The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
On August 31, 2009, plaintiff filed a complaint seeking injunctive relief in the United States District Court in the Northern District of Illinois. Plaintiff sought to prevent the transfer of her son, Montell Johnson, from Illinois to California pursuant to a 1998 Executive Agreement between those states, unless a medical treatment plan was provided by the California Department of Corrections and Rehabilitation (CDCR). Johnson suffers from advanced multiple sclerosis and is a paraplegic. Johnson is dependant on others for nutrition, hydration, cleaning and movement. Johnson is currently incarcerated in Illinois but is set to be transferred back to California where he will be incarcerated by CDCR.
Plaintiff alleges that CDCR has yet to provide a treatment plan outlining how they intend to care for Johnson without violating the Eighth Amendment. Plaintiff maintains that due to budget problems in California and the high costs related to properly caring for Johnson, if he is transferred he will endure unconstitutional pain and suffering. The only defendants in this case are officials from CDCR. Defendants indicated that they cannot develop a treatment plan until CDCR medical staff has an opportunity to examine Johnson in person. Plaintiff states that access to the doctors currently treating Johnson should be sufficient.
On September 24, 2009, defendants filed a motion to dismiss (Doc. 18) pursuant to Rule 12(b)(1), 12(b)(3) and 12(b)(6). In the alternative, defendants requested the action be transferred to the Eastern District of California.
On March 25, 2010, the Northern District of Illinois court ruled (Doc. 34) that the case should be transferred to the Eastern District of California and expressed no view regarding the other arguments in the motion to dismiss.
The order from the Northern District of Illinois contains a factual summary which states:
In 1998, Montell Johnson was convicted of voluntary manslaughter in California and sentenced to life without parole. In December 1998, former-Governor Jim Edgar of Illinois and former-Governor Pete Wilson of California signed an Executive Agreement for the extradition of Johnson to the State of Illinois for prosecution of four counts of murder. The Executive Agreement specifically stated that Johnson would be "made available" to the State of California for placement within the CDCR upon the commutation of his Illinois death sentence. In 1999, Johnson was convicted of murder in Illinois and sentenced to death. This death sentence was commuted to forty years in 2003. While serving his Illinois sentence, Johnson was diagnosed with multiple sclerosis ("MS"). By April 2006, he had been diagnosed as a paraplegic with advanced secondary progressive MS, and former Illinois Governor Rod Blagojevich granted Johnson's petition for medical clemency in 2008. Mr. Johnson currently remains in the custody of Illinois prison officials, but California prison officials seek transfer of Mr. Johnson to their custody under the Executive Agreement.
The Northern District of Illinois also appointed a medical expert to examine Johnson who found the following:
In summary, Mr. Johnson is in an advanced stage of multiple sclerosis with many severe and fixed neurological deficits. At this stage, sudden change of the neurologic status from this disease is very unlikely to occur. Therefore, from the neurological point of view, and in my opinion, the patient can, with reasonable degree of safety, be transported to outside this State provided the appropriate ambulance transport and support is provided * * * * Additionally, the patient has to be cleared medically for travel by his current primary care physicians, or other internists, just prior to departure to ensure that there are no last minute medical complications, including infections, pulmonary and cardiovascular problems, or from any other body system, that could adversely, albeit temporarily, impact the neurologic status and possibly reduce the margin of safety during travel.