Reece v. Sisto et al

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/8/11 RECOMMENDING that 17 MOTION to DISMISS be denied; referred to Judge John A. Mendez; Objections due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES G. REECE,

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Plaintiff,

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vs.

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No. CIV S-10-0203 JAM EFB P

D.K. SISTO, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This action is before the undersigned pursuant to Eastern District of California

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Local Rule 302(c)(17). See 28 U.S.C. § 636(b)(1). Presently before the court is defendants

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Mimis and Sisto’s (“defendants”) motion to dismiss plaintiff’s equal protection claim for failure

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to state a claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Dckt. No. 17.

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Plaintiff opposes the motion. Dckt. No. 19. For the reasons stated herein, the undersigned

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recommends that the motion to dismiss be denied.

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I.

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Plaintiff’s Allegations
This action proceeds on plaintiff’s January 26, 2010 complaint on plaintiff’s Eighth

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Amendment and Fourteenth Amendment equal protection claims against defendants. Dckt. Nos.

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1, 6. Plaintiff alleges that California State Prison, Solano, where plaintiff is currently housed,
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has a policy of only providing heat to inmates on one side of each housing unit during the winter

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and that defendants intentionally denied him heat during the winter months from 2003 through

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2010. Plaintiff alleges that as of December 2009, the heating ducts were not even connected to

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air vents inside the dormitory and that it gets so cold, “the walls sweat.” Dckt. No. 1 at 13, 19.1

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Plaintiff alleges that in the winter it is often warmer outside than it is inside, where the

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temperatures range from the high 40s to the low 50s. Id. at 40. Plaintiff claims to have been

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“tortured” every winter by the lack of heat. Id. at 12. Plaintiff alleges that prison officials

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informed him that they do not heat both sides of the housing units because “it will become too

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stuffy.” Id. at 13, 18. Plaintiff claims that this violates his rights to equal protection.

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II.

Defendants’ Motion to Dismiss
Defendants Mimis and Sisto move to dismiss plaintiff’s equal protection claim pursuant

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to Rule 12(b)(6), on the ground that plaintiff has not alleged that any defendant discriminated

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against him based on his membership in a protected class. Dckt. No. 17.

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A.

Legal Standards

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To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint

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must contain more than a “formulaic recitation of the elements of a cause of action”; it must

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contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more

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. . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of

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action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-

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236 (3d ed. 2004)). “[A] complaint must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

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(2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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This and subsequent page number citations to plaintiff’s complaint are to the page
number reflected on the court’s CM/ECF system and not to page numbers assigned by plaintiff.
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liable for the misconduct alleged.” Id. Dismissal is appropriate based either on the lack of

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cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal

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theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In considering a motion to dismiss, the court must accept as true the allegations of the

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complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe

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the pleading in the light most favorable to the party opposing the motion, and resolve all doubts

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in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S. 869

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(1969). The court will “‘presume that general allegations embrace those specific facts that are

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necessary to support the claim.’” Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256

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(1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court may

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consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp.,

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815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially

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noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including

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pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798

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F.2d 1279, 1282 (9th Cir. 1986).

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.

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1985). However, the court’s liberal interpretation of a pro se litigant’s pleading may not supply

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essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.

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1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Furthermore, “[t]he court is not required to accept legal conclusions cast in the form of factual

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allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v.

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Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). The court need not accept

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unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643

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F.2d 618, 624 (9th Cir. 1981). A pro se litigant is, however, entitled to notice of the deficiencies

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in the complaint and an opportunity to amend, unless the complaint’s deficiencies could not be
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cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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B.

Discussion

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“The Equal Protection Clause of the Fourteenth Amendment commands that no State

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shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

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essentially a direction that all persons similarly situated should be treated alike.” City of

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Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S.

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202, 216 (1982)). To state a claim under § 1983 alleging violations of the equal protection

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clause, a plaintiff must allege facts showing that he is a member of a protected class. See Harris

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v. McRae, 448 U.S. 297, 323 (1980); see also City of Cleburne, 473 U.S. at 440-41 (listing

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suspect classes). A plaintiff must also plead facts to demonstrate that the defendant acted with

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an intent or purpose to discriminate against him based upon his membership in a protected class.

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See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154

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(1999).

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Alternatively, a plaintiff may allege facts showing that he has been intentionally treated

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differently from others similarly situated without a rational basis for the difference in treatment.

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Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008); Village of Willowbrook v. Olech, 528

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U.S. 562, 564 (2000) (per curiam); Squaw Valley Development Co. v. Goldberg, 375 F.3d 936,

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944 (9th Cir. 2004), overruled on other grounds by Action Apt. Ass’n v. Santa Monica Rent

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Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007). That is, where state action does not implicate

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a fundamental right or a suspect classification, a plaintiff can establish an equal protection “class

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of one” claim by demonstrating that he “‘has been intentionally treated differently from others

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similarly situated and that there is no rational basis for the difference in treatment.’” Squaw

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Valley Development Co., 375 F.3d at 944 (quoting Village of Willowbrook, 528 U.S. at 564).

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Defendants are correct in arguing that plaintiff has not alleged that any defendant

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discriminated against plaintiff based on his membership in a protected class. However, it does

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not necessarily follow that no equal protection claim can be asserted. See Engquist, 553 U.S. at
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601 (“an equal protection claim can in some circumstances be sustained even if the plaintiff has

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not alleged class-based discrimination, but instead claims that she has been irrationally singled

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out as a so-called ‘class of one’”). Construing plaintiff’s complaint liberally, as required, plaintiff

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alleges a cognizable equal protection claim as a “class of one.” See id. at 602 (“When those who

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appear similarly situated are nevertheless treated differently, the Equal Protection Clause

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requires at least a rational reason for the difference”); N. Pacifica LLC v. City of Pacifica, 526

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F.3d 478, 486 (9th Cir. Cal. 2008) (“In order to claim a violation of equal protection in a class of

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one case, the plaintiff must establish that the [defendant] intentionally, and without rational

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basis, treated the plaintiff differently from others similarly situated.”); see also Tunstall v.

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Knowles, No. 2:08-cv-3176-WBS-JFM, 2010 U.S. Dist. LEXIS 79457, at *8-9 (E.D. Cal. Aug.

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5, 2010). Plaintiff claims that unlike other inmates in his housing unit, defendants have

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intentionally deprived him of heat during the winter months. Plaintiff claims further that the

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heating ducts were not connected to the air vents inside his dormitory and that prison officials

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claimed that it would be too “stuffy” to provide both sides of the housing unit with heat.

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Although the rational basis test is not a difficult burden to satisfy, the court cannot say at this

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stage in the proceedings that an absence of heating ducts or a feeling of “stuffiness” would

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provide a rational basis for treating plaintiff differently than other similarly situated inmates.

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Accordingly, defendants’ motion to dismiss plaintiff’s equal protection claim pursuant to Rule

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12(b)(6) because plaintiff has not alleged that defendants intentionally discriminated against him

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based on his membership in a protected class, must be denied.

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III.

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Conclusion
Accordingly, it is hereby recommended that defendants’ November 19, 2010 motion to

dismiss plaintiff’s equal protection claim pursuant to Rule 12(b)(6) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 8, 2011.

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