Opinion
No. C 03-3746 MMC (PR)
October 14, 2003
ORDER OF DISMISSAL
Plaintiff, a California prisoner incarcerated at San Quentin State Prison, has filed pro se the above-titled civil rights complaint under 42 U.S.C. § 1983. He claims that on April 15, 2003, his request to enter a drug treatment program was denied. By separate order, plaintiff has been granted leave to proceed in forma pauperis.
DISCUSSION
A. Standard of Review
A federal court must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer, or employee of a governmental entity. See 28 U.S.C. § 1915a(a). This Court must identify any cognizable claims, and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't 901 F.2d 696, 699 (9th Cir. 1990).
A constitutionally cognizable claim under 42 U.S.C. § 1983 must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law.See West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff alleges that the trial court denied his request to enter a drug treatment program. Plaintiff's claim that he was not allowed to participate in a drug treatment program does not state a claim under 42 U.S.C. § 1983. Participating in such programs is not protected by the Due Process Clause itself. See Lyle v. Sivley, 805 F. Supp. 755, 759-60 (D. Ariz. 1992) (holding Due Process Clause does not protect right to enter drug treatment program). Alternatively, a deprivation of a liberty interest created by state law can amount to a deprivation of due process, if (1) the state statutes or regulations narrowly restrict the power of prison officials to impose the deprivation, i.e. give the inmate a kind of right to avoid it, and (2) the interest in question is one of "real substance." Sandin v. Conner, 515 U.S. 472, 480 (1995). A drug treatment program such as the one plaintiff seeks, however, does not involve a state created liberty interest afforded constitutional protection under Sandin. Although the statutes authorizing drug treatment instead of criminal prosecution do establish "substantive predicates" to govern official decision-making regarding whether a diversion hearing should be held, they do not require "in explicitly mandatory language," that if the substantive predicates are met, a particular outcome must follow with respect to whether diversion is granted. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461 (holding that to establish liberty interest protected by Due Process Clause, state law must provide "substantive predicates" and "mandatory language" as to outcome); see also Cal. Pen. Code § 1000 et seq. Because the statutory language does not meet the first prong of the Sandin test or the requirements as set forth in Thompson, no protected liberty interest requiring constitutional protection is created.
California Penal Code § 1000, et seq., applies when a case is before the court upon a drug charge. If certain prerequisites are met, the defendant must be provided with a diversion hearing.See Cal. Pen. C. § 1000(a). At the diversion hearing, the court may consider "any information relevant to its decision" to determine whether the defendant should be diverted or should go to trial.See id § 1000.2. If the court does not deem the defendant a person who would be benefitted by diversion, or if the defendant does not consent to participate, the proceedings shall continue as in any other case. See id
In sum, plaintiff has failed to state a cognizable claim under 42 U.S.C. § 1983 because his claims do not rise to the level of a constitutional violation nor do they set forth a violation of any other federal law.
CONCLUSION
For the foregoing reasons, this action is DISMISSED for failure to state a cognizable claim for relief.
The clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.IT IS ORDERED AND ADJUDGED this action is DISMISSED for failure to state a cognizable claim for relief.