Meyers v. Kernan

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 LEON LEE MEYERS, Case No. 21-cv-08874-EMC 8 Plaintiff, ORDER OF DISMISSAL IN PART, 9 v. AND ORDER OF TRANSFER 10 SCOTT KERNAN, et al., 11 Defendants. [14] 15 I. INTRODUCTION 16 Leon Lee Meyers, a prisoner formerly incarcerated at Salinas Valley State Prison 17 (“SVSP”) and currently incarcerated at Wasco State Prison (“Wasco”), filed this pro se civil rights 18 action under 42 U.S.C. § 1983 . See Docket No. 1 (“Complaint”). His Complaint is now before 19 the Court for review under 28 U.S.C. § 1915A. Mr. Meyers has paid the filing fee for this action. 20 See Docket No. 3. 21 II. BACKGROUND 22 Mr. Meyers is currently incarcerated for “assault on a police officer resulting in great 23 bodily injury . . . battery on a person with whom [Mr. Meyers] had a dating relationship . . . and 24 resisting a police officer resulting in serious bodily injury . . . .” Meyers v. Hedgpeth, No. C-1125 5327 TEH (PR), 2015 WL 1467819 , at *1 (N.D. Cal. Mar. 31, 2015) (citations omitted). He was 26 convicted of these charges in October 2009, see id., and has been continuously incarcerated since 27 January 2010, see Cal. Dep’t of Corr. & Rehab., Inmate Locator, https://inmatelocator.cdcr.ca.gov/ 1 (results for “Leon Meyers”) (last visited March 27, 2022).1 Prior to his current period of 2 incarceration, Mr. Meyers was incarcerated three times on convictions related to controlled 3 substances, see Alameda Cty. Super. Ct. Case Nos. H33183 (filed Jan. 8, 2003), 134389A (filed 4 Dec. 7, 1998), 407502 (filed Feb. 21, 1996); and charged with continuous sexual abuse of a child, 5 see Alameda Cty. Super. Ct. Case No. 355743 (filed Nov. 1, 1991) (not stating whether this 6 charge resulted in conviction or acquittal).2 7 In 2020, in response to the COVID-19 pandemic, the California Department of Corrections 8 and Rehabilitation (“CDCR”) adopted certain programs to consider early release for some 9 prisoners. See Compl., Ex. B at 253 (document from the Prison Law Office, summarizing 10 CDCR’s programs). Mr. Meyers argues that he was wrongfully denied release under the “early 11 medical release” program, and that this denial resulted from discrimination on some unspecified 12 ground. See Compl. at 4 (arguing that plaintiff should have been granted release under one of 13 these programs). Mr. Meyers also believes he should have been released under CDCR’s Elderly 14 Parole Program, and Proposition 57. See id. at 4-5 . Mr. Meyers argues that the failure to release 15 him under any of these programs violated his Fourteenth Amendment right to equal protection. 16 See id. 17 Mr. Meyers also contends that he was retaliated against in violation of the First 18 Amendment. See id. at 6 . He alleges that he assisted other inmates in filing grievances and 19 lawsuits, and that between January 29, 2021, and April 22, 2021, correctional officers conducted [21] 1 It is proper for the Court to take judicial notice of these records. See United States v. Lucas, 841 F.3d 796, 802 (9th Cir. 2016) (taking judicial notice of the publicly available information from the [22] inmate locator for the Federal Bureau of Prisons); United States v. Basher, 629 F.3d 1161 , 1165 & n.2 (9th Cir. 2011) (same). [23] 2 The Court takes notice of the Alameda County Superior Court’s docket. Courts “may take notice [24] of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States v. Black, 482 F.3d 1035 , [25] 1041 (9th Cir. 2007). Court orders and other court documents are proper subjects of judicial notice, see id., as are records of court proceedings, see Dawson v. Mahoney, 451 F.3d 550 , 551 n.1 [26] (9th Cir. 2006). A court “may take judicial notice on its own” or after a party requests that it do so. Fed. R. Evid. 201(c). [27] 1 numerous cell searches in retaliation for his providing this assistance. See id. at 6-7. 2 On April 22, 2021, Mr. Meyers was transferred from SVSP to Wasco. See id. at 7. He 3 contends that officers purposely transferred him to a general population yard in an effort to put his 4 safety at risk. See id. at 10. Mr. Meyers explains that prisoners on a general population yard “will 5 normally ask for your ‘paperwork.’” Id. Mr. Meyers’s paperwork classifies him as a violent sex 6 offender, which Mr. Meyers contends is erroneous and is itself an attempt to get him attacked, and 7 he contends that general population prisoners will attack him based on that classification. See id. 8 Mr. Meyers argues that “[t]he only safe yard for [him] is a Non[] Designated yard (NDPF).” Id. 9 Following his transfer, Mr. Meyers contends that officers at Wasco purposely misplaced 10 some of his property during the transfer, in retaliation for the grievances Mr. Meyers had filed. 11 See id. (stating that the property was lost “between the transfer and the time they gave [him his] 12 property here at Wasco Prison”). Mr. Meyers claims that Wasco employees denied Mr. Meyers’s 13 request(s) for ADA accommodations, obstructed his ability to use the law library, searched his cell 14 “about 30-40 times” and searched the cells of inmates that he was assisting, and seized and/or 15 damaged some of Mr. Meyers’s property. See id. at 7, 8, 12-14, 17-18, 20. Mr. Meyers contends 16 that the Wasco officers’ cell searches, and the denial of his requested ADA accommodations, put 17 him at risk of being exposed to the COVID-19 virus. See id. at 16. Mr. Meyers believes he is at 18 greater risk from the virus than the average inmate because he is over 60, has several chronic 19 health conditions, and refuses to be vaccinated. See id. at 7 (“I never had a vaccination and don[‘]t 20 want, one. As mentioned supra, if I catch Covid, I would more than likely die from it.”). 21 III. DISCUSSION 22 Mr. Meyers has attempted to state a Fourteenth Amendment claim based on events that 23 occurred at SVSP, and First and Eighth Amendment claims based on events that occurred at SVSP 24 and Wasco. For the reasons stated below, Mr. Meyers’s SVSP-based claims fail, and are 25 dismissed without leave to amend. Mr. Meyers’s Wasco-based claims are transferred to the 26 United States District Court for the Eastern District of California. 27 A. Legal Standard 1 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 2 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any 3 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or 4 seek monetary relief from a defendant who is immune from such relief. See id. at 5 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police 6 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In screening a prisoner’s allegations, a court may 7 consider the “complaint and attachments thereto,” and matters subject to judicial notice. Kiper v. 8 Nevada State Prison Offs., 332 F. App’x 436 , 437 (9th Cir. 2009) (discussing district court’s 9 screening of allegations based on complaint and exhibits), see also Williams v. Paramo, 830 F. 10 App’x 981, 982 (9th Cir. 2020) (district court’s dismissal at screening, which “took judicial notice 11 of multiple actions” plaintiff had filed on previous occasions, was proper). 12 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two elements: (1) that a 13 right secured by the Constitution or laws of the United States was violated and (2) that the 14 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 15 U.S. 42, 48 (1988). 16 B. Analysis 17 1. SVSP-Based Fourteenth Amendment Claim 18 Mr. Meyers contends that prison officials violated his right to equal protection when they 19 denied his request for release under the now-terminated program granting early release to persons 20 with certain medical conditions, and when they failed to release him under the Elderly Parole 21 Program or proceedings conducted pursuant to Proposition 57. 22 A prisoner alleging he was denied equal protection under 42 U.S.C. § 1983 based on a 23 suspect classification must plead intentional unlawful discrimination or allege that the defendant 24 acted at least in part because of plaintiff’s membership in a protected class. See Furnace v. 25 Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); see also Byrd v. Maricopa Cnty. Sheriff’s Dep’t, [26] 629 F.3d 1135, 1140 (9th Cir. 2011) (en banc) (claim that alleged harmful treatment but 27 mentioned nothing about disparate treatment was properly dismissed). A prisoner might also state 1 differently than other similarly situated persons, (3) without a rational basis. Gerhart v. Lake 2 County Montana, 637 F.3d 1013, 1021-22 (9th Cir. 2011) (citing Village of Willowbrook v. Olech, [3] 528 U.S. 562, 564 (2000) (per curiam)). The intent element does not require that the government 4 actors acted with “subjective ill will” towards the plaintiff, merely that they intended to treat the 5 plaintiff differently. Gerhart, 637 F.3d at 1022 (citing Willowbrook, 528 U.S. at 565 ). 6 To the extent Mr. Meyers argues that he should have been granted early release pursuant to 7 Proposition 57, see Compl. at 5, this claim fails as a matter of law. California’s Proposition 57, 8 approved by voters in November 2016, makes parole more available for certain felons convicted 9 of nonviolent crimes. Specifically, Proposition 57 added Article I, section 32 to the California 10 Constitution. That section provides, in relevant part, “Parole consideration: Any person convicted 11 of a nonviolent felony offense and sentenced to state prison shall be eligible for parole 12 consideration after completing the full term of his or her primary offense,” defined for these 13 purposes as “the longest term of imprisonment imposed by the court for any offense, excluding the 14 imposition of an enhancement, consecutive sentence, or alternative sentence.” Cal. Const., art. I, 15 § 32(a)(1). M. Meyers is not a “nonviolent” offender, because he was convicted of battery, 16 assault, and causing great bodily injury. See supra, II. As such, he is not entitled to an early 17 parole hearing under the plain language of California Proposition 57, which only gives early 18 parole hearings to “nonviolent” offenders. Therefore, even if there were an equal protection right 19 to an early parole hearing under Proposition 57, such a right would only extend to those eligible to 20 such hearings under the terms of that statute. Mr. Meyers is not eligible to such a hearing due to 21 the violent nature of his offenses, and the denial of such a hearing did not violate his federal 22 constitutional rights. 23 To the extent Mr. Meyers argues that he should have been granted early release under the 24 Early Parole Program, see Compl. at 4, this claim fails as a matter of law. To be eligible for 25 consideration for release under the Early Parole Program, a prisoner must be “50 years of age or 26 older and ha[ve] served a minimum of 20 years of continuous incarceration on the inmate’s current [27] 1 sentence.” Cal. Penal Code. § 3055(a) (emphasis added) (eff. Jan. 1, 2021).4 As noted above, 2 supra II, to date Mr. Meyers has served twelve years on his current sentence. Because twelve is 3 less than twenty, Mr. Meyers is not eligible for release under this program, regardless of any 4 membership in a protected class. The failure to grant Mr. Meyers early release under this program 5 thus does not treat him differently from similarly situated prisoners. 6 As to the medical release program, Mr. Meyers has failed to identify any suspect class in 7 which he is a member, and has failed to allege that Defendants treated him differently from other 8 similarly situated prisoners. Moreover, the exhibits that Mr. Meyers attached to his Complaint 9 reveal that Defendants did not violate his right to equal protection when they denied him early 10 release. One of Mr. Meyers’s exhibits stated that, in theory, “6,599 people were eligible for early 11 release,” but CDCR “only considered 1,335 for release,” and only granted release to 57. Compl., 12 Ex. B at 24. Even if the Court assumes that Mr. Meyers was eligible for release under this 13 program, see Compl. at 4 (arguing his eligibility), Defendants treated him, at least statistically, the 14 same as the other 99.14% of prisoners who were eligible but not granted early release. Mr. 15 Meyers has not demonstrated he was treated differently from other similarly situated prisoners. 16 Because Mr. Meyers has not identified any ground on which he was denied equal 17 protection, and because his allegations and judicially noticeable records reveal that he cannot 18 identify such a ground, his Fourteenth Amendment claim is DISMISSED without leave to amend. 19 2. SVSP-Based First Amendment Claims 20 Mr. Meyers contends that prison officials retaliated against him when they searched his 21 cell as SVSP, see Compl. at 6-7, and when they decided to transfer him to a general population 22 yard at Wasco, see id. at 7, 10. Mr. Meyers also appears to argue that he was administratively 23 classified as a “vio[lent] sex offender,” as an act of retaliation. Id. at 10. 24 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 25 elements: (1) An assertion that a state actor took some adverse action against an inmate 26 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s [27] 1 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 2 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The plaintiff 3 “bears the burden of pleading and proving the absence of legitimate correctional goals for the 4 conduct of which he complains.” Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 5 This claim fails because the adverse action occurred before the Defendant became aware of 6 Mr. Meyers’s protected conduct. Mr. Meyers contends that, at SVSP on January 29, 2021, Officer 7 Mendez conducted cell searches in retaliation for Mr. Meyers having assisted Inmate Grant in 8 filing a lawsuit against Officer Mendez. See Compl. at 6, 21 (identifying the case that Mr. Meyers 9 helped Inmate Grant to file). However, court records indicate that Officer Mendez was not served 10 with Inmate Grant’s complaint until March 3, 2021. See Docket No. 15 at 4, Grant v. Haro, Case 11 No. 3:20-cv-06562-WHA (N.D. Cal.). Because Officer Mendez had not even been served with 12 Inmate Grant’s complaint at the time of the cell searches, Mr. Meyers’s provision of assistance to 13 Inmate Grant cannot have been the motivating factor for those cell searches absent an affirmative 14 allegation that Officer Mendez knew of such assistance in advance of the search. See, e.g., Pratt, [15] 65 F.3d at 808 (rejecting theory that defendants acted in retaliation for inmate’s interview with 16 news channel, where the interview did not occur until three days after defendants’ actions, and the 17 interview was not broadcast until one month later). 18 Moreover, where guards searched all cells and not just the plaintiff’s, the Ninth Circuit has 19 held that this suggests the search “serve[d] a legitimate penological purpose,” and was not 20 retaliatory. Swan v. Smith, 50 F. App’x 362 (9th Cir. 2002) (affirming grant of summary judgment 21 in favor of defendants, where “prison officials searched all the prisoners’s [sic] cells following an 22 attack on a guard,” because the fact that all the cells had been searched suggested the search was 23 not because of the plaintiff’s protected conduct) (emphasis in original); see also Green v. Elias, 9 24 F.3d 1551 (9th Cir. 1993) (unpublished) (where all prisoners were subjected to pat-down search 25 upon leaving dining hall, this suggested the search was conducted for the legitimate penological 26 goal of preventing the smuggling of contraband, rather than motivated by protected conduct). 27 Here, Mr. Meyers alleges that the “entire bldg.” was searched over the course of two days. See 1 top!”). The fact that Officer Mendez searched every cell, and not just Mr. Meyers’s cell, further 2 suggests that the cell searches were not “because of” Inmate Grant’s lawsuit. Cf. Swan v. Smith, [3] 50 F. App’x 362 (9th Cir. 2002). 4 Mr. Meyers also alleges that he was transferred to Wasco in retaliation for having helped 5 Inmate Grant.5 See Compl. at 7, 10. However, the exhibits attached to the Complaint show that 6 Mr. Meyers’s transfer to Wasco was ordered on January 26, 2021. See Compl., Ex. D at 27. The 7 transfer decision thus was made four days before Mr. Meyers’s cell was searched, and five weeks 8 before Officer Mendez was served with Inmate Grant’s lawsuit. As above, Mr. Meyers’s 9 assistance to Inmate Grant thus could not have motivated the decision to transfer Mr. Meyers to 10 Wasco. 11 Likewise, although Mr. Meyers appears to argue that he was administratively classified as 12 a violent sex offender in retaliation for the assistance he provided to Inmate Grant, see Compl. at 13 10, this classification appeared in Mr. Meyers’s record on or before January 26, 2021, see Compl., 14 Ex D at 27. Mr. Meyers’s administrative classification thus could not have been motivated by the 15 assistance he provided to Inmate Grant. 16 Because it is impossible for Mr. Meyers’s assistance to Inmate Grant to have motivated 17 conduct which occurred before Defendants became aware of that assistance, Mr. Meyers’s 18 retaliation claim is DISMISSED. 19 Leave to amend will not be given, because amendment would be futile. Where “[i]t would 20 not be possible” for a plaintiff to state a claim on amendment “without contradicting any of the 21 allegations of his original complaint,” courts regularly find that amendment would be futile. 22 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990) (holding that district court did 23 not abuse discretion by denying leave to amend, where complaint could not truthfully be amended 24 to state a claim); see also Robinson v. WMC Mortg. Corp., 649 F. App’x 636, 637 (9th Cir. 2016) 25 (same); Heisen v. Pac. Coast Bldg. Prod., Inc., 26 F.3d 130 (9th Cir. 1994) (unpublished) (same). 26 Here, Mr. Meyers cannot truthfully amend the Complaint to show that his assistance to Inmate [27] 1 Grant motivated Defendants’ conduct, because the record shows that Defendants acted before 2 becoming aware of that assistance. Accordingly, Mr. Meyers’s First Amendment claim is 3 dismissed without leave to amend. 4 3. SVSP-Based Eighth Amendment Claim 5 Mr. Meyers appears to argue that Defendants put his safety at risk by administratively 6 classifying him as a violent sex offender, and by transferring him to Wasco. See Compl. at 10 7 (stating that Defendants incorrectly classified Mr. Meyers as a violent sex offender, and that this 8 classification would get him attacked), 21 (arguing that Wasco “by its nature, would be a threat to 9 [Mr. Meyers’s] health and safety). Mr. Meyers argues that he should be housed at a Non10 Designated Program Facility, rather than with general population inmates. See id. at 10-11. 11 a. Administrative Classification 12 Mr. Meyers appears to intend to claim that his erroneous administrative classification as a 13 violent sex offender violates the Eighth Amendment. See Compl. at 10. This claim fails because, 14 first, this classification does not appear to be erroneous. Second, even if it were erroneous, it is 15 well established that misclassification does not constitute an Eighth Amendment claim. 16 Mr. Meyers contends that he received an inaccurate administrative classification of “VIO. 17 SEX. LIF. ESC.” Compl. at 10 (arguing plaintiff is not a sex offender); see also Compl., Ex. D at 18 28 (providing administrative determinant). CDCR regulations provide that inmates who “meet[] . 19 . . irregular placement conditions . . . may be housed in a facility with a security level which is not 20 consistent with the inmate’s placement score,” and that certain “three-letter codes . . . indicate 21 those administrative or irregular placement conditions.” Cal. Code Regs. tit. 15, § 3375.2 (a), (b). 22 The administrative determinants applied to Mr. Meyers indicate that he has a current or prior 23 conviction for a violent felony; “a prior incidence of rape, oral copulation, sodomy, or a lewd and 24 lascivious act”; is serving a life sentence; and poses a high escape risk. Id. at § 3375.2(b)(28), (23) 25 (emphasis added), (12), (9). As noted above, Mr. Meyers currently is incarcerated for an assault 26 resulting in great bodily injury and for domestic violence, and in 1991 was arrested and charged 27 with the continuous sexual abuse of a child. Supra II. 1 previously has rejected arguments that an inmate was misclassified as a sex offender where the 2 inmate was arrested for, though never convicted of, a sex offense. In Garcia v. Henry, an inmate 3 challenged the application of an “R suffix” to his prison record, because he had never been 4 convicted of rape. See 13 F. App’x 579, 580 (9th Cir. 2001). The Ninth Circuit noted that the 5 relevant CDCR regulation did not require an inmate to have been convicted of rape before an “R” 6 suffix could be applied; rather, the regulation required the application of that suffix whenever an 7 inmate had been arrested and charged with rape. See id. at 580-81 . Because the defendants had 8 followed that rule, the plaintiff’s constitutional rights had not been violated. Likewise, in DeLong 9 v. Terhune, the Ninth Circuit held that an “R” suffix was “justified . . . because of [the plaintiff’s] 10 prior arrest for rape,” and thus that no constitutional violation had occurred. 18 F. App’x 534 , 535 11 (9th Cir. 2001) (emphasis added). Applying Garcia and DeLong here, Mr. Meyers’s 1991 arrest 12 for sexual abuse of a child justifies the “SEX” determinant. The relevant regulation does not 13 require that an inmate be convicted in order to receive this determinant Instead, there must merely 14 be an applicable “inciden[t]” in the inmate’s past, Cal. Code Regs. tit. 15, § 3375.2 (b)(23), which 15 requirement is met by Mr. Meyers’s arrest, see Garcia, 13 F. App’x at 580 ; see also DeLong, 18 16 F. App’x at 535. The “SEX” determinant is thus justified by Mr. Meyers’s 1991 arrest, and Mr. 17 Meyers’s current violent conviction obviously justifies the “VIO” determinant. The application of 18 “VIO” and “SEX” to Mr. Meyers therefore is not erroneous under California law. 19 Even if the application of these determinants were incorrect, the Ninth Circuit repeatedly 20 has rejected claims that classification programs violate the Eighth Amendment. See Neal v. 21 Shimoda, 131 F.3d 818, 833 (9th Cir. 1997) (classification program designed to treat and reduce 22 recidivism of sex offenders is well within state’s authority to operate correctional facilities and 23 does not violate contemporary standards of decency). Even where an inmate is arguably 24 misclassified, this “does not itself inflict pain within the meaning of the Eighth Amendment,” and 25 so does not constitute an Eighth Amendment violation. Hoptowit v. Ray, 682 F.2d 1237 , 1255-56 26 (9th Cir. 1982) (reversing district court’s order granting injunctive relief).6 [27] 1 Because Mr. Meyers’s Eighth Amendment claim fails first because the facts show that the 2 classifications are correct, and second because misclassifications as a matter of law do not violate 3 the Eighth Amendment, it is DISMISSED without leave to amend. 4 b. Transfer from SVSP to Wasco 5 Mr. Meyers contends that his transfer from SVSP to general population housing at Wasco 6 puts his safety at risk, because he can be safely housed only at an NDPF facility. See Compl. at 7. 7 This claim fails because it is logically baseless. 8 Mr. Meyers claims that he must be housed at an NDPF facility because general population 9 inmates will demand to see his “paperwork,” will discover his administrative classification, and 10 will attack him because of it. See id. However, an NDPF yard is one where “Level I and Level II 11 GP and SNY inmates are housed together.” Kester v. Diaz, No. 19-CV-04205-JST, 2019 WL 12 3997483, at *2 (N.D. Cal. Aug. 23, 2019). This means that Mr. Meyers would still be housed with 13 general population inmates if he were placed in an NDPF facility. See id. (plaintiff claimed that a 14 sensitive needs prisoner would be at risk in an NDPF facility because he would be housed with 15 general population inmates who would attack him). Thus, Mr. Meyers’s claim that he cannot be 16 safe in a general population facility, but would be safe in an NDPF facility, makes no sense 17 because he would be housed with general population inmates in either situation. 18 Moreover, although Mr. Meyers suggests that he was transferred to a general population 19 facility at Wasco in an intentional effort to put his safety at risk, see Compl. at 10, 21 (“CCI 20 Lizaola . . . had plaintiff sent to a prison in which by its nature, would be a threat to his health and 21 safety.”), Mr. Meyers’s exhibits show that he was housed in general population at SVSP prior to [23] facts sufficient to show that he suffered any injury other than the classification itself.”); Sims v. Woodford, 430 F. App'x 637 (9th Cir. 2011) (same, at summary judgment); Terry v. Salinas Valley [24] State Prison, 243 F.3d 550 (9th Cir. 2000) (affirming dismissal because “misclassification, and a resulting placement in an area of higher security does not inflict pain within the meaning of the [25] Eighth Amendment, and cannot form the basis of a constitutional claim”; Bayramoglu v. Cate, No. C 13-1094 YGR (PR), 2013 WL 5934702 , at *3 (N.D. Cal. Oct. 30, 2013) (classification of [26] prisoner did not state an Eighth Amendment claim, even though prisoner was placed in solitary confinement because of classification) (citing Hoptowit, 682 F.2d at 1255-56 ); Goodlow v. Tucker, [27] No. C 09-5786 CRB (PR), 2010 WL 1541669 , at *1 (N.D. Cal. Apr. 16, 2010) (allegation that 1 this transfer, see Compl., Ex. D at 27-30. Mr. Meyers’s classification committee chronos show 2 that he was a Level III inmate in 2019 and 2020, and maintained that level in 2021. See id. at 29 3 (stating he had a placement score of 47 in 2019, which increased to 49 in 2020), 27 (stating that 4 his placement score fell to 41 in 2021); see also Cal. Code Regs. tit. 15, § 3375.1 (a)(3) (“An 5 inmate with a placement score of 36 through 59 shall be placed in a Level III facility.”). Only 6 some Level I and Level II facilities have transitioned to NDPF facilities. See CDCR, 7 Non-Designated Programming Facility Frequently Asked Questions, 8 https://www.cdcr.ca.gov/blog/non-designated-programming-facility-frequently-asked-questions9 faq/ (last visited March 27, 2022).7 Thus, as Mr. Meyers was a Level III inmate when he was 10 housed at SVSP, he cannot have been housed in NDPF at SVSP. Mr. Meyers’s argument that he 11 was transferred to Wasco in order to get him placed on a general population facility makes no 12 sense because Defendants could have achieved the same ends by keeping Mr. Meyers at SVSP. 13 Because the Complaint reveals that Mr. Meyers’s SVSP-based Eighth Amendment claims 14 are meritless, these claims are DISMISSED without leave to amend. 15 IV. ORDER OF TRANSFER 16 The above analysis disposes of all claims Mr. Meyers filed concerning events at SVSP. 17 Mr. Meyers’s remaining claims concern events at Wasco. See generally, Compl. In addition, Mr. 18 Meyers recently filed a motion for a preliminary injunction, asking that officials at Wasco be 19 required to grant him single-cell housing. See Docket No. 5. 20 Venue is proper where defendants reside, or where the events at issue occurred. See 28 21 U.S.C. § 1391 (b). Wasco lies in Kern County, which is in the Eastern District of California. [22] 7 See also Andrade v. Diaz, No. 5:20-CV-00137-FMO-JC, 2020 WL 8454918 , at *6 (C.D. Cal. [23] Nov. 19, 2020) (“the NDPFs involved only certain categories of inmates from general population who posed a low risk of violence . . . the NDPFs were implemented only in Level I and Level II [24] housing facilities”), report and recommendation adopted, No. 5:20-CV-00137-FMO-JC, 2021 WL 1191993 (C.D. Cal. Jan. 27, 2021); Mendez v. Diaz, No. 119CV01759NONEBAMPC, 2020 WL 25 1974231, at *4 (E.D. Cal. Apr. 24, 2020) (“Plaintiff alleges that Defendants Diaz, Allison, and Ndoh, who are supervisory officials, are liable in their individual capacities for violating his [26] Eighth Amendment rights by implementing a policy that merges SNY prisoners with GP prisoners in all level 1 and level 2 yards . . . .”) report and recommendation adopted, No. [27] 119CV01759NONEBAMPC, 2020 WL 2731993 (E.D. Cal. May 26, 2020); Kester, 2019 WL 1 Venue as to Mr. Meyers’s remaining claims, and his request for injunctive relief, therefore would 2 be proper in the Eastern District, and not in this one. 3 Accordingly, in the interest of justice and pursuant to 28 U.S.C. § 1406 (a), this action is 4 TRANSFERRED to the United States District Court for the Eastern District of California. 5 The Clerk shall transfer this matter. [6] 7 IT IS SO ORDERED. [8] 9 Dated: May 2, 2022 [10] 11 ______________________________________ EDWARD M. CHEN 12 United States District Judge