Nailing v. Cota et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 1 Complaint be Dismissed with Prejudice for Failure to State a Claim, without Leave to Amend signed by Magistrate Judge Erica P. Grosjean on 08/30/2018. Referred to Judge O'Neill; Objections to F&R due by 9/24/2018.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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XAVIER DMETRI NAILING,
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Plaintiff,
v.
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Case No. 1:18-cv-00565-LJO-EPG (PC)
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
COMPLAINT BE DISMISSED WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM, WITHOUT LEAVE TO AMEND
J. COTA, et al.,
(ECF NO. 1)
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Defendants.
OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE (21) DAYS
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Xavier Dmetri Nailing (“Plaintiff”) is a former state prisoner proceeding pro se and in
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forma pauperis in this action. Plaintiff filed the complaint commencing this action on April 26,
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2018. (ECF No. 1). Plaintiff alleges that his classification chrono at Avenal State Prison
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initially and mistakenly listed two sex offenses in his history. This classification was quickly
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corrected when Plaintiff told the committee it was wrong.
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The Court has screened the complaint under the applicable legal standards and finds
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that it fails to state a claim for violation of Plaintiff’s constitutional rights. The Court explains
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the legal standards below and recommends that the assigned district judge dismiss this case
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without leave to amend. If Plaintiff believes that the Court’s recommendation is in error,
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Plaintiff should file objections within 21 days of the date of service of this order.
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I.
SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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' 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 7), the Court may
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also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any
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portion thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that the action or appeal fails to state a claim upon which relief may be granted.”
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28 U.S.C. ' 1915(e)(2)(B)(ii).
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A complaint is required to contain “a short and plain statement of the claim showing
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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
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(quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting
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this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts
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“are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d
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677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a
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plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.
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Pleadings of pro se plaintiffs “must be held to less stringent standards than formal
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pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that
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pro se complaints should continue to be liberally construed after Iqbal).
SUMMARY OF PLAINTIFF’S COMPLAINT
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II.
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Plaintiff arrived at Avenal State Prison on December 6, 2017. Defendant R. Jimenez
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asked Plaintiff to go to Classification on December 10, 2017. On December 11, 2017, Plaintiff
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went to Classification. At Classification, Defendant R. Jimenez asked Defendant J. Cota “Do
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you want to review case factors?” Defendant J. Cota responded “No.”
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On December 20, 2017, Plaintiff went to see Defendant R. Jimenez in his office.
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Plaintiff requested a copy of the CDCR 128G Chrono that is generated for all inmates. The
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CDCR 128G Chrono is an overall review of an inmate’s current and past felony criminal
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history, and must be approved by all the classification members.
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Plaintiff was at that time (presumably December 20, 2017) given a copy of his 128G
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Chrono. Plaintiff noticed that under “sex offenses” it stated that he had been arrested for P.C.
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647.6.b. Under the felony sentencing handbook, that crime refers to child molestation after
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entering an inhabited dwelling without consent. The chrono also included a listing for P.C.
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647.6B, disorderly conduct: prostitution. The chrono also indicated that the “R” suffix review
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was not required.
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Plaintiff was assaulted when a similar issue arose years earlier. He feared for his life
while the chrono was incorrect.
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Plaintiff immediately filed a 602 asking for a correction to the chrono. Defendant J.
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Coto interviewed Plaintiff about the classification. Defendant K. Bay was the correctional
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counselor who had included the false information. Defendant K. Bay was charged with
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reviewing case files and records prior to listing information of any case factor.
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Once Plaintiff filed a 602, Defendants J. Cota and R. Ndoh corrected the information
and they requested Plaintiff withdraw the 602.
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Plaintiff alleges that Defendants were deliberately indifferent when they violated their
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own interdepartmental policy by allowing Defendant J. Cota to respond to the 602. Defendants
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subjected Plaintiff to substantial risk of serious harm by not correctly reviewing Plaintiff’s case
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factors. Defendants J. Cota, R. Jimenez, and K. Bay disregarded the risk of harm by failing to
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take reasonable measures to address the issue in their review.
Plaintiff asserts an equal protection challenge on the basis that “Plaintiff[’]s case factors
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in prison are a quasi[-]suspect clasification [sic].”
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///
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III.
DISCUSSION
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Under the Eighth Amendment, prison officials have a duty to protect prisoners from
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violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). To
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establish a violation of this duty, the prisoner must establish that prison officials were
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deliberately indifferent to a serious threat to the inmate's safety. Id. at 834. “‘Deliberate
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indifference’ has both subjective and objective components.” Labatad v. Corr. Corp. of Am.,
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714 F.3d 1155, 1160 (9th Cir. 2013). The prisoner must show that “the official [knew] of and
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disregard[ed] an excessive risk to inmate ... safety; the official must both be aware of facts from
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which the inference could be drawn that a substantial risk of serious harm exists, and [the
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official] must also draw the inference.” Farmer, 511 U.S. at 837. “Liability may follow only if
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a prison official ‘knows that inmates face a substantial risk of serious harm and disregards that
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risk by failing to take reasonable measures to abate it.’” Labatad, 714 F.3d at 1160 (quoting
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Farmer, 511 U.S. at 847).
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Plaintiff alleges that his classification chrono wrongfully listed prior sex offenses. The
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classification was corrected as soon as it was brought to the classification committee’s
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attention, within weeks after the document was created. Plaintiff was not injured as a result of
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the classification. He was not even threatened with injury. Plaintiff does not allege that any
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inmate saw the wrong classification or knew about it. The classification itself stated that
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Plaintiff would not be designated with an “R” suffix.
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Plaintiff’s allegations do not establish a claim for cruel and unusual punishment.
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Plaintiff has not established that he was placed at excessive risk to his safety. The fact that a
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sex offense was wrongly and temporarily on a document does not itself pose an excessive risk.
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It was an internal document, not circulated to inmates. He was not assigned an “R” suffix that
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could have identified him to inmates. He caught the error during a review of the classification,
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shortly after it was done. He was not injured or threatened with injury.
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Moreover, Plaintiff’s allegations do not establish that Defendants were deliberately
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indifferent to his safety. Plaintiff merely alleges that Defendants should have caught the error,
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not that they deliberately misclassified him. In fact, two of the defendants quickly fixed the
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error when Plaintiff brought it to their attention. In any event, Plaintiff’s allegations do not
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establish that any defendant believed that putting the offenses on the chrono itself, without any
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“R” label or other announcement to inmates, exposed Plaintiff to an excessive risk to Plaintiff’s
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health and safety.
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Other courts facing similar allegations have held that merely alleging that a defendant
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misclassified a plaintiff as having a sex offense is insufficient to state a claim for violation of
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the Eighth Amendment. Ellis v. Johnson, 2017 WL 2986583, at *5 (C.D. Cal. 2017) (alteration
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in original) (dismissing first amended complaint without leave to amend, stating “Plaintiff
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alleges all three defendants were aware that inmates with an R suffix ‘have often, in the past,
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and current affairs [sic], been assaulted leading to serious injury, by other prison inmates.’
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(FAC at 4–7.) Plaintiff does not allege that he has been attacked or threatened with attack.
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Plaintiff does not allege that other inmates know of Plaintiff's R suffix classification and that
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Defendants are aware of that knowledge. Plaintiff alleges he has difficulty sleeping, eating and
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attending to unspecified ‘work related obligations due to’ his ‘looking over [his] shoulder,
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anticipating being attacked, due to the discovery of [the] ‘R’ suffix.’ (Id. at 5.) These
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allegations in the FAC are insufficient to state a failure to protect claim.”); Petillo v.
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Kearnan, 2017 WL 1520078, at *4 (S.D. Cal. 2017) (footnote and internal citations omitted)
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(“There are no facts from which the Court could conclude that any Defendant acted with
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‘deliberate indifference’ to a serious risk of harm to Plaintiff. Plaintiff does not allege, in any
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way, that apart from having the “R” suffix that any named Defendant was actually aware of any
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known, specific threats to Plaintiff’s safety. Plaintiff does not allege that any of the named
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Defendants were aware that other inmates allegedly knew of Plaintiff’s classification status.
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Here, the Court finds that Plaintiff fails to allege that any Defendant was aware of any facts
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demonstrating an ‘obvious’ risk and failed to take any action. For these reasons, the Court
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finds Plaintiff’s failure to protect claims against all Defendants also must be dismissed for
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failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) and § 1915A(b)(1).”); Barno v.
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Ryan, 399 Fed.Appx. 272, 273 (9th Cir. 2010) (“The district court properly dismissed Barno's
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deliberate indifference claim because Barno failed to allege that he suffered any injury or threat
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of harm other than the allegedly erroneous classification itself, possible loss of a prison job, and
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temporary restrictions on visitations with minors.”).1
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The equal protection clause requires that persons who are similarly situated be treated
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alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439(1985); Hartmann v.
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California Dep't of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan,
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705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To
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state a claim, Plaintiff must show that Defendants intentionally discriminated against him based
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on his membership in a protected class, Hartmann, 707 F.3d at 1123 Furnace, 705 F.3d at
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1030, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Thornton v. City of St. Helens,
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425 F.3d 1158, 1166-67 (9th Cir. 2005), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th
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Cir. 2001), or that similarly situated individuals were intentionally treated differently without a
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rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553
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U.S. 591, 601-02 (2008), Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), Lazy Y
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Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008), North Pacifica LLC v. City of
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Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).
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Plaintiff does not sufficiently allege that he was discriminated against based on his
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membership in a protected class. Plaintiff alleges that “Prison officials/Defendants cannot treat
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someone/prisoner’s [sic] differently than the defendant treat others without reason: the reason
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upon information and belief is Plaintiff’s suspect classification.” Plaintiff does not sufficiently
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allege any suspect classification and does not allege that Defendants misidentified his criminal
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history for any reason besides mistake. These allegations do not state an equal protection
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claim.
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IV.
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The Court has screened the complaint, and finds that it fails to state a claim under the
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CONCLUSION AND RECOMMENDATIONS
relevant legal standards.
The Court does not recommend granting leave to amend. Plaintiff clearly alleged the
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The Court recognizes that Barno was not published and cites it as an example of application of settled
Ninth Circuit law to this factual scenario.
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circumstances underlying his complaint, and the Court has found that those circumstances do not
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state a constitutional violation for the reasons described in this order. For that reason, leave to
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amend would be futile.
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1. This case be DISMISSED for failure to state a claim;2 and
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2. The Clerk of Court be directed to CLOSE this case.
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These findings and recommendations are submitted to the district judge assigned to the
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case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21) days
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after being served with these findings and recommendations, Plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th
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Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
August 30, 2018
/s/
UNITED STATES MAGISTRATE JUDGE
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This Court believes this dismissal would be subject to the “three-strikes” provision set forth in 28
U.S.C. § 1915(g). Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015).
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