David Fierro v. Ellis C. MacDougal

dissenting:

Fierro challenged on due process grounds his transfer from the general population of the state prison to “administrative segregation” where he would not receive “good time” credit. I agree with the majority, that the district court properly dismissed Fierro’s petition for mandamus because he seeks to have us compel action by a state official. 28 U.S.C. § 1361 .

I respectfully dissent, however, from the majority’s conclusion that Fierro could not have amended his complaint to state a viable claim under § 1983. Courts should construe pleadings filed by pro se litigants like Fierro liberally, Haines v. Kerner, 404 U.S. 519, 520 , 92 S.Ct. 594, 595 , 30 L.Ed.2d 652 (1972); Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980), and avoid dismissal unless it “is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). See generally Franklin v. Oregon, 662 F.2d 1337 (9th Cir. 1981). It simply is not “clear on the record”, as the majority asserts, that Fierro was afforded the minimum procedural due process mandated by Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41…