(PC) Shannon v. CDCR

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL TYRONE SHANNON, No. 2:17-CV-1084-JAM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RALPH DIAZ, et al., 15 Defendants.

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff’s second amended complaint (ECF No. 34). Plaintiff alleges Defendants violated his equal protection rights under the Fourteenth Amendment by allowing female inmates to have a selection of seven different alarm clocks to choose from and purchase, but denying the same choice to male inmates.

23 I. SCREENING REQUIREMENT AND STANDARD 24 The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).

1 The Federal Rules of Civil Procedure require complaints contain a “…short and plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

10 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 12 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572F.3d at 969.

20 II. PLAINTIFF’S ALLEGATIONS 21 Plaintiff has named four Defendants: (1) Ralph Diaz, (2) Sgt. Swan, (3) C.

22 Tileston, and (4) Robert W. Fox. Plaintiff alleges that Defendants violated his right to equal protection under the Fourteenth Amendment because female inmates in the California Department of Corrections and Rehabilitation are offered the choice of purchasing any of seven different kinds of alarm clocks and male inmates are afforded no such choice. Plaintiff alleges Defendant Diaz instituted the policy and Defendants Swan, Titleston, and Fox implemented it.

27 /// /// 1 III. ANALYSIS 2 Equal protection claims arise when a charge is made that similarly situated individuals are treated differently without a rational relationship to a legitimate state purpose. See San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Prisoners are protected from invidious discrimination based on race. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

6 Racial segregation is unconstitutional within prisons save for the necessities of prison security and discipline. See Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). Prisoners are also protected from intentional discrimination on the basis of their religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Equal protection claims are not necessarily limited to racial and religious discrimination. See Lee v. City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001) (applying minimal scrutiny to equal protection claim by a disabled plaintiff because the disabled do not constitute a suspect class) see also Tatum v. Pliler, 2007 WL 1720165 (E.D. Cal. 2007) (applying minimal scrutiny to equal protection claim based on denial of in-cell meals where no allegation of race-based discrimination was made); Hightower v. Schwarzenegger, 2007 15 WL 732555 (E.D. Cal. March 19, 2008).1 16 In order to state a § 1983 claim based on a violation of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional discrimination against plaintiff, or against a class of inmates which included plaintiff, and that such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. 22 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940 23 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985).

24 /// /// Error! Main Document Only.Strict scrutiny applies to equal protection claims alleging race-based or religious discrimination (i.e., where the plaintiff is member of a “protected class”); minimal scrutiny applies to all other equal protection claims. See Lee v. City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001).

1 Here, Plaintiff’s complaint again fails to state a claim sufficient to pass screening.

2 Plaintiff’s allegations relate to female inmates being able to purchase several different kinds of alarm clocks and male inmates not being able to do the same. Plaintiff claims this policy was implemented by Defendant Diaz but there are no facts that allege the policy functions as an intentionally discriminatory policy against men or that it was implemented for the purpose of discriminating against men. In other words, there is no indication from the complaint this policy is gender-based for the purpose of discriminating against men. There are likely many differences between the correctional institutions housing female inmates and those housing male inmates, including the items available for purchase. This Court can find no support for the proposition that the Equal Protection Clause compels items for purchase to be the same for both male and female inmates. Further, this Court can find no basis in law for a constitutional right to an alarm clock.

12 For these reasons, Plaintiff’s complaint cannot pass screening and continual amendment would be futile.

15 IV. CONCLUSION 16 Because it does not appear possible that the deficiencies identified herein can be cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

19 Based on the foregoing, the undersigned recommends Plaintiff’s second amended complaint be dismissed without leave to amend.

21 / / / / / / / / / / / / / / / / / / / / / / / / 1 These findings and recommendations are submitted to the United States District | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days | after being served with these findings and recommendations, any party may file written | objections with the court. Responses to objections shall be filed within 14 days after service of | objections. Failure to file objections within the specified time may waive the right to appeal. See | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

9 Dated: August 16, 2019 Ssvcqo_ 10 DENNIS M. COTA 11 UNITED STATES MAGISTRATE JUDGE