Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 919 F.2d 146 (9th Cir. 1990)

Charles TAYLOR, Plaintiff-Appellant,v.Samuel A. LEWIS, et al., Defendants-Appellees.

No. 90-15438.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.* Decided Nov. 29, 1990.

Before WALLACE, DAVID R. THOMPSON and TROTT, Circuit Judges.


MEMORANDUM** 

Charles Taylor, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(d).1  Taylor contends he was deprived of his right to rehabilitation, employment, and education, and that he was segregated from the general prison population without due process. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm in part, and vacate and remand in part.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or fact." Id. Before dismissing a complaint, the district court must give a pro se litigant an opportunity to amend, unless it is absolutely clear the complaint's deficiencies cannot be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

To state a section 1983 claim, the plaintiff must allege facts showing a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the Constitution. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

"A state may create a constitutionally protected liberty interest by establishing regulatory measures that impose substantive limitations on the exercise of official discretion." Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir. 1985) (citing Hewitt v. Helms, 459 U.S. 460, 470-71 (1983)). A protected liberty interest may be created by state statutes, administrative regulations, or published prison policy rules and regulations. Id. The statute or regulation must use specific, mandatory language. Id.; see Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 11-12 (1979). "Particularized standards or criteria" must curtail the discretion of the decisionmakers. Olim v. Wakinekona, 461 U.S. 238, 249 (1982).

Taylor does not have a general constitutional right to rehabilitation, see Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982), and did not allege any Arizona statute or prison regulation which creates such a right. Thus, his claim of a constitutionally protected right to rehabilitation has no arguable basis in law or fact. See Jackson, 885 F.2d at 640.

Prisoners do not have a general constitutional right to work. Baumann, 754 F.2d at 845. Here, the statute Taylor cites, Ariz.Rev.Stat.Ann. Sec. 31.251 (1989),2  uses no mandatory language and leaves employment of prisoners to the discretion of prison officials. Further, Taylor has never been employed while in prison, and merely alleges he has a general right to work. Thus, Taylor's claim of a constitutionally protected right to work also has no arguable basis in law or fact. See Jackson, 885 F.2d at 640.

Taylor raised two other claims in his complaint. He claimed he was denied due process (1) when he was forced to drop out of college classes he was attending and (2) when he was segregated from the general prison population without a prior hearing. The district court failed to address these two issues in its order. Accordingly, we remand with instructions that the district court consider these claims.

We affirm the district court's judgment as to Taylor's claims for a general right to rehabilitation and a general right to work. We vacate and remand for consideration of the education and general population claims.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The district court dismissed the in forma pauperis complaint sua sponte before service of process. We interpret this dismissal as a dismissal under 28 U.S.C. § 1915(d). See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989)

 2

Section 31.251 provides in part:

A. Each able-bodied prisoner under commitment to the state department of corrections shall engage in hard labor for not less than forty hours per week, except that not more than twenty hours per week of participation in an educational, training or treatment program may be substituted for an equivalent number of hours of hard labor as prescribed by the rules of the director of the state department of corrections....

B.2. No prisoner participates in a work assignment that threatens the safety or security of the public, the correctional institution or the prisoner.