The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER RECOMMENDING DISMISSAL WITH PREJUDICE (ECF No. 31) PLAINTIFF'S OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS
Plaintiff Terry Tyler, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action on January 19, 2010, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the violation of civil rights by federal actors. (ECF No. 1.) On June 10, 2010, Plaintiff voluntarily filed an amended complaint. (ECF No. 20); Fed. R. Civ. P. 15(a). On January 31, 2012, Plaintiff's First Amended Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 29.) Plaintiff's Second Amended Complaint (ECF No. 31) is now before the Court for screening.
II. SCREENING REQUIREMENT
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, malicious," or 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).
III. SUMMARY OF SECOND AMENDED COMPLAINT
The Second Amended Complaint identifies Warden Rios as the sole Defendant and alleges that Rios denied Plaintiff's requests to be transferred to a Residential Re-entry Center (RRC) or a federal camp, thereby violating Plaintiff's Due Process rights. Plaintiff asserts, without reference to his own claim, that Bureau of Prisons (BOP) Program Statement P5331.02 does not comply with 18 U.S.C. § 3621(e). (Compl. at 1.)
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 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
Plaintiff alleges that the Defendant violated his Fifth Amendment rights to due process by failing to approve his request to be transferred to a RRC or federal camp.
The Due Process Clause protects against the deprivation of liberty without due process of law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In order to invoke the protection of the Due Process Clause, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Id. Liberty interests may arise from the Due Process Clause itself, or from an expectation or interest created by prison regulations. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding "more adverse conditions of confinement." Id. The existence of a liberty interest created by prison regulations is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Such liberty interests are "generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484; Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
The Fifth Amendment itself provides no liberty interest in a prisoner's desired location of incarceration. The law is clear that a prisoner has no constitutional right to be placed in any particular correctional facility, even though the degree of confinement in one facility may be quite different from that in another. Olim v. Wakinekona, 461 U.S. 238, 244-45 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); see also Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976) (concluding that discretionary determinations regarding conditions of confinement do not create due process rights).
The Court's previous screening order held that Plaintiff had failed to state a cognizable Due Process claim because he had not identified a liberty interest. Plaintiff complained of being denied a transfer to a RRC or federal camp. The Second Amended Complaint renews this claim but asserts a protected liberty interest in 18 U.S.C. § ...