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Dorrough v. Gonzalez

October 13, 2009

MICHAEL REED DORROUGH, PLAINTIFF,
v.
F. GONZALEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER RE OBJECTION; ORDER DENYING REQUEST FOR STAY (Doc. 15) ORDER RE MOTION IN LIMINE (Doc. 17)

ORDER DISREGARDING REQUEST FOR EXTENSION OF TIME AS UNNECESSARY (Doc. 18) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND CERTAIN DEFENDANTS (Doc. 19)

I. Background

Plaintiff Michael Reed Dorrough, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 7, 2008. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 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. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted."

28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.

Plaintiff's original complaint was dismissed, with leave to amend on February 3, 2009. (Doc. 10.) Plaintiff filed a first amended complaint on March 6, 2009, which was again dismissed, with leave to amend, for failure to state a claim. (Docs. 11, 12.) Now pending before the Court is Plaintiff's second amended complaint ("SAC"), filed April 22, 2009.*fn1

II. Summary of Plaintiff's Claims

Plaintiff, a state prisoner, brings this action against defendants Deputy Warden F. Gonzalez, Acting Deputy Warden M. Carrasco, and Classification Parole Representative V. McLaughlin.

Plaintiff states that in May 2007 he was transferred from California Correctional Institution ("CCI") to California State Prison - Corcoran ("CSP-Corcoran"). Plaintiff contends that his transfer is in violation of a settlement agreement ("the Contract") between him and the California Department of Corrections and Rehabilitation ("CDCR") reached in July 2002 which delineates specific terms under which Plaintiff may be transferred to another institution.*fn2 Plaintiff contends that his transfer to CSP-Corcoran is in violation of the Contract, and that defendants Carrasco and McLaughlin recommended that Plaintiff be transferred despite knowledge of the Contract's terms. Plaintiff alleges that defendant Gonzalez was aware of the Contract but failed to stop or postpone the transfer. Plaintiff contends that his transfer was in retaliation for having filed a 602 grievance and a federal habeas petition.

Plaintiff alleges claims for relief for violation of due process and retaliation. Plaintiff further alleges a state claim for breach of contract.

A. Fourteenth Amendment Due Process Claim

Prison inmates do not have a constitutional right to be incarcerated at a particular correctional facility or to be transferred from one facility to another. Meachum v. Fano, 427 U.S. 215, 224-25 (1976); see also Olim v. Wakinekona, 461 U.S. 238, 244-45 (1983).

In the instant case, Plaintiff contends that the language of the Contract creates a liberty interest in not being transferred, and that his transfer amounts to a violation of due process. (Doc. 19, SAC, p.9:15-17.) In Lujan v. G&G Fire Sprinkers, 121 S.Ct.1446, 532 U.S. 189 (2001), the Supreme Court considered the extent of process due in the area of government contracts. "If [the State] makes ordinary judicial process ...


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