Unpublished Disposition, 931 F.2d 897 (9th Cir. 1988)

MEMORANDUM^**

Larry Rice, a prisoner convicted under the laws of Kansas and serving his sentence in Arizona under the Interstate Corrections Compact, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to state a claim. We review de novo, Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987), and we affirm.

Dismissal for failure to state a claim is appropriate only if the plaintiff "can prove no set of facts which would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986). The district court must afford a pro se plaintiff notice of the deficiencies and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll, 809 F.2d at 1448.

Rice contends that prison officials denied him due process when they refused to give him a "public risk" classification score which would permit him to be assigned to a corrections unit offering a sex offender treatment program. He asserts that Arizona state law governing inmate classification and Kansas state law governing inmate treatment programs create protected liberty interests entitling him to a lower score or to a treatment program.

A prisoner has no constitutional right to be housed at a particular institution, Meachum v. Fano, 427 U.S. 215, 224 (1976), or to receive a particular security classification, Moody v. Daggett, 429 U.S. 78, 87 n. 9 (1976); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). Similarly, a prisoner has no constitutional right to rehabilitation. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985); Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982). Nevertheless, a liberty interest may be created by a state's enactment of regulatory measures containing mandatory language that imposes substantive limitations on the exercise of official discretion such that "particularized standards or criteria guide the State's decisionmakers." Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (quotation omitted).

Rice first asserts that Arizona prison officials erred in raising his "public risk" score from a 2 to a 3. Previously, Rice had been classified from a 3 to a 2. Public risk scores are reevaluated every six months, and six months later, the Institutional Classification Committee recommended that his score remain a 2 and that he be transferred to another unit, which would enable him to receive sex offender treatment. This recommendation was approved by the Institutional Administrator, but the Central Classification Officer, C. Phillips, denied the recommendation and raised the score to a 3 based on Rice's "offenses and release date."

The parties agree that the relevant Arizona law is Ariz.Comp.Admin.R. & Regs. 5-1-205, which provides in pertinent part:

The Director, or his designee, may establish ratings that are higher or lower than any rating designed by the initial classification instrument or the reclassification instrument. If, in some circumstances, the Director or his designee determines, in his sole discretion, that adherence to the procedures established by this chapter may jeopardize the welfare or security of the inmates, Department of Corrections staff or the public he may, in those circumstances, decline to follow those procedures.

Rice asserts that the lack of a specific finding that he was a security risk precludes the Classification Director from raising his score. Nevertheless, the intent of the Arizona statute is to allow the Director, in his discretion, to establish ratings that are higher or lower than those recommended by the Classification Committee. Rice has no protected interest under Arizona law in his security classification.

Rice next asserts that (1) Kansas law creates a protected interest in rehabilitation entitling him to sex offender treatment and (2) under the Interstate Corrections Compact, Ariz.Rev.Stat. Sec. 31-491, he is entitled to the same treatment that he would have received if he remained in Kansas.

The parties agree that the relevant statute is Kan.Stat.Ann. Sec. 75.5211. At the time Rice was transferred to Arizona, section 75.5211 provided that " [t]he secretary of corrections shall provide employment opportunities, work experience, educational or vocational training for all inmates capable of benefiting therefrom." After Rice was transferred, section 75.5211 was amended to provide that " [t]he secretary of corrections shall provide programs of employment, work, educational or vocational training for those inmates that the secretary determines are available, willing, and able to participate and are capable of benefiting from."

The Kansas Supreme Court has held that section 75.52511 grants prison officials the discretion to determine which inmates are "capable of benefiting." Foster v. Maynard, 222 Kan. 506, 514, 565 P.2d 285, 290 (1977) (discussing section 75.5211 prior to amendment); accord Turner v. Maschner, 11 Kan.App.2d 134, 715 P.2d 425, 427 (1986); cf. Smith v. Rayl, No. 58,152, unpublished opinion at 19 (Kan. Sept. 9, 1988) (same). This court is bound by a state court's construction of its state laws. Stephan v. Dowdle, 733 F.2d 642, 642 (9th Cir. 1984). Although Kansas courts have not addressed section 75.5211 after its amendment, the statute as amended explicitly provides the secretary with discretion to determine which inmates are capable of benefiting from educational training. Thus, even assuming that section 75.5211 covers sex offender treatment, Rice has no protected interest under either version of the statute.

AFFIRMED.