The opinion of the court was delivered by: Susan Oki Mollway United States District Judge
SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
On April 1, 2008, pro se Plaintiff Michael Maxey, a California prisoner incarcerated at Folsom State Prison ("FSP") in Folsom, California, brought this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding in forma pauperis.
On March 20, 2009, Maxey was notified that he was eligible for an out-of-state transfer. He indicated that he did not want to be transferred, but he was told that he was given no choice. He was asked to sign a consent form, which he refused. Maxey was then informed that he would be transferred without his written consent, pursuant to Governor Schwarzenegger's executive order authorizing involuntary transfers.
After reviewing the petition pursuant to 28 U.S.C. § 1915(e)(2), the court has determined that Maxey's Complaint does not state a claim. Accordingly, the Complaint is DISMISSED. Maxey is granted leave to amend his Complaint to state viable claims no later than March 9, 2009.
A claim arises under 42 U.S.C. § 1983 against one "who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."
The Supreme Court has cautioned that this section "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 145 (1979). "The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right secured by the Constitution and laws." Id., 443 U.S. at 140.
A. The Alleged Violations of State Law Do Not Give Rise to a Federal Claim
Maxey has attempted to articulate a state claim, asserting that Gov. Schwarzenegger's executive order allowing prisoners to be transferred without their written consent violates Cal. Penal Code § 11191(a), which, until 2007, stated in relevant part, "no inmate sentenced under California law may be committed or transferred to an institution outside of this state, unless he or she has executed a written consent to the transfer." This language was deleted, however, in the 2007 amendment. The statute now reads,
Any court or other agency or officer of this state having power to commit or transfer an inmate . . . to any institution for confinement may commit or transfer that inmate to any institution within or without this state if this state has entered into a contract or contracts for the confinement of inmates in that institution.
Cal. Penal Code § 11191(a).
As a result, state law no longer prohibits an out-of-state transfer without ...