JORDAN v. MEEKAM, (E.D.Cal. 2003)

DENNIS BECK, Magistrate Judge

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. section 1983. On September 16, 2002, plaintiff filed the complaint and a motion requesting a transfer from the Central California Women's Facility to federal custody. The Court construes plaintiff's motion as a motion for preliminary injunctive relief.

The legal principles applicable to a request for preliminary injunctive relief are well established. To prevail, the moving party must show either "(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [the moving party's] favor." Oakland Tribune, Inc. v. Chronicle Publishing Company, Inc., 762 F.2d 1374, 1376 (9th Cir. 1985), quoting Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir. 1984);see also Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir. 1984). The two formulations represent two points on a sliding scale with the focal point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. "Under either formulation of the test, plaintiff must demonstrate that there exists a significant threat of irreparable injury." Id. In the absence of a significant showing of irreparability, the court need not reach the issue of likelihood of success on the merits. Id.

In the complaint, plaintiff about the quality of the health care rendered at the Central California Women's Facility. By separate order filed this same date, the Court dismisses the complaint for failure to state a claim under the Eighth Amendment. In her motion for a transfer to federal custody, plaintiff claims that she is in danger of "an atmosphere of hostility and an opportunity for retaliation by Custody Staff and Administration. . . ." Plaintiff includes no facts to substantiate her claim of imminent danger, but rather, merely speculates that she will suffer some unknown and unspecified harm. Speculative injury does not constitute irreparable harm.Goldies' Bookstore, Inc. v. Superior Court of the State of California, 739 F.2d 466, 472 (9th Cir. 1984). As discussed in the Court's order, plaintiff's allegation of inadequate health care does not rise to the level of an Eighth Amendment violation. Finally, prison inmates do not have a constitutional right to be incarcerated at a particular correctional facility or to be transferred from one facility to another. Meachum v. Fano, 427 U.S. 215, 224-25 (1976). Based on these reasons, plaintiff's motion for a transfer to federal custody must be denied.

Accordingly, it is HEREBY RECOMMENDED that plaintiff's motion for a transfer to federal custody, construed as motion for a preliminary injunction, be DENIED.

These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these findings and recommendations, the parties may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).