The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER & FINDINGS & RECOMMENDATIONS
Plaintiff is a state inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) and is proceeding with counsel in an action under 42 U.S.C. § 1983.*fn1 He has filed, through counsel, a fifth amended complaint pursuant to the court's allowance of November 19, 2010. See Order (Docket No. 68). 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).
In 1984, the Superior Court of Orange County adjudged plaintiff not guilty of certain sex offenses by reason of insanity and committed him to the custody of the California Department of Mental Health (DMH) for a maximum term of eighty-one years. In 1996, the Superior Court found that plaintiff "presents a high escape risk and a danger to others" and concurred with DMH's recommendation that he be transferred to the custody of CDCR pursuant to California Welfare and Institutions Code § 7301. See First Am. Pet., Exhibit G (Docket No. 25).*fn2 That statute states that an inmate at a state hospital may be transferred to CDCR's custody if he "needs care and treatment under conditions of custodial security which can be better provided within the Department of Corrections...." The statute also requires "the approval of the Director of Corrections" to effect the transfer of an inmate from DMH to CDCR. The statute is silent on the process by which an inmate would be transferred back to the custody of DMH.
By letter to the Director of DMH, dated November 20, 1997, the Director of CDCR agreed to accept custody of petitioner and another state hospital inmate. That letter also stated that "[i]f, in the future, CDC custodial and clinical staff determine that care and treatment under the conditions of custodial security provided by CDC are no longer needed, CDC will initiate return of the individuals to a DMH facility." First Am. Pet., Exhibit M (Docket No. 26). Since then, CDCR has found that petitioner no longer presents an escape risk and has recommended several times that he be returned to DMH. Id. at Exhibit N. However, DMH has written to CDCR that it still regards petitioner to be an unacceptable flight risk and has no intention of accepting him back into its custody until 2065, "when his CDC time expires." Id. at Exhibit O; see also Exhibit N at 28, 31.
II. Allegations of the fifth amended complaint
Plaintiff primarily complains about due process violations in his transfer to CDCR's custody in 1997 and the lack of any hearing regarding his custody ever since. He alleges that under the terms of his court-ordered commitment to DMH in 1984, he "was to be provided the right to a sanity hearing each year thereafter." Fifth Amended Complaint, ¶ 12A. He avers that he was entitled to such a hearing as recently as August 2010, but "both the DMH and CDCR failed to provide him with that hearing." Id. He alleges that, in transferring him to CDCR, the director of DMH, Stephen W. Mayberg, "endorsed the alteration of the commitment into a CDCR sentence." Id. at ¶ 12B. Plaintiff also complains that he has not received adequate mental health treatment since his transfer to CDCR's custody and has been denied his right to practice his religion as a Native American. See id. at ¶¶ 12D, 23.
The fifth amended complaint enumerates five causes of action. First, he demands injunctive relief in the form of an order that he be released from CDCR's custody, "as he is no longer classifiable as insane." Id. at ¶ 17. As an alternative to that relief, he asks that CDCR be ordered to return him to the custody of DMH. Id. Second, he seeks injunctive relief "wherein the court orders [DMH] to resume custody of his person and afford him all the rights and benefits due an individual in his position, a person found not guilty by reason of insanity, committed to the custody of the DMH." Id. at ¶ 20. Third, he claims violations of his rights under the First, Fourth, Fifth, Sixth and Eighth Amendments of the Constitution. Fourth, he claims he has been deprived his right to substantive due process under the Fourteenth Amendment. Fifth, he alleges intentional and negligent infliction of emotional distress, a claim that can only obtain under state tort law.
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). 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.
When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[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). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).
A. Plaintiff's claims for injunctive relief
Plaintiff's first claim for injunctive relief, demanding release from CDCR's custody, cannot be granted under § 1983. As the court stated in its order of January 25, 2010, an order of outright release without a transfer to the custody of DMH is a form of habeas relief, not a form of relief available under § 1983. See Order at 7-10. The court cited the Seventh Circuit's opinion in Glaus v. Anderson, 408 F.3d 382 (7th Cir. 2005), which reaffirmed "a clear distinction" that turns on the nature of the relief sought in a habeas petition:
If the prisoner is seeking what can be fairly described as a quantum change in the level of custody -- whether outright freedom, or freedom subject to the limited reporting and financial constraints of bond or parole or probation [-- ] then habeas corpus is his remedy. But if he is seeking a different program or location or environment, then he is challenging the conditions rather than the fact of his confinement and his remedy is under civil rights law, even if, as will usually be ...