The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
William Daughtery is a state prisoner currently serving a prison sentence for an undisclosed crime at the California Men's Colony ("CMC") in San Luis Obispo, California. He filed this pro se civil rights complaint, pursuant to 42 U.S.C. § 1983, along with a request for a preliminary injunction, on January 31, 2011. The complaint alleges that in December 2010, Plaintiff appeared at a hearing before a classification committee at CMC. At the conclusion of the hearing, the committee determined that Plaintiff would be transferred to an out-of-state prison facility to continue serving his sentence. Plaintiff claims that his transfer to an out of state institution would violate his rights of access to the Court, his Eighth Amendment right to medical care, and innumerable state statutes and regulations.*fn1 He also claims that the transfer was ordered in retaliation for his exercise of first amendment rights to file lawsuits for himself and on the behalf of other inmates. On March 17, 2011, District Judge Valerie Baker Fairbank denied Plaintiff's request for a preliminary injunction.
II. Discussion and Analysis
The Court has screened the complaint prior to ordering service in order to determine whether the action is frivolous or malicious, fails to state a claim upon which relief could be granted, or seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2). The Court's screening of the Complaint under the foregoing statute is governed by the following standards. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or(2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Since Plaintiff is appearing pro se, the Court must construe the allegations of the Complaint liberally and must afford Plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
Moreover, in determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the Plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff is required to present factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50.
As will be discussed below, the complaint is deficient on its face in most respects. However, as required by circuit precedent, the complaint will be dismissed with leave to amend. Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (pro se litigant should be given an opportunity to amend deficient pleadings unless it is clear that these deficiencies cannot be overcome).
B. Plaintiff Has No Right to be Housed in a Particular Prison
It is black letter law that a prisoner has no constitutional right to incarceration in a particular institution or housing unit or to be transferred from one facility to another. Meachum v. Fano, 427 U.S. 215, 224-228 (1976), Olim v. Wakinekona, 461 U.S. 238, 248 (1983) (an interstate prison transfer does not deprive an inmate of any liberty interest protected by the Due Process Clause); White v. Lambert, 370 F.3d 1002, 1013 (9th Cir. 2004) (habeas petitioner's transfer to an out-of-state prison did not violate any substantive liberty interest protected by the Due Process Clause even where the petitioner alleged that he was forced to serve part of his sentence in a different state than where he was convicted and was unable to receive visitors or see counsel). To the extent that Plaintiff claims otherwise, he has failed to state a claim upon which relief may be granted.
C. Plaintiff Has Failed to State a Claim of Denial of Access to the Courts Daughtery also complains generally that a transfer to an out-of-state prison will deny him access to the courts to the extent that it will make it more difficult to litigate other pending civil rights and habeas corpus cases. "[P]risoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977). This right is only violated if the prisoner has suffered "actual injury," Lewis v. Casey, 518 U.S. 343, 351 (1996), by way of an official action that hindered his or her pursuit of a "non-frivolous" or "arguable" underlying legal claim, id. at 353 & 353 n.3. See also Christopher v. Harbury, 536 U.S. 403, 415 (2002)(citing Lewis); Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007)(citing Lewis). In other words, the prisoner must demonstrate that his legal position has been somehow prejudiced in that a claim has been lost. A plaintiff must show that he was actually "shut out" of court in order to state a denial of access cause of action. Christopher, 536 U.S. at 415; Phillips, 477 F.3d at 1076.
Plaintiff has failed to allege an actual injury as required by Lewis. He simply has made conclusory allegations of access denial. Plaintiff has not yet been transferred. He has not stated where he might be transferred to. He has not shown that the hypothetical outof-state prison does not have the same United States postal service or law library facilities as CMC, or that his ability to receive, prepare and file pleadings will be impaired. There is no showing that he would be denied access to the courts if transferred.
D. Plaintiff has Not Shown a Violation of Federal Rule of Appellate Procedure 23(a) Plaintiff claims that because he has two pending habeas corpus actions and a pending civil rights action,*fn2 a transfer would violate Fed.R.App.P. 23(a). That rule provides in part: "pending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody ...