NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

In August 2008, plaintiff and appellant Alexander Lopez, who was on parole, committed yet another parole violation. His parole agent, defendant and respondent Rafael Mata, arrested him and placed Lopez in custody on a parole hold until the parole discharge date of October 5, 2008. That date fell on a Sunday. Lopez was not released from custody on October 5; instead, he was released less than two days later. He filed a civil action against Mata pursuant to title 42 of United States Code section 1983 (section 1983), contending the over-detention violated his constitutional right to be free from a deprivation of liberty without due process of law. Following a bench trial, the court ruled in favor of Mata. Lopez appealed. Finding no violation of Lopez's constitutional rights, we affirm the judgment.

FACTS AND PROCEDURE

1. Background facts.

Lopez served almost three years in state prison on a felony criminal threat conviction. He was released from prison on October 5, 2004, with a three-year parole term, extended to four years due to various parole violations. Mata was Lopez's assigned parole agent. Lopez's discharge date from parole was October 5, 2008, four years from the date of his initial release from state prison.1 That discharge date fell on a Sunday.

On August 27, 2008, with less than 60 days remaining before his parole term expired, Lopez went to Mata's office for his monthly check-in appointment and to report that he had been arrested a couple of days earlier for vandalizing a wall ("tagging"). Mata explained he was aware of the tagging arrest and that as a result of that violation, Lopez was going to be placed on a parole hold and returned to custody for the duration of his parole term. Lopez was handcuffed and taken to Los Angeles County central jail.

During the parole hold, Lopez was held in custody at the Pitchess Detention Center, operated by Los Angeles County, until he was transferred back to the county's central jail facility on Friday, October 3, 2008. On Sunday, October 5, 2008, Lopez was told by county officers that he was going to be transferred back to the Pitchess Detention Center. Lopez told various officers that he was to be discharged that day, but they told him that his parole hold had not been released. Lopez remained in custody.

On Monday morning, October 6, 2008, Mata received a call from Lopez's sister, who told him Lopez had not been released. Mata sent the parole hold release order to the county jail at 9:39 a.m. Mata did not know that, by that time, the county had already transported Lopez to the state prison in Lancaster. Mata first learned about the transfer when Lopez's sister called again on Tuesday, October 7, 2008, to say her brother still had not been released. Lopez was released from Lancaster State Prison at about 5:00 p.m. on October 7, 2008.

2. The complaint.

Lopez filed a civil complaint stating one cause of action for violation of his civil rights against Mata, the California Department of Corrections and Rehabilitation (Department of Corrections), the County of Los Angeles, and Lee Baca in his capacity as the Sheriff of Los Angeles County. Lopez pled his claim as a federal cause of action pursuant to section 1983. The complaint is not well pled, alleging a due process violation based on a deprivation of liberty arising from the over-detention, but also referring, without specific facts, to the Fourth Amendment right against unreasonable searches and seizures (incorrectly identified as a Fifth Amendment protection), and the Eighth Amendment right against cruel and unusual punishment (incorrectly identified as a Sixth Amendment violation). Sometime before trial, Lopez dismissed Lee Baca and the County of Los Angeles. On December 8, 2009, the case proceeded to a bench trial against Mata and the Department of Corrections.

3. The bench trial.

In addition to the background facts set forth above, the following evidence was admitted at trial: Lopez testified that when he was arrested by Mata on the parole hold in August 2008, Mata told him to have a family member call him a few days before October 5, 2008, to remind him to order the release of the parole hold. Lopez said he told his sister to call Mata. Mata testified he did not recall telling Lopez to have a family member call, but he did recall speaking to Lopez's sister when Lopez was first placed on the hold in August, and also later, when she called to check on Lopez's status, and again on October 6 and 7, 2008, to inquire why her brother had not been released.

Lopez's sister testified that she called Mata about a week before October 5, 2008, to remind him to release the hold, and Mata indicated there would be no problem. She also said she phoned Mata on Monday, October 6, asking why her brother had not been released, and again on October 7, asking about the transfer to Lancaster State Prison, which she had discovered by looking on a county website. Mata testified that after he received the call from Lopez's sister on Monday morning, he issued the order releasing the hold. He said after she called him again on October 7 stating Lopez had been transferred, he phoned Lancaster State Prison and was told they were "expediting" Lopez's release.

Mata acknowledged the timely release of parolees was an important policy. Mata explained he could not release Lopez before the October 5, 2008 discharge date and that normally, as a matter of custom, a parole agent sends a hold release on the day the release is to be effectuated. He said he did not do that here because he does not work on weekends. Exhibit 204, a Department of Corrections policy memorandum, states that parole agents are to issue hold releases only during the business hours of 8:00 a.m. to 4:30 p.m., Monday through Friday, and that any other hold releases are deemed "after hours" releases which have to be determined by the Regional Administrative Officer of the Day. Mata testified that in the past, if a discharge date fell on a weekend, he would normally release on the following Monday morning and that there had never been a problem raised before in handling a release in that fashion.

The evidence presented as to Mata's conduct was that he forgot to order the hold release on Lopez. Indeed, on direct examination, Lopez admitted that when he phoned Mata after his release, Mata told him his over-detention was a mistake, that "they forgot to take the hold off." In closing argument, counsel for Lopez stated that Mata "[a]pparently . . . forgot to take the . . . parole hold off."

At the conclusion of evidence, Lopez voluntarily dismissed the Department of Corrections as a party, stating he was not asserting any policy and practice claim under Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658. The only claim remaining for the trial court to resolve on the merits was the section 1983 claim against Mata individually. On December 9, 2009, the court issued its decision orally. The trial court ruled in favor of Mata, finding there was no reckless conduct by Mata or intent to wrongfully detain Lopez, there were no damages, and there was no constitutional deprivation of rights cognizable under section 1983.

DISCUSSION

A section 1983 civil rights claim is governed by federal law. (Howlett v. Rose (1990) 496 U.S. 356, 375-376.) "Section 1983 imposes liability upon any person who, acting under color of state law, deprives another of a federally protected right." (Karim-Panahi v. Los Angeles Police Dept. (9th Cir. 1988) 839 F.2d 621, 624.) A plaintiff must plead and prove the defendant acted under color of state law and deprived plaintiff of rights secured by the Constitution or federal statutes. (Ibid.) A government actor "subjects" an individual to a deprivation within the meaning of section 1983 not only by taking an affirmative act but also by omitting "to perform an act which he is legally required to do that causes the deprivation." (Johnson v. Duffy (9th Cir. 1978) 588 F.2d 740, 743.) There is no state-of-mind element of a section 1983 claim. The Supreme Court has held section 1983 "contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right." (Daniels v. Williams (1986) 474 U.S. 327, 330 (Daniels).)

It was undisputed below that Lopez had been lawfully convicted and incarcerated and was serving a parole term related to that conviction. It was also undisputed that Lopez's alleged injury arose from his continued detention (for less than two days) following expiration of a lawful parole term. The underlying constitutional right implicated, an over-detention arising after expiration of a term of lawful incarceration, is properly analyzed as a deprivation of liberty without due process of law as embodied in the Fourteenth Amendment. (Douthit v. Jones (5th Cir. 1980) 619 F.2d 527, 532 [detention of prisoner for 30 days beyond expiration of sentence imposed without facially valid court order or warrant constitutes deprivation of liberty without due process of law].)

The hallmark of due process is, and always has been, the protection of the individual against arbitrary action by the government. (Daniels, supra, 474 U.S. at p. 331, citing Hurtado v. California (1884) 110 U.S. 516, 527.) Forgetfulness that a parole release date falls on a weekend does not equate with arbitrary or abusive government action. In Davidson v. Cannon (1986) 474 U.S. 344 (Davidson ), the Supreme Court held two prison officials had not engaged in the requisite culpable conduct to sustain a section 1983 claim, even though their failure to timely act had resulted in an inmate being attacked and seriously injured by another inmate. (Davidson, at pp. 347-348.) There, an inmate had given a note to the assistant superintendent of the prison facility, stating he had been threatened with violence by another inmate. The note was put aside and forgotten. (Id. at p. 345.) In rejecting the plaintiff inmate's Fourteenth Amendment claim, the Supreme Court explained: "Far from abusing governmental power, or employing it as an instrument of oppression, respondent . . . simply forgot about the note. The guarantee of due process has never been understood to mean that the State must guarantee due care on the part of its officials." (Id. at p. 348.)

Mata's forgetfulness, resulting in a brief over-detention of Lopez, is nowhere near as severe as the negligence that the United States Supreme Court found to fall short of a section 1983 claim in Davidson. The evidence showed Lopez was detained about nine hours beyond his release date (calculated from the parole expiration at midnight on October 5, 2008, until Mata issued the release at 9:39 a.m. the following morning). The additional hours of detention resulted from the processing of the hold release, undoubtedly complicated by the fact the County had transferred Lopez out of its facility by the time the order was received (a matter over which Mata had no influence or control). There is simply no evidence of any action or inaction by Mata that can be characterized as an arbitrary abuse of government authority.

DISPOSITION

The judgment is affirmed. Each side shall bear his own costs.

WE CONCUR:

BIGELOW, P. J.

RUBIN, J.