Robinson v. Joya et al

Filing 9

ORDER Sua Sponte Dismissing with leave to amend 6 Amended Complaint filed by Jackie Robinson signed by District Judge Janis L. Sammartino on 1/26/2009. (Second Amended Complaint due by 3/16/2009). (Lundstrom, T)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JACKIE ROBINSON, Civil No. 08-1339 JLS (BLM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

Plaintiff, vs. MIRIAM JOYA, et al., Defendants.

ORDER SUA SPONTE DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)

I. PROCEDURAL HISTORY On September 8, 2008, Plaintiff, a civil detainee currently housed at Coalinga State Hospital and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. The Court granted Plaintiff's Motion to Proceed IFP on September 12, 2008 [Doc. No. 4]. On November 3, 2008, Plaintiff filed a First Amended Complaint ("FAC").
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On November 26, 2008, this matter was reassigned to District Judge Janis L. Sammartino for all further proceedings [Doc. No. 7]. II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) The Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)). Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). However 28 U.S.C. §§ 1915(e)(2) now mandates that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before effecting service of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."). The Court's duty to liberally construe a pro se's pleadings,

see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on
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other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986).

A.

Fourteenth Amendment Equal Protection claims

In his First Amended Complaint, Plaintiff alleges he has been denied his right to equal protection under the Fourteenth Amendment. (FAC at 7.) Specifically, Plaintiff claims that the computer policy adopted by Coalinga State Hospital creates a "disparity problem" by denying inmates the right to purchase a computer. (Id.) Plaintiff does not identify any other group that is permitted to purchase personal computers. The "Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, Inc. 473 U.S. 432, 439 (1985). In order to state a claim under § 1983 alleging violations of the equal protection clause of the Fourteenth Amendment, Plaintiff must allege facts which demonstrate that he is a member of a protected class. See Harris v. McRae, 448 U.S. 297, 323 (1980) (indigents); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985) (listing suspect classes). Plaintiff has not alleged that he is a member of a protected class, nor has he plead facts to demonstrate that the Defendants acted with an intent or purpose to discriminate against him based upon his membership in a protected class. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999). Plaintiff has also failed to allege sufficient facts which may prove Village of Arlington Heights v. Metropolitan Housing

invidious discriminatory intent.

Development Corp., 429 U.S. 252, 265 (1977). Accordingly, the Court dismisses Plaintiff's Fourteenth Amendment equal protection claims for failing to state a claim upon which § 1983 relief can be granted. B. Conspiracy Claims

Plaintiff "invokes jurisdiction under 42 U.S.C. section 1985" and claims that officials at Coalinga State Hospital "conspired to deprive plaintiff of his First Amendment right to free speech by illegally seizing his correspondence." (FAC at 4.) Here, the Court finds that
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Plaintiff's First Amended Complaint fails to state a claim under 42 U.S.C. § 1985(3). "To state a cause of action under § 1985(3), a complaint must allege (1) a conspiracy, (2) to deprive any person or a class of persons the equal protection of the laws, or of equal privileges and immunities under the laws, (3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage or a deprivation of any right or privilege of a citizen of the United States." Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980); see also Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). "[T]he language requiring intent to deprive equal protection . . . means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin, 403 U.S. at 102; see also Sever, 978 F.2d at 1536. Here, Plaintiff fails to allege membership in a protected class and fails to allege that any Defendant acted with class-based animus, both of which are essential elements of a cause of action under 42 U.S.C. § 1985(3). See Griffin, 403 U.S. at 101-02; Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 1985) (holding that conspiracy plaintiff must show membership in a judicially-designated suspect or quasi-suspect class); Portman v. County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993). Accordingly, Plaintiff's First Amended Complaint is dismissed for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(b). See Lopez, 203 F.3d at 1126-27. However, Plaintiff is hereby granted an opportunity to amend. Lopez, 203 F.3d at 1127 (leave to amend is generally appropriate unless the court has determined, "that the pleading could not possibly be cured by the allegation of other facts."). III. CONCLUSION AND ORDER Good cause appearing, IT IS HEREBY ORDERED that: Plaintiff's First Amended Complaint [Doc. No. 6] is DISMISSED without prejudice for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is "Filed" in which to file a Second Amended Complaint which cures all the deficiencies of pleading noted
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above. Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff's Amended Complaint still fails to state a claim upon which relief may be granted, it may be dismissed without further leave to amend and may hereafter be counted as a "strike" under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

DATED: January 26, 2009 Honorable Janis L. Sammartino United States District Judge

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