(concurring) :
No doubt the State of California may adopt a system of indeterminate sentencing and create a non-judicial agency to administer the system without violating the Constitution of the United States. But the existence of this power does not imply a further power in the State to immunize its acts, through its administrative agency, from the strictures of the Fourteenth Amendment.
The judicial imposition of a life sentence upon appellant is no more than a legislatively mandated device for transferring the sentencing function from the State court to the State administrative agency with a grant of jurisdiction over appellant’s person for a period sufficiently long to enable the agency to perform its functions under the State’s indeterminate sentencing law. Use of that device cannot be seized upon as a means to validate whatever action the administrative agency might subsequently choose to take, no matter how seriously the appellant might be injured, and without regard to whether the agency’s action was arbitrary, basically unfair, or invidiously discriminatory.
When the California Adult Authority entered its order of July 3, 1962, refixing appellant’s sentence at ten and one-half years, it substantially extended the prison term which appellant would be required to serve. Appellant’s challenge to the constitutionality of that order cannot be answered by pretending that nothing really occurred, merely because a State court, five years earlier, had entered an order fixing appellant’s maximum term at life. The action of the Board was State action. It deprived appellant of liberty; if it did so “without due process of law,” or denied appellant “the equal protection of the laws,” it offended the Fourteenth Amendment.
Appellant does not contend that the procedures followed by the Adult Authority failed to satisfy due process standards, and it is therefore unnecessary to consider that problem. The disclosure in appellant’s pleading that he twice violated prison rules, in the absence of any allegation that his co-defendant acted similarly, is, as the court points out, in itself a sufficient answer to the contention that he was denied equal protection of the law by his continued incarceration after the release of his co-defendant.
Appellant’s remaining contention is that, in practical effect, he was sentenced to an additional four and one-half year term for infraction of prison rules; and that this penalty was so “all out of proportion” to the offense that it constituted cruel and unusual punishment in violation of the Eighth, and hence of the Fourteenth, Amendment. Robinson v. State of California, 370 U.S. 660, 666-667, 82 S.Ct. 1417, 8 L.Ed. 758 (1962).
Whether viewed as appellant views it— as a cruel and unusual punishment — or as a result so irrational and arbitrary as to violate substantive due process, the State’s action cannot be justified simply by giving talismanic effect to the judically imposed maximum sentence. It is no more helpful for us to “characterize” the addition of four and one-half years to appellant’s sentence as part of the penalty for his original offense, than it is for appellant to “characterize” it as a penalty for the infractions. What the State did, however it is characterized, must still be measured against the limitations imposed *450by the Constitution. If, for example, appellant had alleged facts from which it appeared that the Adult Authority had increased the time he must actually serve from six to sixty years for a trivial infraction, or for no reason at all, it would surely be no answer to a due process challenge to say that since “all indeterminate sentences are for the maximum,” and since sixty years is less than life, the Authority’s action redetermining the time appellant must actually serve could not be questioned. Appellant may have no “right” to be imprisoned for less than his whole life; but he is entitled to have the time he must serve determined in a manner consistent with the Constitution. Cf. Cafeteria & Restaurant Workers Union Local 473, A.F.L.-C.I.O. v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); Wieman v. Updegraff, 344 U.S. 183, 191-192, 73 S.Ct. 215, 97 L.Ed. 216 (1952). See also Davis, Administrative Law § 7.16, § 30.05 (1958, 1965 Supp.).
Moreover, it seems inconsistent at the least to say that appellant’s equal protection argument must fail because his longer term was justified by the infractions of prison regulations and that his due process contention must fail because his longer term was not a “penalty” for those infractions.
The real difficulty with appellant’s claim is that although he alleges in con-clusory form that the additional four and one-half year penalty was imposed for infractions of the rules, he reveals none of the facts regarding the nature of the rules or the circumstances surrounding their infraction which would be essential to any review of the State’s action in the light of constitutional requirements. Although the district court called attention to the absence of allegations to support appellant’s conclusory averments, appellant made no effort to correct the omission. Dismissal was therefore proper. Williams v. Dunbar, 377 F.2d 505, 506, (9th Cir. 1967).