Mai v. Gipson

Background

Hung Thanh Mai, proceeding without a lawyer, sued various state actors under 42 U.S.C. § 1983. He alleged that defendants transferred him between the California Department of Corrections and Rehabilitation and federal custody without his consent or notice. He claimed that the transfer violated due process, equal protection, the First Amendment, and the Eighth Amendment. He based the claims partly on defendants’ alleged failure to follow California laws requiring consent or notice.

The court reviewed the complaint under the federal prisoner-screening statute, 28 U.S.C. § 1915A. At this stage, the court must identify claims that are frivolous, malicious, inadequately pleaded, or barred because they seek relief from an immune defendant. The court explained that a § 1983 claim requires an alleged violation of a federal right by a person acting under state law.

Rulings on the Claims

The court dismissed the due-process and equal-protection claims without prejudice to Mai raising them in state court. It held that California laws requiring consent or notice did not create a protected liberty interest for purposes of § 1983. It also held that prisoners generally have no constitutional right to remain in a particular institution and may generally be transferred to another state institution, another state, or federal custody without violating due process. A transfer without consent is not automatically a violation of due process or equal protection, and the Constitution generally does not require notice or a hearing before a prison transfer.

The court dismissed the First Amendment retaliation claim with leave to amend. Mai alleged that the transfers were retaliation for exercising First Amendment rights, but he did not identify the activities he was pursuing, the defendants who interfered with those activities, or specific facts showing that the transfer was retaliatory. The court instructed him to provide those details and noted that he must show that he would not have been transferred but for exercising a constitutionally protected right.

The court dismissed the Eighth Amendment claims without prejudice to raising them in the appropriate federal district court in Colorado or in California state court. Those claims concerned solitary confinement that Mai allegedly experienced at a federal prison in Colorado. The court also stated that a transfer between prisons does not, by itself, violate the Eighth Amendment.

Leave to Amend and Counsel

The court dismissed the complaint with leave to file an amended complaint by February 2, 2026. The amended complaint must use the required caption and case number, state “FIRST AMENDED COMPLAINT” on its first page, use the court’s form, and include all claims and defendants Mai wishes to pursue. It may not incorporate earlier filings by reference. The court warned that failure to file a proper amended complaint by the deadline would result in dismissal under Federal Rule of Civil Procedure 41(b) without further notice.

The court denied Mai’s motion for appointment of counsel because he had not shown extraordinary circumstances and the action did not present complex legal issues.