United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a California state prisoner presently housed in La Palma Correctional Center, Eloy, Arizona. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). In addition to his civil rights complaint, plaintiff filed a motion for "immediate preliminary injunction (stay and restraining order), " in which he seeks a court order staying defendants' transfer endorsement, restraining defendants from physically transferring plaintiff until he exhausts his administrative remedies and "a federal court adjudicates the accompanying lawsuit." (ECF No. 5 at 1.) Plaintiff also filed a motion for stay and abeyance of this action to enable him to complete the administrative exhaustion process. As set forth below, the court finds that plaintiff's motions should be denied and the complaint dismissed without prejudice.
II. Request to Proceed In Forma Pauperis and Filing Fee
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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 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 when 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), superseded by statute as stated in Lopez v. Smith , 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin , 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic , 550 U.S. at 555. However, "[s]pecific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus , 551 U.S. 89, 93 (2007) (quoting Bell Atlantic , 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson , 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer , 468 U.S. 183 (1984).
Here, plaintiff contends that he has been endorsed for transfer back into the California state prison system, and that such transfer constitutes deliberate indifference, in violation of the Eighth and Fourteenth Amendments, because defendants know that California's prison system is unconstitutionally overcrowded. (ECF No. 1 at 4.) In support of his claim, plaintiff claims that on October 4, 2006, the State of California declared a state of emergency for its overcrowded prison system, and to abate the substantial risk to inmates' health and safety, involuntarily transferred inmates to out-of-state correctional facilities. (ECF No. 1 at 4.) Plaintiff notes that the overcrowding issues are subject to federal court oversight. (Id., citing Coleman v. Brown, 2:90-cv-0520 KJM DAD P (E.D. Cal.), and Plata v. Brown, C01-1351 THC (N.D. Cal.). Plaintiff alleges that defendants Delyon and Desmangles were responsible for transferring inmates from California state prisons to out-of-state prisons in response to the emergency, and are similarly responsible for transferring such inmates back into California state prisons. (ECF No. 1 at 4.)
Inmates do not have a constitutional right to be incarcerated at a particular correctional facility or in a particular cell or a unit within a facility. See Montayne v. Haymes , 427 U.S. 236, 242-43 (1978) (no constitutional right to be housed in a particular state prison); Meachum v. Fano , 427 U.S. 215, 224 (1976) (holding that no due process protections were required upon the discretionary transfer of state prisoners to a substantially less agreeable prison); see also Olim v. Wakinekona , 461 U.S. 238, 245 (1983) (finding that "[j]ust as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State.").
Because plaintiff has no constitutional right to be housed at a particular prison, plaintiff's complaint fails to state a ...