The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se. On August 1, 2008, this action was transferred to this court from the United States District Court for the Northern District of California. Plaintiff has paid the filing fee. Notwithstanding the payment of the filing fee, the court may still screen the complaint. 28 U.S.C. § 1915(e)(2).
The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Plaintiff challenges the policy of the California Department of Corrections (CDCR) and Governor Schwarzenegger authorizing the transfer of prisoners to out of state prisons due to overcrowding. The complaint contains four causes of action. First, plaintiff alleges that the transfers are being endorsed pursuant to a void contract in violation of state law. Second, plaintiff alleges that if transferred to an out of state prison, he will not have adequate access to California state legal materials. Third, plaintiff alleges that the out of state transfers constitute state sponsored kidnapping. Fourth, plaintiff alleges that the out of state transfers constitute an unconstitutional exercise of jurisdiction.
The court first considers plaintiff's claim that he will be denied access to California legal materials if transferred to an out of state prison. The court construes this claim as alleging a claim for violation of the right to access the courts. The Supreme Court has held that the right of access to the court requires prison authorities to provide prisoners with the "capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis v. Casey, 518 U.S. 343, 356 (1996).
Plaintiff "overlooks the fact that a number of local prison systems either provide access to foreign state casebooks or engage in an interlibrary loan system that provides a plethora of material outside of the immediate library compilation." Chen v. Tilton, CIV S-07-1780 WBS GGH P, 2007 WL 2695299 * 2 (E. D. Cal. 2007), opinion by the Honorable William B. Shubb, citing McElyea v. Babbitt, 833 F.2d 196, 199 (9th Cir. 1987)(noting that inmates in the Arizona State Prison may request a variety of books through prison's interlibrary loan services).
In Chen, Judge Shubb also found that the Tallahatchie County Correctional Facility in Mississippi, where the plaintiff in Chen was transferred, had an interlibrary loan system that made available to inmates a vast series of CD-ROMS containing out-of-state rules, including California's Court Rules, Deering's California Codes Annotated, and West's Annoted California Codes. Id.
States need not supply every inmate with a law library, as long as they supply a reasonable alternative to assure meaningful access. Id. at *3, citing United States v. West, 557 F.2d 151, 152-53 (8th Cir. 1977)(per curiam). One such reasonable alternative is the assistance of appointed counsel. Id., citing Bounds v. Smith, 430 U.S. 817, 830-31 (1977). Thus, where an inmate has access to a court appointed attorney, that inmate is deemed to have sufficient access to the courts. Id., citing Bounds v. Smith, 430 U.S. at 830-31.
In the instant case, plaintiff does not describe the legal actions for which he requires access to California legal materials. If, for example, plaintiff is pursuing a criminal appeal in which he is represented by counsel, then he can state no claim for violation of his right to access the courts. Accordingly, this claim is dismissed with leave to amend. If plaintiff files an amended complaint raising a claim for violation of the right to access the courts, he must address the kinds of actions he is pursuing which require access to California legal materials. Plaintiff must address also the discussion above regarding his access to interlibrary loan programs and CD-ROMS containing California rules, etc.
Plaintiff alleges that the out of state transfers constitute an unconstitutional exercise of jurisdiction. Prisoners have no constitutional right to be housed at a particular prison. Meachum v. Fano, 427 U.S. 215, 224 (1976); Moody v. Daggett, 429 U.S. 78, 87 n. 9 (1976). Accordingly, plaintiff's claim that the transfers constitute an unconstitutional exercise of jurisdiction should be dismissed.
Plaintiff's claim that the out of state transfers constitute state sponsored kidnapping does not state a colorable constitutional claim. Accordingly, this claim is dismissed.
Because plaintiff's complaint does not state a colorable constitutional claim, the complaint is dismissed with ...