a state has created
a liberty interest that is protected by the Fourteenth Amend-
ment has been a moving target. It appeared that the Supreme
Court finally clarified the issue twelve years ago in Sandin v.
Conner, 515 U.S. 472 (1995). The Court reversed its earlier
tests and stated that “[t]he time has come to return to the due
process principles we believe were correctly established and
applied in [Wolff v. McDonnell, 418 U.S. 539 (1974)] and
[Meachum v. Fano, 427 U.S. 215 (1976)].” Sandin, 515 U.S.
at 483. That resulted in defining state laws which give rise to
protected liberty interests as “generally limited to freedom
from restraint which . . . imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.” Id. at 484.
[2] Sandin held that, under the facts of the case, the prison-
er’s “discipline in segregated confinement did not present the
type of atypical, significant deprivation in which a State might
conceivably create a liberty interest.” Id. at 486. The same is
true here: classification of Myron at a “level IV” prison rather
than at a “level III” prison does not, on the record before us,
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present an “atypical and significant hardship.” There is no
showing that the conditions at level IV differ significantly
from those “imposed upon inmates in administrative segrega-
tion and protective custody” — a distinction Sandin held to be
relevant. Id. There is also no showing that the conditions at
level IV differ significantly from those at level III. See id. at
473. Finally, there is no showing that the state’s classification
of Myron will invariably affect the duration of his sentence.
See Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (inter-
preting Sandin).
III.
[3] This should end this part of the case, except for Valdez
v. Rosenbaum, 302 F.3d 1039, 1044 n.3 (9th Cir. 2002), in
which we stated that in Sandin, “the Court explicitly declined
to overrule its prior decisions.” These decisions included
Hewitt v. Helms, which examined whether the language of a
state prison regulation was mandatory or discretionary in
determining whether it gave rise to a liberty interest. 459 U.S.
460, 471-72 (1983). The actual words of the Supreme Court
in Sandin were that “[s]uch abandonment of Hewitt’s method-
ology does not technically require us to overrule any holding
of this Court.” 515 U.S. at 484, n.5. The Court concluded its
footnote, however, with the injunction that its decision “aban-
dons an approach that in practice is difficult to administer and
which produces anomalous results.” Id. It thus rejected the
mandatory/discretionary methodology. Id. Valdez determined
that “Sandin’s reasoning applied particularly to convicted
prisoners,” not “pre-trial detainees,” and applied the Hewitt
test in a case implicating the alleged liberty interest of a pre-
trial detainee. Valdez, 302 F.3d at 1044 n.3 (emphasis in origi-
nal). However, Valdez does not countermand Sandin’s rejec-
tion of the Hewitt test for prisoners, like Myron, who have
been convicted and sentenced.
IV.
[4] Myron next argues that a California regulation govern-
ing prison publications, Cal. Admin. Code tit. 15, § 3250
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(2006), creates a liberty interest. That provision states that
“[i]nmates may participate in the publication and distribution
of an inmate publication only with the institution head’s spe-
cific approval.” Id. § 3250(b).
[5] Sandin observed that the Hewitt test had “led to the
involvement of federal courts in the day-to-day management
of prisons.” Sandin, 515 U.S. at 482. Such judicial interven-
tion, held the Court, “r[a]n counter to the view expressed in
several of [its] cases that federal courts ought to afford appro-
priate deference and flexibility to state officials trying to man-
age a volatile environment.” Id. at 483. A prison official’s
determination that a prisoner may not engage in the publica-
tion and distribution of an inmate publication does “not pre-
sent the type of atypical significant deprivation in which a
State might conceivably create a liberty interest.” Id. at 486.
By holding that section 3250 does not create a protected lib-
erty interest, we comply with the Supreme Court’s command
that we not “fine-tune[ ] the ordinary incidents of prison life.”
Id. at 483.
V.
[6] Finally, Myron contends that his alleged improper clas-
sification to a “level IV” prison violated the Eighth Amend-
ment. Because the mere act of classification “does not amount
to an infliction of pain,” it “is not condemned by the Eighth
Amendment.” See Hoptowit v. Ray, 682 F.2d 1237, 1251 (9th
Cir. 1982).
AFFIRMED.
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