Appellant contends that he has been denied equal protection, contrary to the Fourteenth Amendment of the United States Constitution, because the California Adult Authority denied him a parole.
The appeal is from the district court’s dismissal of his complaint for failure to state a claim upon which relief can be granted.
The complaint, brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983, and the Declaratory J udgments Act, 28 U.S.C. § 2201, alleged that he and a co-defendant were given the same sentence (six to ten years indeterminate) and both had “uneventful but productive confinement.” Yet the co-defendant was granted a parole after three and one-half years, while after seven and one-half years appellant remains in penal custody. In a conelusory allegation he states that the reason he was denied his parole was that he refused to divulge information about criminal activities of his fellow prisoners. The complaint prayed for
1) a declaratory judgment that he be “paroled or shown probable cause why such parole is denied,”
2) a declaratory judgment that the Adult Authority must comply with the Fourteenth Amendment and
3) an injunction against further discrimination by the Adult Authority.
The Attorney General of California and the Warden of Folsom Prison are joined because they are alleged to have “conspired to and did deprive plaintiff of the equal protection of the laws.”
In order to state a valid claim under Sec. 1983,1 the complaint must allege facts which, if true, would show that the defendants, while acting under color of State law, subjected the plaintiff to the deprivation of a constitutional right. DeWitt v. Pail, 366 F.2d 682 (9th Cir. 1966); Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962). We agree with the district court that Padilla’s complaint fails to meet that test.
Parole is a form of custody. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1962). Thus, the gist of the complaint is that the authorities have refused to transfer him from one form of custody to another. This is not sufficient to state a claim under the Civil Rights Act, because it does not allege a violation of a right secured by the Constitution or statutes of the United States. Stiltner v. Rhay, 322 F.2d 314 (9th Cir. 1963).
Affirmed.
. For the purposes of this opinion, we have assumed, but not expressly decided, that 42 U.S.C. Sec. 1983 authorizes an action against these defendants. Appel-lees claimed immunity from civil liability arising out of official discretionary functions. Since we have decided that the dismissal was proper, we do not reach the immunity contention.