1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3

WINIFRED JIAU,

4 Case No. 13-cv-04231-YGR (PR) Plaintiff, 5 ORDER REOPENING ACTION; AND v. GRANTING PLAINTIFF LEAVE TO 6 AMEND HER DELIBERATE

RANDY L. TEWS, INDIFFERENCE CLAIM

7 Defendant. 8

9 This action originally was filed by Winifred Jiau, a former federal prisoner, as a pro se 10 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Plaintiff, who at the time she 11 filed the instant action was an inmate in the custody of the Federal Bureau of Prisons (“BOP”) at 12 the Federal Corrections Institute in Dublin, California (“FCI-Dublin”), alleged that she was 13 unlawfully denied her request for transfer to a Residential Re-entry Center (“RRC”)1 on December 14 3, 2012. The Court notes that Plaintiff was eventually placed in an RRC around a year later, on 15 December 23, 2013. Dkt. 48 at 10.2 She has since been released from BOP custody, as of June 16 2014. Id. at 1. 17 In an Order dated August 15, 2017, the instant action was converted into a pro se action 18 under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Dkt. 38. Plaintiff 19 had also raised a deliberate indifference claim in violation of the Eighth Amendment based on the 20 denial of her RRC transfer request and a First Amendment claim that such a denial was the result 21 of retaliation by Defendant due to her previous lawsuits. Dkt. 48 at 16-19. However, the Court 22 dismissed both claims with prejudice in its August 15, 2017 Order. See Dkt. 38 at 8-9, 13-14. 23 The Court also specified that it granted Plaintiff “an opportunity to amend [her] claims relating to 24 the following: Due Process, Equal Protection, and Ex Post Facto Clauses.” Id. at 14. 25 26 1 Some RRCs are colloquially known as halfway houses. 27 1 Thereafter, Plaintiff filed her second amended complaint (the operative complaint), in 2 which she named Defendant Randy L. Tews, who is the warden at FCI-Dublin. Dkt. 48 at 2. 3 Plaintiff sought monetary damages. Id. at 20. 4 In an Order dated March 28, 2019, the Court granted Defendant’s pending dispositive 5 motion on the remaining claims relating to the Due Process, Equal Protection, and Ex Post Facto 6 Clauses, which was treated as one for summary judgment. Dkt. 65. Plaintiff appealed. Dkt. 67. 7 On appeal, the Ninth Circuit, in an opinion filed July 20, 2020, affirmed the Court’s ruling 8 on the claims relating to the Due Process, Equal Protection, and Ex Post Facto Clauses as well as 9 on the dismissal of the deliberate indifference and retaliation claims, but reversed and remanded as 10 to the denial of leave to amend the deliberate indifference claim. See Dkt. 69, Jiau v. Tews, No. 11 19-15825, slip op. at 4 (9th Cir. July 20, 2020). Specifically, the Ninth Circuit found “the district 12 court abused its discretion by denying [Plaintiff] leave to amend her deliberate indifference claim 13 because it is not absolutely clear that the claim cannot be cured by amendment.” Id. (citing Akhtar 14 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se 15 complaint without leave to amend unless it is absolutely clear that the deficiencies of the 16 complaint could not be cured by amendment.”)). The mandate issued on September 11, 2020. 17 Dkt. 70. 18 Accordingly, the Clerk of the Court is hereby directed to REOPEN the instant action, and 19 Plaintiff is granted leave to amend her deliberate indifference claim that was dismissed on August 20 15, 2017. 21 The Court includes the following background and analysis relating to the deliberate 22 indifference claim at issue from its August 15, 2017 Order:

23 The Eighth Amendment protects prisoners from inhumane methods of punishment and conditions of confinement. See Morgan v. 24 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions-of-confinement 25 claim, and only those deprivations denying the minimal, civilized measure of life’s necessities are sufficiently grave to form the basis 26 of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations and quotations omitted). 27 sufficiently serious, see Farmer v. Brennan, 511 U.S. 825, 834 (9th 1 Cir. 1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)); and (2) the prison official must possess a sufficiently culpable state of mind, 2 see id. (citing Wilson, 501 U.S. at 297). In prison-conditions cases, the necessary state of mind is one of “deliberate indifference,” i.e., 3 the official knows of and disregards an excessive risk to inmate health or safety. See Farmer, 511 U.S. at 834, 837. The official must be 4 aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he also must draw the 5 inference. See id. at 837. In determining whether the objective component has been met, the Court must focus on discrete and 6 essential human needs such as health, safety, food, and warmth. See Wilson v. Seiter, 501 U.S. 294, 297 (1991). Courts may not find 7 Eighth Amendment violations based on the “totality of conditions” at a prison, but instead should require evidence of specific conditions 8 amounting deprivations of essential food, medical care, sanitation, and safety. Hoptowit v. Ray, 682 F.2d 1237, 1246 n.3 (9th Cir. 1982), 9 abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 481- 84 (1995). 10 Here, Plaintiff does not allege that she was denied the minimal, 11 civilized measure of life’s necessities. Nor does she provide evidence of deprivations of any of the aforementioned categories. Rather, she 12 complains of being denied a particular prison transfer. Plaintiff cannot state an Eighth Amendment claim on these grounds, because 13 the deprivation complained of is not sufficiently extreme. Cf. Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983) (Prisoners have no 14 constitutional right to incarceration in a particular institution.); see also Tyler v. Coggins, 2012 WL 285023, *2 (E.D. Cal. Jan. 31, 2012) 15 (finding denial of requested RRC transfer did not constitute sufficiently serious deprivation to satisfy first element of Eighth 16 Amendment claim); Seidenfeld v. Rosales, 2011 WL 835782, *2 (C.D. Cal. Jan. 20, 2011) (finding denial of entry into RDAP did not 17 amount to adequate deprivation with regard to Eighth Amendment claim). 18 Accordingly, Plaintiff’s Eighth Amendment claim is DISMISSED 19 WITH PREJUDICE, because refusing a requested RRC transfer cannot constitute a serious deprivation sufficient to satisfy the first 20 element of Plaintiff’s Eighth Amendment claim. 21 Dkt. 38 at 8-9. 22 Within twenty-eight (28) days from the date of this Order, Plaintiff shall file her third 23 amended complaint in which she may amend only her deliberate indifference claim, if she can 24 correct the deficiencies as set forth above. Plaintiff must use the attached civil rights form, write 25 the case number for this action—Case No. C 13-4231 YGR (PR)—on the form, clearly label the 26 complaint “Third Amended Complaint,” and complete all sections of the form. Because the third 27 amended complaint completely replaces the previously-filed complaints, Plaintiff must include in 1 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915 (1992). She may not 2 || incorporate material from the previously-filed complaints by reference. If Plaintiff wishes to 3 attach any additional pages to the civil rights form, she shall maintain the same format as the form. 4 || Plaintiff’s failure to file her third amended complaint containing only her amended 5 deliberate indifference claim by the twenty-eight-day deadline or to correct the 6 || aforementioned deficiencies outlined above as to the deliberate indifference claim will result 7 in the dismissal of this action without prejudice. 8 It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court informed 9 of any change of address and must comply with the Court’s orders in a timely fashion. Pursuant to 10 || Northern District Local Rule 3-11, a party proceeding pro se whose address changes while an 11 action is pending must file a notice of change of address promptly specifying the new address. See 12 || L.R.3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail directed to the 13 || pro se party by the Court has been returned to the Court as not deliverable, and (2) the Court fails 14 || to receive within sixty days of this return a written communication from the pro se party 3 15 indicating a current address. See L.R. 3-11(b). a 16 IT IS SO ORDERED. 3 17 Dated: October 6, 2020 Lypent Haptrflecs,

VONNE GONZALEZ ROGER

19 United States District Judge 20 21 22 23 24 25 26 27 28