United States District Court, N.D. California
IVAN V. CLEVELAND, H60545, Plaintiff(s),
DR. LAM, et al., Defendant(s)
ORDER OF SERVICE (Dkt. #6)
CHARLES R. BREYER, District Judge.
Plaintiff, a prisoner at the Correctional Training Facility in Soledad, California (CTF), has filed a pro se complaint under 42 U.S.C. § 1983 challenging his classification as a high-risk medical case subject to transfer to a medical facility. Plaintiff alleges that the high-risk medical classification is wrong and that Dr. Lam falsified documents to support it in an effort to have plaintiff transferred to another facility in retaliation for plaintiff having previously filed suit against Dr. Lam. Plaintiff also alleges that Dr. Adams and physician's assistant Pearson improperly signed off on the high-risk medical classification.
Plaintiff seeks damages as well as injunctive relief, including an emergency temporary restraining order (TRO) or preliminary injunction precluding CTF officials from transferring him to another facility.
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." Id . § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins , 487 U.S. 42, 48 (1988).
B. Legal Claims
Prisoners have no constitutional right to a particular classification. See Moody v. Dagget , 429 U.S. 78, 88 n.9 (1976). Changes in conditions relating to classification and reclassification do not implicate the Due Process Clause. See Hernandez v. Johnston , 833 F.2d 1316, 1318 (9th Cir. 1987). Nor does misclassification inflict pain so as to be cruel and unusual punishment violative of the Eighth Amendment. See Hoptowit v. Ray , 682 F.2d 1237, 1255-56 (9th Cir. 1982).
Prisoners have no constitutional right to incarceration in a particular institution either. See Olim v. Wakinekona , 461 U.S. 238, 244-48 (1983); Meachum v. Fano , 427 U.S. 215, 224 (1976). A prisoner's liberty interests are sufficiently extinguished by his conviction that the state may generally confine or transfer him to any of its institutions, or to prisons in another state, without offending the Constitution. See Rizzo v. Dawson , 778 F.2d 527, 530 (9th Cir. 1985) (citing Meachum , 427 U.S. at 225) (intrastate prison transfer does not implicate Due Process Clause), and Olim , 461 U.S. at 244-48 (interstate prison transfer does not implicate Due Process Clause)). A non-consensual transfer is not per se violative of due process, equal protection or Eighth Amendment rights, see Johnson v. Moore , 948 F.2d 517, 519 (9th Cir. 1991); Stinson v. Nelson , 525 F.2d 728, 730 (9th Cir. 1975); Sisbarro v. Massachusetts State Penitentiary , 592 F.2d 1, 4-5 (1st Cir. 1979), and no procedural due process protections such as notice or a hearing need be afforded before a prisoner is transferred, even if the transfer is for disciplinary reasons or to a considerably less favorable institution, see Montanye v. Haymes , 427 U.S. 236, 242 (1976); Johnson , 948 F.2d at 519.
But although disciplinary transfers without procedural due process protections are generally permissible, prison officials cannot transfer a prisoner from one institution to another in order to punish the prisoner for exercising his constitutional rights. See Schroeder v. McDonald , 55 F.3d 454, 461 (9th Cir. 1995); Rizzo v. Dawson , 778 F.2d 527, 532 (9th Cir. 1985). Liberally construed, plaintiff's allegations that Dr. Lam falsified documents to support plaintiff's high-risk medical classification in an effort to have plaintiff transferred to another facility "in retaliation" for plaintiff having previously filed suit against Dr. Lam appear to state a cognizable § 1983 claim for retaliatory classification/transfer and will be ordered served on Dr. Lam.
All other claims (i.e., plaintiff's proposed due process and Eighth Amendment claims) and defendants (i.e., Dr. Adams and physician's assistant Pearson) are dismissed.
C. Motion for Emergency TRO/Preliminary Injunction
Plaintiff's motion for an emergency TRO/preliminary injunction (dkt. #6) is DENIED for failure to satisfying the notice requirements of Federal Rule of Civil Procedure 65. Prior to granting a preliminary injunction, notice to the adverse party is required. Fed.R.Civ.P. 65(a)(1). A motion for a preliminary injunction therefore cannot be decided until the parties to the action are served, and they have not yet been served here. See Zepeda v. INS , 753 F.2d 719, 727 (9th Cir. 1983). A TRO may be granted without written or oral notice to the adverse party or that party's attorney if: (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or the party's attorney can be heard in opposition, and (2) the applicant's attorney (plaintiff himself in this case, as he ...